Does rape within marriage count? To India’s courts, no.

In Mumbai’s informal settlement of Dharavi, women know they can turn to Amina. As a volunteer with the Society for Nutrition, Education and Health Action (SNEHA), a nonprofit that works on issues of women’s health and safety, she’s always out and about, checking in with women in her neighborhood and supporting those facing violence at home. She urges them to call the police help line or visit the crisis center, but as a survivor herself, she understands why many don’t.

For almost 20 years, Amina – whose name has been changed to protect her identity – faced relentless abuse from her husband. He controlled her movements and finances. If she were even 10 minutes late dropping their children off at school, she was beaten and locked outside their home. Her neighbors knew about some of the abuse, but what they couldn’t know, she says, was that “he forced himself on” her as well. At the time, Amina didn’t even understand that this was rape. “I always felt like what was happening to me was wrong, but then I’d think, he’s my husband,” Amina says about the sexual violence. “Even today, things are the same way. Women can’t easily open up about it.”

One in 3 Indian women between the ages of 18 and 59 say they’ve experienced some form of spousal violence, according to government data, and further analysis shows Indian women are 17 times more likely to experience sexual violence from their own husband than anyone else. Yet India remains one of the few democratic countries that doesn’t consider nonconsensual sex within marriage to be rape. 

A two-judge bench of the Delhi high court is currently mulling over petitions to strike down the marital rape exception. But many, including government representatives, argue that expanding the definition of rape is antithetical to the institution of marriage in India. It is this view, petitioners and experts say, that shrouds the issue in shame and keeps women from seeking support. 

“We have seen that the husband uses sexual violence as a means to exert power over his wife,” says Mariam Dhawale, general secretary of All India Democratic Women’s Association, one of the petitioners. She attributes this behavior to a “patriarchal thinking that once a woman is married, she has no agency, she has no right to refuse her husband.”

Judgment was reserved in late February, and a verdict is expected any day. Yet no matter what the court decides, advocates say the road to justice will be long. 

Legal and cultural battles

In India, the push to criminalize marital rape goes back decades. In 1983, following the rise of a women’s movement set on tackling India’s complacency toward sexual violence, lawmakers amended India’s rape laws for the first time in 100 years. Victories included amendments acknowledging custodial rape and rape by authority figures, and new measures to protect survivors’ identities. India also established a section of law against cruelty by husbands and husband’s relatives, including dowry-related harassment. But they weren’t able to close the marital rape loophole. 

In 2013, following the brutal rape of a young woman in the capital, New Delhi, a committee instituted by the government to reassess sexual assault laws recommended the marital rape exception be removed. Yet Indian parliamentarians did not act on the recommendation.

“How can an offense not be an offense only because the perpetrator is different?” asks Saumya Uma, law professor and director of the Centre for Women’s Rights at Jindal Global Law School, via email. “In the face of fundamental right to life, dignity, privacy, and equality, the marital rape exemption is bad in law and must go.” 

The case currently before the high court dates back to 2015, and in a 2017 affidavit, the government strongly opposed the petitions, stating that “what may appear to be marital rape to an individual wife may not appear so to others.” It also held that removing the exception “may destabilize the institution of marriage” and would offer women “an easy tool for harassing the husbands.”

Hearings held earlier this year caused an uproar among self-described men’s rights activists, who called for a marriage strike on Twitter. They also echoed the government’s concerns about wives filing false cases, fears that do not match the reality on the ground. 

In fact, both data and experts highlight that most cases of domestic violence, especially sexual abuse, go unreported. 

This is in part due to powerful cultural norms about women’s role within families. At their wedding, many women are told to maintain the family’s pride and conceal its shame, says Renu Mishra, executive director of the Lucknow-based nonprofit Association for Advocacy and Legal Initiatives Trust. In India, where only 20% of women are part of the labor force and an even smaller percentage own land or property, lack of economic independence also plays a huge role in married women not reporting sexual violence, she adds. Ms. Mishra says she has seen firsthand that most laws meant to prevent gender-based violence are seldom effectively implemented because the society and justice system continue to be patriarchal. 

Those who do report domestic violence are likely to encounter apathy from police or harassment from their husband or family members, says Nayreen Daruwalla, program director of prevention of violence against women and children at SNEHA. “The change has to be systemic,” she says.

Path forward

In the face of rape and violence, Indian wives have few options. In a country with a divorce rate of 1.1%, most women feel unable to walk out of an abusive marriage. In 2016, over one-third of global female deaths by suicide were Indian women, with married women making up the largest proportion.

In Mahoba district of Uttar Pradesh, Usha Agrawal, a caseworker for Association for Advocacy and Legal Initiatives Trust, has counseled many women dealing with domestic abuse. She says the violence often starts with wives refusing to fulfill husbands’ demands in the bedroom, and even after years of abuse, many feel they’d have nowhere to turn if they filed a complaint. “They struggle to arrive at a decision quickly, and end up bearing this kind of violence and torture every day,” she says. 

This is what happened with Amina, who today regrets not walking away from her marriage earlier or seeing her legal case through. She lives alone with her children now. “Generations are passing by; so many years have been lost. But women are still facing the same difficulties,” she says. “The afflicted are still afflicted.”

The path forward requires vast social, cultural, and legal change, but there is reason for hope, experts say. Despite barriers, data shows that some women do report violence at home – nationally, about 30% of the cases categorized as crime against women in 2020 were registered under “cruelty by husband or his relatives.”  

That’s at least in part due to advocates like Ms. Agrawal and Amina offering women the language and resources to confront what’s happening to them. Moving forward, experts say, India must acknowledge that all women are entitled to full bodily autonomy – regardless of their marital status – and they agree that striking out the marital rape exception would be a step in the right direction.

“It opens up a door for women to ask for justice,” says Ms. Dhawale of the All India Democratic Women’s Association.