One of the few nations in the world that has not yet made martial rape a crime is India. The topic has generated a lot of discussion recently in a nation where the courts are increasingly defining the right to individual autonomy as a right that should be valued and defended.
The Delhi High Court recently sought to resolve the issue, but the result was a divided decision, with Justice Rajiv Shakdher ruling that the husband’s exclusion from the crime of marital rape is unconstitutional. Exception 2 of 375, 376B IPC, was thus declared invalid since it violates the constitution. He ruled that 376B IPC, Exception 2 of 375, violates Article 14 of the Indian Constitution and must be overturned. Justice C. Hari Shankar, in contrast to Justice Shakdher, found that Exception 2 to Section 375 is based on an understandable differentia and does not violate the Constitution.
The subject of marital rape has now reached the Supreme Court, and on September 16, a bench consisting of Justices Ajay Rastogi and B. V. Nagarathna issued a notice. The court will now consider the group of petitions contesting the Section 375 of the Indian Penal Code provision, which exempted forcible sexual contact between a man and his wife.
In a landmark ruling on September 29, a bench chaired by Justice DY Chandrachud ruled that, for the purposes of the Medical Termination of Pregnancy Act and Rules, “marital rape” must be included in the definition of rape. The case was X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi.
The Court set the path for the ongoing marital rape hearing before the Supreme Court while also hinting the inclusion of marital rape for the purpose of termination of pregnancy.
The ruling emphasizes at the start that use of the term “woman” would also cover those other than cis-gender women who may also need access to safe medical termination in a progressive move and an effort to be more gender inclusive.
Significantly, the court’s decision recognized the terrible reality of intimate relationship abuse, which frequently manifests itself as rape. The Court demolished the misconception that most rapes only happen when two people are interacting, and it took into account the lived experiences of hundreds of women who have experienced gender-based violence in the context of their families and close relationships.
The Court decided that notwithstanding of exception 2 of section 375 of the IPC, which exempts marital rape from criminal prosecution, for the purposes of Rule 3B (a) of the Medical Termination of Pregnancy Rules, “rape” would encompass a husband’s act of sexual assault or rape perpetrated against his wife.
Significantly, the court’s decision recognised the terrible reality of intimate relationship abuse, which frequently manifests itself as rape. The Court demolished the misconception that most rapes only happen when two people are interacting, and it took into account the lived experiences of hundreds of women who have experienced gender-based violence in the context of their families and close relationships.
The Court decided that notwithstanding of exception 2 of section 375 of the IPC, which exempts marital rape from criminal prosecution, for the purposes of Rule 3B (a) of the Medical Termination of Pregnancy Rules, “rape” would encompass a husband’s act of sexual assault or rape perpetrated against his wife.
But in the same sentence, the Court made it clear that the Medical Termination of Pregnancy Act was the only reason to include marital rape as a form of rape and that any other interpretation would force a woman to have a child and raise it with a partner who abuses her physically and psychologically.
The Court also stated that women do not need to seek recourse to formal legal proceedings before being able to access abortion services in an effort to make abortion services more accessible and while taking into consideration the fact that rapes are not reported due to ongoing stigma, especially when it occurs in a familial setting.
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