NEW DELHI: In an important verdict reinforcing bodily and decisional autonomy of the pregnant woman, the Supreme Court on Thursday, also for the first time, recognised marital rape for the purpose of unwanted pregnancy for abortion and held that rape under Medical Termination of Pregnancy Act includes a husband’s act of sexual assault or rape committed on his wife.
Though the protection given to marital rape under penal provision for rape in Indian Penal Code is under challenge in Supreme Court and is pending, today’s verdict recognised it under as far its application in civil law like MTP Act. A bench of Justices D Y Chandrachud, A S Bopanna, J B Pardiwala said that it is not inconceivable that married women become pregnant as a result of their husbands having “raped” them which could be a ground for abortion of unwanted pregnancy.
“Married women may also form part of the class of survivors of sexual assault or rape. The 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. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape,” Justice Chandrachud, who penned the verdict for the bench, said.
“The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women,” the bench said.
The court said that MTR Act and IPC are applicable in different speheres and understanding “rape” under the MTP Act as including marital rape did not have the effect of striking down Exception 2 to Section 375 on offence of rape whose validity is to be decided by another bench.
“It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them. The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors,” it said.
“Notwithstanding Exception 2 to Section 375 of the IPC, 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 meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her,” the bench said.
The court also held that in case of pregnancy arising out of sexual assault it was not necessary that the offender be convicted or criminal case be registered before the pregnant woman can access an abortion,
After a split verdict by Delhi High Court on whether marital rape could be brought within the ambit of offence of rape which at present is exempted, the Supreme Court decided to examine the issue and sought response from the Centre.
A bench of justices Rajiv Shakdher and C Hari Shankar of the HC differed in their reading of the exception under section 375 IPC that shields husbands from a rape charge by wives.
Justice Shakdher, who headed the division bench , had favoured striking down the marital rape exception and said it would be tragic if a married woman’s call for justice is not heard even after 162 years since the enactment of the Indian Penal Code (IPC). But Justice Shankar, had said the exception under the rape law is not unconstitutional and was based on an intelligible differentia having a rational nexus with the object of the exception as well as section 375 (rape) of the IPC itself.
As the High Court had allowed the parties to approach the Supreme Court for a final say on the matter saying it involved substantial questions of law which required a decision by the top court, the PIL petitioners filed appeal in the apex court.
The HC’s split verdict came on PILs filed in 2015 and 2017 by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law. Later two NGOs — Men Welfare Trust (MWT) and Hridey — joined the proceedings opposing the batch of petitions seeking criminalisation of marital rape.
Agreeing to hear their plea, the apex court issued notice on petitions challenging Exception 2 to Section 375 which provides that charges of rape cannot be attracted against a man who has non-consensual sex with his wife. The bench said that similar matter was also pending in the court and posted the case for February for hearing.