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Marital Rape Isn’t a Crime in India. This Lawyer Is Fighting to Change That

13 minute read
Updated: | Originally published:

In 2017, Karuna Nundy wrote an open letter to Indian women, laying out the protections in the country’s constitution if they are raped, assaulted, seeking an abortion, or demanding fair treatment from an employer. “I write to you today so you will know your power,” she wrote. “The State must enforce your basic rights, but you are in charge of your flourishing. Promise me you’ll back yourself when nobody else will.”

“I was thinking about my niece, my friend, my cousin, my client,” recalls the 45-year-old lawyer at the Supreme Court of India, sitting on her leafy green balcony in South Delhi in March. “What I wanted to say to them is that they deserve to be who they are, without having to fit into a box.”

Her readers seemed to take that message to heart. A month after the letter was published in Vogue India, a 26-year-old woman in Delhi found Nundy’s number online and called her. She told Nundy she had been raped by her husband every night since their arranged marriage two years earlier. “In India, people don’t see it as rape if you’re married,” she tells TIME over the phone five years on, requesting anonymity to speak freely about her experiences. Facing immense pressure from her family to make things work, she felt she had two options: “Either to just end my life, or to revolt, something I’d never done before.”

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The woman didn’t want to report her husband to the police or go to the courts, but she wanted to get out. Nundy agreed to help her. At the local police station, Nundy filed an affidavit stating the woman had left home of her own accord and did not want to be contacted by her family, in case they approached the police to search for her. Then she accompanied the woman to the airport to ensure she got on a flight out of the city. “I couldn’t believe Karuna Nundy listened to my story and helped me,” the woman says. “I felt like a bird finally freed from her cage.”

For Nundy, the experience made one thing clear: “The institution of marriage should not include the license to rape.”

Right now, the law would disagree. Marital rape isn’t a crime in India, one of three dozen countries—including Bangladesh, Iran, Nigeria, and Libya—where it’s still legal for a man to have nonconsensual sex with his wife. This is despite a national survey published by the government in 2018 that found that 86% of the female sexual violence survivors surveyed had been assaulted by their former or current husband. The current laws criminalize any form of sexual assault and domestic violence but prevent the crime from being called “rape” if it’s between a husband and wife—thereby reducing both severity and sentencing.

“To me, it’s one of the problems in the law that goes to the heart of the worst patriarchy,” Nundy said in court in January. “If you’re legally not allowed to sexually assault, slap, molest, or kill your wife in the bedroom, why are you allowed to rape her?”

Nundy’s work on these issues accelerated after the Nirbhaya case, the brutal gang rape and murder of a young woman on a public bus in Delhi that drew international headlines in 2012. She calls 2012 an “inflection point,” the first time that people of all ages, genders, and sexualities came out on the streets against sexual violence and violence against women. “My city was the center of this national—and, to some extent, global—protest,” she says, describing how that period transformed her. It felt as if “this is not just a woman’s problem or a girl’s problem. This is everybody’s problem.”

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Nundy has since emerged as a leading voice for gender justice and freedom of speech, contributing to the reform of anti-rape laws and fighting cases against sexual harassment in the workplace. Now she’s leading the fight to criminalize marital rape—a fight that began years ago. The first petition to do so was filed at the Delhi High Court in 2015 by a nonprofit called the RIT Foundation. More petitions followed in 2017, including one by the All India Democratic Women’s Association, which Nundy is representing in court, along with three individuals, including a survivor of marital rape. The issue was only heard in court in January; most cases in India languish for several years without a hearing in court.

The judges are finally expected to deliver their verdict in the coming months on whether to close the legal loophole on rape within marriage. “That’s the thing about law reform in India,” Nundy says. “It takes a lot of persistence.”

Nundy grew up in the national capital of Delhi. She says she was raised in an “unboxed way,” with an ambitious mother who wanted her to study at the best university, but had no set expectations about her vocation. “There was just this attitude that I needed to train myself in the best possible way and then contribute to society,” she recalls.

At the age of 15, Nundy was stalked by a classmate in school and received rape threats. When her mother reported the incidents to the head teacher, their concerns were dismissed. It was a defining moment for Nundy. “Generations of women are raised by parents to believe they can do anything and then come face-to-face with sexual violence,” she says. “Things haven’t changed enough.”

After graduating with a bachelor’s degree in economics from St. Stephen’s College in Delhi, Nundy spent a short period as a television reporter before applying to film school, influenced by her love of the work of Swedish director Ingmar Bergman. “The fact that I could be the director of my own story for a minute or two seemed interesting enough,” she recalls, laughing.

She eventually found her calling at law school at Cambridge University and later completed a master’s in law at Columbia University in New York. There she discovered critical race and gender theory and clerked for the District Judge Gabrielle Kirk McDonald, one of the few women to preside over the U.N.’s tribunal for the former Yugoslavia. Inspired by McDonald’s success as a Black commercial and human-rights lawyer, Nundy set out to chart her own path. he worked for the U.N. as a global advocacy officer, assisting the Secretary-General’s report on conflict prevention before she felt it was time to return home and devote herself to public service. “I wanted to contribute to international human rights and constitutional law from India, where the impact could be more direct,” she says.

However, it also meant that Nundy, 26 at the time, would be moving back in with her family after six years abroad. Ever the lawyer, she drew up an agreement that listed what was negotiable, like washing the dishes, as well as what wasn’t: her independence. (“If we didn’t agree, I’d live nearby.”) Over the years, her mother was diagnosed with a rare disease called cardiac amyloidosis. Being home allowed Nundy to spend time with her mother and to take life at her own pace—journaling and going for long walks. “My mother loved the skies, and I think it puts me in touch with who I am,” she says, looking up as she walks around her terrace during our interview.

