By Rhea Mogul, Vedika Sud and Esha Mitra, New Delhi, Dec 2: Behind the closed doors of bedrooms across India, the anachronistic opinions of a 17th-century jurist still guide the rules of sex between husband and wife.
Englishman Matthew Hale famously considered women to become their husband’s possession in marriage, a belief written into English common law, exported to the colonies and later abandoned over centuries in many countries – but not in India.
Here, it’s not a crime for a man to force sex or sexual acts on his wife, as long as she is over 18.
It’s almost impossible to know what happens inside marital homes in the world’s most populous country, and the intimate discussions that may or may not occur before either party initiates sex.
But experts say India’s patriarchal society demands certain behaviour from wives, and often that means a wife must comply with her husband’s wishes, whether she’s a willing partner or not.
Campaigners have been trying to change the law for years, but they say they’re up against conservatives who argue that state interference could destroy the tradition of marriage in India.
Last year, the Delhi High Court delivered a split verdict on the issue, prompting lawyers to file an appeal in the country’s Supreme Court that is expected to be heard soon.
CNN spoke with three women, contacted through social workers and non-government agencies, who accuse their husbands of rape. None of the women want to be named and are using aliases to avoid repercussions.
“I want him to be punished. I want him to serve time for his crime" -- Maya, Duncan Senkumba/CNN
Maya was 19 and in love when she married a man she’d met in college.
Unlike many Indian marriages, hers was not arranged, and her mother didn’t approve.
Maya moved in with her husband but said the family matriarch took an instant dislike to her because she comes from a lower caste. In India’s social hierarchy, some people are considered more worthy than others despite laws that seek to end caste-based discrimination.
“His grandmother wouldn’t eat from the utensils I cooked with or touched, drink water from a glass I brought her. She put me down in every way – the way I spoke, the way I dressed.
“This is why my husband and I fought a lot,” said Maya, now 21. “He told me to compromise and do what his family said. I would tell him to stand up for me, but he wouldn’t.”
Maya gripped her hands tightly as she told of the mental and physical abuse she suffered at the hands of her husband.
I had four abortions. He would force himself even when I said no. I became so weak. I would break down and cry. - Maya
In late 2021, she said her husband forced himself on her for one last time.
“I told him, ‘Do you know what they call this? It’s called rape.’ And he said, ‘Yes, I know I am raping you. You’re right. I’m raping you. Tell the authorities if you want to.’”
She didn’t, but the next day, she packed her bags and left after two years of marriage.
“I want him to be punished. I want him to serve time for his crime,” Maya said. “Until he gets punished, he will never know or realize what he has done wrong.”
A lawyer’s fight
In 2017, in an open letter published by Vogue, lawyer Karuna Nundy urged women across the country to “know your power.”
“Your right to say yes comes with the right to say no,” she wrote, urging survivors to immediately report the rape to police, go to hospital to preserve the evidence, and call a lawyer. “Shame belongs to criminals, not survivors of crime,” she wrote.
Not long before, a married woman approached Nundy and told her that her husband had raped her every night since they got married.
Nundy agreed to help her leave him, but the lawyer didn’t want to stop there – she wanted to change the law that gives men impunity to rape within marriage.
“Some issues are visceral, they don’t need thinking about,” Nundy told CNN from her office in New Delhi. “This is one of them.”
In his criminal law treatise, Hale wrote that marital rape could not be considered a crime.
“For by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto the husband which she cannot retract,” he wrote in “The History of the Pleas of the Crown,” published in 1736, six decades after his death.
Nearly three centuries later, Hale’s views on marriage, rape and even abortions, are still cited in courtrooms around the world, including in the United States.
The fact that we, as a people, are saying to women in marriage: allow yourself to be raped night after night after night – and that it is explicitly legal – you can’t stand in the face of this injustice. - Karuna Nundy, lawyer
The ruling that overturned Roe v. Wade last year, turning back the clock on women’s rights to seek an abortion in the US, mentioned Hale’s name at least a dozen times.
Marital rape was still legal in some US states up until 1993, and it was only outlawed in Britain after a landmark court ruling in 1991.
Across the world, 43 countries still do not have legislation that addresses the issue of marital rape – and among those that do, the penalties for non-consensual sex within marriage are “significantly lower” than other rape cases, according to the United Nations Population Fund’s 2021 State of World Population review.
Women alleging rape in India have some avenues of potential legal action against their husbands.
For example, they can seek a restraining order under civil law or charges under Section 354 of India’s Penal Code, which covers sexual assault short of rape, and Section 498A, which covers domestic violence.
These laws are open to interpretation and judges can impose prison sentences for sexual assault in cases where a married woman has alleged rape. But many don’t, Nundy said.
