SC's verdict on abortion gives women the right to reproductive choice: Can it pave the way to criminalise marital rape? Experts weigh in

Section 375 of the India Penal Code (IPC) defines rape as sexual intercourse without a women's consent as a crime with exception 2, which says the same act by a man with his wife is not rape even if it is without her consent

Priyanka ChandaniUpdated: Tuesday, October 04, 2022, 06:50 PM IST
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Supreme Court of India | File

On Thursday last week, the Supreme Court delivered a landmark verdict in support of an unmarried woman seeking termination of her pregnancy. The SC made a significant remark concerning marital rape. The bench led by Justice Chandrachud said that for Rule 3B of the Medical Termination of Pregnancy Act (MTP) and Rules, rape includes marital rape as well.

The judgement came on a plea filed by an unmarried woman challenging a Delhi High Court judgement denying her permission to terminate her pregnancy because it was the result of consensual sex. The Apex court overturned the HC order and said that all women, both married and unmarried, have the right to abortion, stating, "All women are entitled to safe and legal abortion."

The Supreme Court defined the term 'rape' in this context of rule 3B of the abortion law. As per the court, married women who become pregnant due to forced sex by their husbands will also come within the ambit of "survivours of sexual assault or rape or incest." The MTP Act further explains that termination may be permitted on the grounds of causing grave injury to the mental health of the woman.

A civil law that gives women a right over reproductive choice

The judgement surely furthered the conversation in favour of women and while there is extensive jurisprudence on the legal issue of rape in India, marital rape has not yet been recognised as a crime within the penal code of the country. As per the Indian Penal Code, rape constitutes a crime but not a forced sexual act by a man with his wife.

However, with the recent verdict, the SC validates termination of pregnancy due to forced sex by the husband. While it is unclear how the marital rape following the abortion will be validated, senior advocate, High Court, Abha Singh explains that SC has removed the discrimination between a rape victim and a married woman who is a victim of forced sex.

"MTP is a civil law so this verdict is a civil remedy. SC is trying to say that women have control over their reproductive rights. If the pregnancy is a result of forced sex she can terminate the fetus till 24 weeks, while rape victims can do that till 22 weeks. It's still not an IPC offence, it's about women's words. But the fact that the law is considering forced sex is a big step," explains the lawyer and adds that a woman who is judicially separated from her husband and gets pregnant is also considered forced sex.

"Separation sex is also treated as rape. She has the right to abortion if conceived post the separation."

Diluting the marital law exception 2 of 375 IPC

Ranjana Kumari, Women's rights activist and director of the Centre for Social Research in Delhi says that the MTP act turns down the 'virgin girl' mindset in Indian society while also paving the way for the criminalisation of marital rape in India.

"It is a welcoming move. There are two most important radical progressive aspects of SC's judgement. One is that Indian society still emphasises virginity so much and there is a denial in accepting a non-virgin girl and the court has completely turned this mentality down. SC has accepted that pre-marital sex is reality and let's not close our eyes. The girl has the right to abortion in case of unwanted pregnancy. The judgement is giving the reproductive and termination agency and right to women," she says.

She further adds that exception 2 of 375, 376B IPC gives an exception to sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

"As of now the parliament has not removed that exception but SC has clearly mentioned that there is a possibility of rape in marital relations and women do get brutalised and tortured in marriage as well. This is progressive precedent and in future, this can be used in favour of women," says the activist.

When asked if only this exception could have false accusations against men and if there will be any further verification done with regards to the complain filed by a woman, she says, "The FIR is always about the statement made by the victim. Here also the version of the woman will be taken into the consideration and then an investigation will follow. Meanwhile, if she gets pregnant, she can go for termination."

Advocate Zameer Nathani says that the judgement by Supreme Court of India has come as a messiah of justice for woman. He explains that the judgement clarifies that the technicalities should not interfere with the legal and constitutional rights of woman to medically terminate pregnancy which has been caused by any reason including marital rape or even consensual sex. "The Supreme Court of India also stated that whether the allegation of rape or sexual assault is proved before the court, the termination of pregnancy is granted to the woman which has been caused by any reason including marital rape," explains the senior counsel.

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