Read Time: 06 minutes

Synopsis

The Supreme Court while noting that a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband, has said that,

"We would be remiss in not recognizing that intimate partner violence is a 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 forms) within the context of the family has long formed a part of the lived experiences of scores of women."

A three-judge bench of the Top Court made these observations while holding that even unmarried women are eligible to seek termination of pregnancy of 20-24 weeks, from a consensual relationship and meaning of rape will include marital rape for the purposes of Medical Termination of Pregnancy Act.

"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 bench comprising Justices DY Chandrachud, AS Bopanna and JB Pardiwala has held.

Court has further observed that 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," the court has stated.

In his strongly worded judgment, Justice Chandrachud has further opined that it is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375.

Understanding “rape” under the MTP Act and the rules framed thereunder as including marital rape does not have the effect of striking down Exception 2 to Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC, he has added.

The Top Court has further clarified that since the challenge to Exception 2 to Section 375 of the IPC is pending consideration before a different Bench of the Supreme Court, the constitutional validity of it should be left to be decided in that or any other appropriate proceeding.

"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 court has stated.

Case Title: X vs. The Principal Secretary Health and Family Welfare Department Govt. of NCT of Delhi and Anr.