Sexual assault by a man of his wife can take the form of rape, the Supreme Court said in a significant judicial recognition of ‘marital rape’ on September 29.
The Supreme Court said this in a judgment which upheld a single women’s right to abort an unwanted pregnancy of between 20 and 24 weeks. But the court also dealt with how married women, like single women, were exposed to sexual assault within the family and suffer forced pregnancies.
Also read: Explained | Marital rape in India: The history of the legal exception
“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 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 Bench led by Justice D.Y. Chandrachud held.
Marital assault merely formed a part of a long list of deeds that amount to violence in the context of the family, the court noted. “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,” Justice Chandrachud observed.
Marital rape is not recognised as an offence under the Indian Penal Code (IPC). Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape. Another Bench of the Supreme Court is currently hearing appeals to remove the Exception. The judgment sends a powerful message and may be cited a timely precedent before the apex court Bench hearing the marital rape case.
Justice Chandrachud, who authored the judgment, said Medical Termination of Pregnancy Act recognises a husband’s act of sexual assault or forced intercourse committed on his wife as ‘rape’.
Editorial | The importance of consent: On marital rape
It said the Exception to Section 375 (rape) in the IPC was only a “legal fiction”.
However, the court stopped short there, saying understanding ‘rape’ under the MTP Act would not have the effect of striking down Exception 2 to Section 375 IPC. It said the challenge to the Exception was pending consideration before a different Bench of the Supreme Court. “We would leave the constitutional validity to be decided in that or any other appropriate proceeding,” Justice Chandrachud said.
