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‘Marital rape’ to be included in the definition of rape if a woman wants to abort her child: What the Supreme Court said

The Supreme Court said that while forced sex by a husband is not defined as rape under IPC section 375, it is considered rape for the purpose of the abortion law

While delivering a verdict in support of an unmarried woman seeking termination of her pregnancy, the Supreme Court today made significant remarks regarding marital rape. A bench led by Justice DY Chandrachud said on Thursday that for the purpose of the Medical Termination of Pregnancy Act and Rules, rape includes ‘marital rape’.

The court was delivering its verdict on a plea filed by an unmarried woman challenging a Delhi High Court judgement denying her permission to terminate her pregnancy because it was result of consensual sex. Overturning the HC order, the apex court said that all women, both married and unmarried, have the right to abortion, saying that “All women are entitled to safe and legal abortion”.

The issue that the court was deliberating was whether the exclusion of unmarried women from Rule 3B of the Medical Termination of Pregnancy Rules is valid. This specifies the categories of women who can seek termination of pregnancy. Rule 3B mentions the categories of women whose pregnancy in the duration of 20-24 weeks can be terminated. The categories include survivors of (a) rape and incest, (b) minors, (c) change of marital status during pregnancy like widowhood and divorce, (d) women with physical disabilities, mentally ill women, (e) mentally ill women, (f) foetal malformation, (g) pregnant women in humanitarian settings or disaster or emergency situations.

The Supreme Court was defining the term ‘rape’ in this context of rule 3B of the abortion law. The Court said that married women who become pregnant due to forced sex by their husbands, will also come within the ambit of “survivors of sexual assault or rape or incest” mentioned in Rule 3B(a) of the Medical Termination of Pregnancy Rules.

The para on marital rape in the judgement said, “Married women may also form the 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 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.”

The judgment also mentioned that violence in marriage is a reality, saying, “We would be remiss in not recognising that intimate partner violence is the reality and can take the form of rape. 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 form in the context of family has long formed a part of the lived experiences of women.”

The court said that Indian law already recognises various forms of domestic violence. “We have also briefly touched upon the Exception 2 of Section 375 of IPC. Notwithstanding Exception 2 to Section 375 of IPC, the meaning of the word “sexual assault” or “rape” in Rule 3B(a) includes the husband’s act of sexual assault or rape committed on his wife,” the bench stated.

By this, the court said that while forced sex by a husband is not defined as rape under IPC section 375, it is considered rape for the purpose of the abortion law. The bench further clarified that marital rape has been included in rape only for the purpose of defining rape under Medical Termination of Pregnancy Rules, and not for rape related laws.

“The meaning of rape must therefore be understood as including marital rape solely for the purpose of the MTP Act and any other 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 clarified.

The Supreme Court also said that a woman need not prove that she was raped to seek an abortion under the law. A woman can seek to terminate her pregnancy resulting from rape without proceeding with legal procedures for the rape. For the right to abortion to be granted to a woman, the accused need not be convicted of rape charges under IPC.

Only for the purpose of the abortion act, such an act of rape need not be proved in a court or any other forum, because such a requirement will be in conflict with the MTP Act, the court said.

It may be noted that the Supreme Court is already hearing petitions relating to terming marital rape as rape. The matter went to the apex court after a two-judge bench of Delhi High Court delivered a split verdict in May this year. The apex court issued notices to in the case earlier this month.

Ayodhra Ram Mandir special coverage by OpIndia

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OpIndia Staff
OpIndia Staff
Staff reporter at OpIndia

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