These days, Nundy and her team of four lawyers work across 30 to 40 civil, commercial, and human-rights cases in India, while internationally, she serves on panels for media and freedom of speech at Columbia University and the International Bar Association, alongside David Neuberger and Amal Clooney. “She is a legal powerhouse,” says Dario Milo, a South African media-law -specialist and fellow expert at Columbia University. “Her impressive track record in high-profile and impactful litigation in India speaks for itself.”

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Still, the Indian judiciary remains a man’s world. Since its inception in 1950, the Supreme Court has had only 11 female judges out of 256, and the presence of female lawyers inside courts is still uncommon. Nundy deals with this by overpreparing—with a more robust legal strategy, by studying the argument style of her (predominantly male) counterparts, and by filing long, detailed briefs—just so there’s no doubt she’s “better than the next guy.” Ultimately, her job is to be persuasive. “I’m always toeing this line of not being seen as too aggressive, and smiling at that key moment,” she says.

Nundy’s public profile, bolstered by an active social media presence, has made her a target of online trolling at a time when India’s online spaces are especially rife with the harassment of women. In March 2021, the U.S.-based nonprofit Freedom House downgraded India from “free” to “partly free” after independent journalists, activists, and lawyers, especially women, faced increasing threats.

Nundy has learned not to think twice about blocking her trolls. “Free speech doesn’t mean you have a right to my attention,” she says. Nundy remains guarded about her private life to protect her family, but also for self-preservation: “Women in the public arena are continually asked about our personal lives, and it dilutes the focus on our work and ideas.”

The marital-rape case will be heard at a time when the Indian state and courts are increasingly deciding what women can and can’t do. In December, the government raised the legal age of marriage for women from 18 to 21 years, which some feminist activists argued could backfire—for instance, tightening the grip of parents on young women’s personal lives. And in March, one court in the state of Karnataka upheld a government order banning Muslim girls from wearing headscarves inside schools, sparking protests. Even before the pandemic, Muslim girls were at greater risk of dropping out of education; since 2020, their enrollment has further declined. “Forcing a woman to take off a hijab is as patriarchal as making her wear one,” Nundy says. “We can’t afford to shut the door to girls in school.”

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While current laws define rape and consent clearly, the exception for rape within marriage has remained, despite increased campaigning in recent years. After the Nirbhaya case in 2012, a government-appointed committee made a set of recommendations, including the criminalizing of marital rape, to reform laws to prosecute rape. The government refused to address marital rape then, saying that there wasn’t a “societal consensus” on the issue.

Women in Kolkata protest against the hijab ban in schools on Feb. 16Sukhomoy Sen—Eyepix Group/ Future Publishing/Getty Images

The exception for marital rape in India’s law exists because of the Indian Penal Code, first enacted by British colonials in 1860. Matthew Hale, the chief justice of England from 1671 to 1676, originally argued that consent to marriage itself implied consent to sex, which, once given, could not be revoked. The U.K. and other British colonies have long since overruled this, but in India, the issue has been met with fierce debate.

According to the latest research from Pew, nearly 9 in 10 Indians, including women, agree with the notion that a wife must always obey her husband. In January, Nundy’s efforts were virulently opposed by a small group of Indian men who launched a “marriage strike” on Twitter. A men’s-rights group called the Save Indian Family Foundation encouraged men to boycott marriage altogether, saying that marital–rape laws could be misused and lead to false convictions.

The Indian government seems to agree. Spokespeople did not respond to TIME’s request for comment, but when similar pleas were filed in 2017, the government argued against making marital rape a crime because it could “destabilize the institution of marriage” and “become an easy tool for harassing husbands.” The courts accepted this argument. In the latest challenge, the judicial bench has once again asked the government for its view on the matter, and questioned if parallels can be drawn between cases of rape among a married couple and nonmarried individuals.

One-third of women globally face violence at the hands of a partner, according to the World Health Organization. And even in countries where marital rape is a crime, reporting and conviction rates remain low. But for Chitra Awasthi, founder of the RIT Foundation—which first petitioned the courts to criminalize marital rape in 2015—the goal of the petitions is not just to change the law. It’s also to raise awareness. “There are many girls and women who didn’t even know that marital rape was a form of abuse. They thought it was their fate,” she says. “Even now, over and above any legal relief, it’s important to make both men and women aware of the fact that there has to be consent in having sex with your partner.”

Nundy remains hopeful that the law still has the power to change what society considers the norm. “The more [marital rape] is prosecuted, the more it will be deterred,” she says. In court, she has argued that devaluing the ability of women to give consent has ripple effects in both directions. “You’re taking away a woman’s right to say a joyful yes,” she said at the hearings.

For all the injustices she has fought in court, Nundy recognizes she’s just at the midway point in her career—and in her life. “I’m in flux and still growing,” she says. “But for the first time, I’m also thinking about what I want to leave behind.” And rather than being driven by anger about these injustices, her primary motivation will always be love. “After the patriarchy beats you out of shape and cuts you down to size, love can make you whole again.”

With reporting by Eloise Barry/London

Correction, March 18

The original version of this story misstated Karuna Nundy’s role as U.N. global advocacy officer. She assisted with the Secretary-General’s report on conflict prevention, she did not assist with peace talks in Rwanda, Mali, and Burkina Faso.

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Write to Astha Rajvanshi/Delhi at astha.rajvanshi@time.com