Ruling that all women, no matter married or not, are entitled to abortion rights, the Supreme Court today also took a step towards defining marital rape, saying the exception given to husbands in definition of rape is “legal fiction.
It stopped short of criminalising forcible sex by a husband — that’s the subject of a different case — but said abortion would be allowed in such cases under the Medical Termination of Pregnancy (MTP) Act. There will be no prerequisite of a case to be filed for sexual assault, rape or incest, it added.
“A woman may get pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. Existing Indian laws recognise forms of familial violence,” said the bench headed by Justice DY Chandrachud. “Married women may also form part of class of survivors of sexual assault or rape,” it added, “Ordinary meaning of the word rape is sexual intercourse with a person without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony.”
“Notwithstanding Exception 2 to Section 375 of the Indian Penal Code, the meaning of the words ‘sexual assault’ or ‘rape’ in Rule 3B (a) includes a husband’s act of sexual assault or rape committed on his wife.” the court said. The exception states that sexual intercourse by a man with his wife is not rape unless she is below 15.
It must be underlined here that the exception will still exist — today’s verdict does not mean a husband can be criminally prosecuted for marital rape. That’s the subject of a case that was last heard on September 16 and will next come up in February 2023. “We would leave the constitutional validity (of the exception) to be decided in that or any other appropriate proceeding,” the court today said.
But, with today’s verdict, pregnancies from forced sex in marriage can be terminated merely by the woman’s will under the MTP Act. The law says pregnancies up to 24 weeks can be terminated.
“Meaning of rape must therefore be understood as including marital rape solely for the purpose for the MTP Act and rules framed there under,” the court stressed. “Any other interpretation could have the effect of compelling the women to give birth to and raise a child with partner who inflicts mental and physical harm upon her.”
The verdict came in a case filed by an unmarried woman who challenged different rules for allowing abortion. While married women could terminate pregnancies of up to 24 weeks, this was restricted to 20 weeks for unmarried women.
The court today held this distinction to be “artificial and constitutionally unsustainable”, and struck it down as a violation of Fundamental Rights.
Law should not be based on “narrow patriarchal principles about what constitutes permissible sex”, the court said. “In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today.”