“They say, ‘If rape is exempt, then why should we find a way to use criminal law to deal with it?’” Nundy said, adding that the law must be “specifically tailored to cover the prohibited act.”
“Otherwise nobody gets justice. Neither the victim nor the alleged perpetrator,” she said.
Married women are also “ignored” when they try to file a police complaint, Nundy added.
A study published in the National Library of Medicine journal “Sexual and Reproductive Health Matters” last year suggested the same.
The study examined records from three Mumbai public hospitals from 2008 to 2017 and found that of 1,664 rape survivors, no rape cases were filed by police.
At least 18 of those women reported marital rape to the police, including 10 women who alleged rape by a former partner or husband.
Indian law allows for rape charges against a partner if the couple is separated, but according to the study, those charges weren’t pursued.
Four women were explicitly told by police that they could not do anything as marital rape was not a crime.
“The inadequate police response is of concern as all the women had suffered severe violence,” the report said.
With nowhere else to turn, Vidya approached a non-government organization, whose workers gave a name to her experience. Duncan Senkumba/CNN
Softly spoken and shy, Vidya says she never wanted a husband, but her father told her she didn’t have a choice and arranged for her to marry at 19.
She was not taught about sex before her wedding night.
“I became scared because I did not know him,” Vidya said. “I did not say anything – not no, not yes – and he never asked.”
Several years into their marriage, Vidya gave birth to a boy, and she says her husband’s demands became more violent, and he would beat her if she refused sex.
With nowhere else to turn, Vidya approached a non-government organization, whose workers gave a name to her experience.
I had heard of it happening outside, that if a girl goes out anyone can come and rape her, but when I first heard that a husband can rape his own wife, I was shocked.” - Vidya
Vidya briefly thought about leaving her husband, she said, going as far as taking her son to her mother’s house for a short period. But in the end, she said she realized she wanted to stay with him and proposed they attend marriage counselling.
He agreed, and they’re still together. “He has learned to communicate better. We don’t have problems,” Vidya, now 37, said.
She thinks rape within marriage should be criminalized – though she doesn’t want her husband jailed.
“I don’t want to send my husband to jail because he is good now,” she said. “But this law will give women the strength to come forward and stop their abuse.”
"I continue to live under his roof for the sake of my kids" - Nusrat, Duncan Senkumba/CNN
Nusrat’s husband is the son of a family friend who had badgered her parents to allow him to marry her, though he lived far away and was short of money.
“Initially my parents said no to the marriage, but he would harass us daily, and he would send his grandmother to our house, and she would say that my grandson says that if I don’t get to marry her, I will take my own life,” said Nusrat.
Nusrat moved from her village to live with his family, where she discovered he was a heavy drinker who would beat her and steal from others because he didn’t have a job.
Once she even had to sell her jewellery to bail him out of jail, she said.
Sex became a point of friction between them – he wanted it, but she didn’t.
He would try to convince me in a lot of ways, but I didn’t want to sleep with him. When he would do this daily, I had no option but to comply. - Nusrat
Nusrat didn’t refer to what happened to her as rape, but the law states that a man commits the offence against a woman if she doesn’t give her free consent – except if she’s his wife.
Now 33 years old, Nusrat is too scared to leave her husband because she has no way to support their three children.
“I am not educated. I did not study. I cannot work or earn money for myself,” she said. “I continue to live under his roof for the sake of my kids, no other reason.”
She said this is why she believes marital rape should be outlawed throughout India.
“We need it for women like me, who don’t have an avenue to leave,” she said.
According to a nationwide survey, 17.6% of more than 100,000 women ages 15-49 say they are unable to say no to their husbands if they don't want sex. Duncan Senkumba/CNN
What women say
A ceiling fan hums in a room in a suburb of western Delhi, where about 10 women sit in a circle, dressed in shalwar kameez, a traditional Indian tunic with a scarf.
They have been invited here by social workers who go house to house, building trust with women and teaching them about women’s safety and how to seek help.
CNN has agreed to change the names of the women – all wives of migrant workers from neighbouring states – because talking about sex is taboo in India and they fear backlash from their families.
Of the 10 women CNN spoke with, at least four were in marriages arranged by their parents before they turned 18 – a decision they said they could not refuse. Only two women chose their husbands themselves. All but one had children.
According to the 2019-2021 National Family Health Survey by the Government of India, 17.6% of more than 100,000 women ages 15-49 surveyed said they were unable to say no to their husband if they didn’t want sex, while 11% thought husbands were justified in hitting or beating his wife if she refused.
Rani, 26, said she has no choice but to have sex with her husband when he wants it.
