The larger questions about criminalizing marital rape depend on the different circumstances. (Avatar)
New Delhi:
Deciding that all women, whether married or unmarried, have the right to have an abortion, the Supreme Court today also took a step in determining the crime of marital rape, saying The exception is for husbands in the definition of rape as “legitimate fiction”.
It stopped criminalizing forced sex by a husband – that’s the subject of another case – but said abortion would be allowed in such cases under the Termination of Pregnancy Act ( M-TP). It added that there would be no prerequisites of a case being filed for sexual assault, rape or incest.
“A woman can become pregnant as a result of non-consensual sex performed by her husband. Current Indian law recognizes all forms of domestic violence,” the tape was headed by Justice DY Chandrachud. said.
“Married women can also be part of a class of survivors of sexual assault or rape,” it adds, “The usual meaning of the word rape is to have sex with a person without with their consent or against their will, regardless of whether the coercion occurred in the context of the marriage.”
“Notwithstanding Exceptions 2 to Section 375 of the Indian Penal Code, the meaning of ‘sexual assault’ or ‘rape’ in Rule 3B(a) includes sexual assault or rape by a husband to his wife.” the court said.
“It’s just a legitimate fiction [the exception]… remove marital rape from rape. “The exception says that sex between a man and his wife is not rape unless she is under the age of 15. It must be emphasized here that it will persist – today’s ruling does not meaning the husband could be criminally prosecuted for marital rape. That was the subject of a case that was last heard on September 16 and will be brought up again in February 2023.” We will let the constitutional validity (exception) be decided therein or any other appropriate proceedings,” the court said today.
However, with today’s ruling, a pregnancy resulting from forced sexual intercourse in marriage can be terminated only at the will of the woman under the MTP Act. The law states that pregnancies up to 24 weeks can be terminated.
“The meaning of rape must be understood to include rape in marriage solely for the purposes of the MTP Act and the rules framed therein,” the court stressed. “Any other possible explanation might work to force a woman to give birth and raise a child with a partner that causes her mental and physical harm.”
The ruling came in a case filed by an unmarried woman who challenged various rules to allow abortions. While married women can terminate a pregnancy for up to 24 weeks, this is limited to 20 weeks for unmarried women.
The Court today considers this distinction “constitutional and artificial” and considers it a violation of Fundamental Rights.
The court said the law should not be based on “narrow patriarchal principles of what constitutes permissible sex”. “In the evolution of legislation towards a gender-equal society, the interpretation of the MTP Act and the MTP Rules must consider today’s social realities.”
