Supreme Court verdict on abortion dilutes provision that saves 'marital rape' from criminality

Satya Prakash

New Delhi, October 2

The Supreme Court’s verdict expanding the ambit of abortion law has punctured the legal fiction that saves “marital rape” from criminality even as it left the constitutional validity of Exception 2 to Section 375 of the IPC to be decided in an already pending proceeding.

Analysis

This is for the second time that the top court has diluted the legal fiction under Exception 2 to Section 375 which saves ‘marital rape’ from being categorised as a crime

Section 375 of the Indian Penal Code (IPC) defines rape as sexual intercourse without consent and against the will of a woman. But Exception 2 to Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will.

A three-judge Bench led by Justice DY Chandrachud on September 29 allowed a woman becoming pregnant as a result of non-consensual sexual intercourse performed upon her by her husband to seek medical termination of such pregnancy.

Noting that it’s only by a legal fiction that Exception 2 to Section 375 removed marital rape from the ambit of rape, as defined in Section 375, it said, “The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP (Medical Termination of Pregnancy) Act and any rules and regulations framed thereunder.”

However, it said the constitutional validity of Exception 2 to Section 375 would be decided in the petitions against the Delhi High Court’s split verdict on marital rape. This is for the second time that the top court has diluted the legal fiction under Exception 2 to Section 375 which saves “marital rape” from being categorised as a crime.

In October 2017, it had ruled that sex with one’s minor wife would amount to rape. It watered down Exception 2 to Section 375, holding that it was inconsistent with Juvenile Justice Act and Protection of Children from Sexual Offences Act that fixed the age of consent of the girl at 18.

While, the Law Commission (172nd Report, 2000) has opposed criminalising marital rape, Justice JS Verma Committee (2013) report favoured it. The Centre has maintained that criminalising marital rape will have very far-reaching socio-legal implications and a meaningful consultative process with various stakeholders, including state governments, was needed.

It would be interesting to see if the Supreme Court continues with its activist approach or leaves it to Parliament to take a call on the contentious issue.