He would get angry, refuse to eat, or yell at me. Saying no is not an option. - Rani
Priti, a 30-year-old mother of four, said she had no idea what sex was until their wedding night when her husband showed her a pornographic video and told her to recreate it.
None of the women said their husbands hit them but believed sex was an act of duty to be performed as a wife. Rape was seen as a violent act by a stranger.
“The patriarchal system has given men a privilege,” said Jaya Velankar, the director of Jagori, a non-profit organization that educates women about their rights and advocates on their behalf.
“He can lift his hand, he can hit you or he can throw tantrums, he can verbally abuse you. And nobody questions it. Because that is how we are indoctrinated right from childhood.”
Timeline: How India's marital rape laws have evolved since the colonial era
1860: India's colonial leaders enact the Indian Penal Code criminalizing rape except in the case of married couples where the wife is over 10 years old.
1891: The law is amended to exclude married children under the age of 12. In 1924, the minimum age was raised to 13.
2015: At least one plea is submitted to the Supreme Court, asking for the law to be amended by deleting the marital rape exemption. The petition is dismissed. India’s then minister of home affairs, Haribhai Parthibhai Chaudhary, says the act cannot be criminalized as society considers marriage to be sacred.
2016: The Delhi High Court asks the government to issue its stance on petitions challenging the marital rape exemption.
2017: In response to the Delhi High Court, the government says marital rape cannot be made a criminal offence as it could “destabilize” the institution of marriage. Later that year, the marital rape exemption is amended to increase the age to 18.
2022: January — The Delhi High Court begins hearing petitions seeking to criminalize marital rape. It asks the government to clarify its position on the matter. The government appears to change its stance and tells the High Court it is in talks with stakeholders.
May 11 — The Delhi High Court delivers a split verdict. The matter goes to the Supreme Court.
Sources: Government of India; Delhi High Court; United Nations; CNN reporting
Graphic: Christopher Hickey and Rhea Mogul, CNN
What men say
Since Indian courts began hearing the cases to criminalize marital rape, a slew of men’s rights activists have taken their objections to the streets and social media.
The Save Indian Family Foundation group has been among the most vocal, claiming women could misuse the law to falsely imprison men.
In March, the group, which claims to have 100,000 members, called for “nationwide protests against Marital Rape law and Supreme Court of India,” writing on Twitter – now known as X – that they are “ready to (un) leash hell on the system the day first fake marital rape case gets filed.”
CNN has reached out to the group.
According to the 2019-2021 National Family Health Survey, 9.7% of more than 90,000 men ages 15-49 surveyed believed a husband was justified in hitting or beating his wife if she refused sex, while 12.2% said husbands had the right to use force if his wife refused sex.
CNN asked dozens of men on the streets of Delhi for their views on marital rape and consent.
Alok Singh, a 21-year-old law student, said criminalizing marital rape would “empower” women to speak out.
“It is required,” he said. “We are seeing that marital rape cases are increasing, and people are voicing their concerns.”
But most men CNN spoke to said marital law should not be outlawed.
Rajeev Verma, a 43-year-old self-employed worker, said such a law would create “discomfort in marriages.”
A man marries for sexual pleasure. God forbid, once the woman says no, even if not audible, it will be always in your head that she could file a rape case.”- Rajeev Verma
A 52-year-old taxi driver, Ramdev Yadav, said a law against marital rape could deter people from marriage.
“Sex should not be forced, but no one will marry if this law is introduced,” he said.
One of the lawyers fighting to criminalize rape within marriage, senior Supreme Court advocate Colin Gonsalves, says the evidence from other jurisdictions suggests that married women won’t be rushing to file criminal complaints against their husbands.
“On the contrary, while women know they have a right, they are afraid of going to court,” he told CNN. “This is pretty conclusive evidence that instead of a backlash, even with the change in the law, the change on the ground is going to be very slow.”
Still, he said, “It is the most significant step in India to stop men from forcing themselves on women to whom they are married.”
Taking on the patriarchy
It has been more than a year since New Delhi’s High Court delivered a split verdict on whether marital rape should be outlawed.
Justice Rajiv Shakdher ruled in favour of criminalization, saying failing to protect married women violates the Indian Constitution.
Justice Hari Shankar disagreed.
“A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined,” Shankar wrote in his judgment. “Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?”
The decision, when it comes, will affect hundreds of millions of people in India for generations to come.
Advocates say even if wives don’t use the legal system to try to punish husbands who rape, the power to do so should impress on the nation that sex within marriage is a choice, not a right.
For Nundy, empowering women in marriage would show that India had moved on from its colonial past, casting aside the views of Hale, a man who died more than three centuries ago.
The campaign for women’s rights isn’t intended to create societal conflict, she added.
“This is not a fight of women against men,” Nundy said. “This is a fight of people against patriarchy.”