2nd October 2022 was a landmark day in the modern society where the Honorable Supreme Court has passed some important decisions in the judgement of a case where a 25-year-old girl has put forward a plea to terminate her 23 weeks old pregnancy by the permission of the court as per the Medical Termination of Pregnancy Act 1971 and Medical Termination of Pregnancy Rules 2021. The judgement has been misinterpreted in all social media as the court has criminalized the marital rape. Even though the court has observed about the marital rape in its obiter dictum (Reasons for the judgment) but criminalizing the marital rape through the judgment has never occurred. The hearing of criminalizing the Marital rape is undergoing in the Supreme Court and awaits the final judgment only. Even though criminalizing the marital rape has never occurred through the judgment, we can undoubtedly say the judgment as a steppingstone towards the criminalization of marital rape and ensuring the reproductive autonomy of a woman. Let us discuss the status of marital rape in India and the reproductive rights of a woman through this blog.
Marital Rape in India: The present Scenario
Surely everyone who read this article is aware about the social evil rape. If you are a person who is having 18 years or more, you will be surely exposed to the knowledge and happenings in our society about the social evil called Rape. What is rape in the legal sense is more complicated. It is simply the sexual intercourse with a woman against her consent. Even though sex requires the mutual consent and cooperation of both men and woman, the legal world is giving more emphasis to the women as it strictly requires the consent of a woman without mentioning the consent of a man. This shows the supremacy of a women and her decisions in sex. Any sexual intercourse without the consent of woman is rape.
Indian Penal Code (IPC) section 375 is defining what is rape. As per the IPC 375, any sexual intercourse against the will of a woman is rape provided nothing given in the exclusions. IPC 375 excludes the sexual intercourse by a husband with his wife who is elder than 15 years of age is not rape. This exclusion does not mention about the consent of the woman in the marriage. Thus, the IPC silently but explicitly eradicating the will of a woman in sex in a marriage. The act of sexual intercourse by the husband against the will of the wife is called marital rape and unfortunately it is not a crime in India as of now. Justice Verma committee constituted after the Nirbhaya incident suggested that marriage should not be a defense for the un-consented sexual intercourse and the provision of exclusion in IPC should be prohibited. Numerous judgements of various High courts have observed the same but has not been an amendment act or nullifying decree so far. The Supreme court is hearing the case challenging the validity of the IPC 375 exception and will be anticipating a decree which criminalizing the marital rape in India.
Medical Termination of Pregnancy Act 1971 and Body Autonomy
Medical Termination of Pregnancy act is the legislative framework to regulate the termination of pregnancy (so called abortion) and the ground for doing the same. In India abortion is a taboo and is always a huddle between the ethical concerns of life and family and the bodily needs and integrity of woman. Medical Termination of Pregnancy Act 1971 in its earlier form didn’t permit the woman to undergo abortion as per her needs and it was strictly regulated only a medical termination is allowed that too it causes any health. Now the judicial interpretation has given the act giving more emphasis to the bodily and reproductive of autonomy of woman.
The significant changes happened so far in the Medical Termination of Pregnancy Act 1971 and Medical Termination of Pregnancy Rules can be summarized as below:
Pregnancies happening outside the umbrella of Marriage
Initially the MTP act gives the right only to a married woman. The term married woman was specifically included in the Act as well as in the rules. MTP act section 3, Explanation 2 says as: Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman. Here the specific addressing of married woman and her husband has been replaced by ‘any women and her partner’. Thus, the act has widened its scope outside the marriage institution. Thus, by taking purposive view of beneficial legislation like MTP act, the rights conferred by the act has been given to all thew woman irrespective of the ones who are in the marriage institution.
Increasing the Time limit of Pregnancy Termination
Initially the act permitted the termination of pregnancies for less than 14 weeks. In 2021 it has been increased to 20 to 24 weeks of pregnancy. If the pregnancy is gone beyond 20 weeks and is less than 24 weeks, it can be terminated by the approval of a registered medical practitioner. This time limit beyond 20 weeks may not be easy at all. A Delhi 25-year-old girl gone with a plea of terminating a 23-week-old pregnancy has been terminated by the court.
Including Marital Rape as a ground for Termination of Pregnancy
This is the landmark observation done by the court recently. As per the Medical Termination of Pregnancy Act 1971, pregnancy can be terminated if it terribly affects the mental health of the woman. For the purpose of this provision, the act has been explained in such a way that, the pregnancy occurred as a result of the rape might cause anguish and serious mental health concerns to the woman and can be terminated as per the above provision of the act. So, in order to figure out what is rape for the meaning of this act, again we have to revisit the IPC for the definition of the rape in which we can see, marital rape is not included. But on 2nd October 2022, the court has observed that for the purpose of the provision of this act, Marital rape can be considered as a rape. Thus, pregnancy occurred as a result of the marital rape can be terminated as per the MTP Act, but marital rape has not been criminalized.
Even though the marital rape has not been criminalized yet, the decision of the Supreme Court to include marital rape as ground for termination of pregnancy as per the Medical Termination of Pregnancy Act is a brave move and an indication for criminalizing the marital rape. Anyways as a competitive exam aspirant make sure you have gone through the present legal status of the marital rape in India and the reproductive rights and autonomy conferred by the woman in India. Enrol Entri for more such general awareness and ace your preparation. Keep studying Keep winning