By including marital rape survivors under the definition of sexual assault survivors who are eligible to terminate pregnancies beyond the 20-week deadline in law, the Supreme Court has moved the needle on the marital rape debate.
“Married women may also form part of the class of survivors of sexual assault or rape… 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 recognising that intimate partner violence is a reality and can take the form of rape,” the bench of Justices D Y Chandrachud, A S Bopanna and J B Pardiwala said.
The ruling clarified that its interpretation only applies to the Medical Termination of Pregnancy Act and would not have any effect on the challenge to the marital rape exception under the Indian Penal Code that is pending before the Supreme Court. However, experts see this as a step in the direction of eventually removing the marital rape immunity in law.
“In the evolution of law, nothing really happens in one go and is inevitably a struggle – this is what we saw with Section 377 as well. You take a tiny step forward, and are then pushed back. But the SC judgement today was definitely a tiny step forward,’’said senior advocate Rebecca John who has been assisting the Delhi High Court in the marital rape case as an amicus curiae.
In May this year, a division bench of the Delhi High Court delivered a split verdict on a plea to do away with the IPC exemption for ‘marital rape’ and an appeal against this is pending before the Supreme Court.
Although the case involved rights of unmarried women, the Supreme Court interpreted the Rule 3B (a) that states “survivors of sexual assault or rape or incest” as one of the seven categories of women who can seek abortion beyond the 20-week deadline.
“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 ruling said.
However, it will have to be seen how the ruling can be operationalised while marital rape is exempted from the definition of rape in law. The MTP law provides a framework for medical practitioners to determine when it is legal for abortions to be performed.
The ruling stated that “there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act”.