Updated: Nov 17
Recently, a three-judge bench headed by Justice DY Chandrachud in the case of X vs Principal Secretary of Delhi has stated that the definition of rape under the Medical Termination of Pregnancy Act (hereinafter, “the Act”) includes instances of marital rape as well. Additionally, it was held that the distinction between married and unmarried in determining the right to abortion of women is unconstitutional. While the respect accorded to the bodily autonomy of women is laudable, if not essential, the larger question that arises out of this judgment is whether it is a stepping stone to the eventual criminalization of marital rape under the Indian Penal Code. Whether, after 162 years of the institution of the code, the autonomous rights of a woman, and the right to not be treated as a property of her husband, will be respected. The answer is complicated, but in terms of setting a precedent for the eventual criminalization of the social evil that is marital rape, Justice Chandrachud has missed out.
The judgment and the law: an overview
It is a sad state of affairs that the laws in India languish back in an archaic reality. Two examples of these relics of historic evils are India’s abortion and rape laws. A confluence of both, is a provision for women to be ‘allowed’ to terminate their pregnancy up to 24 weeks who have, under 3B(a) of the MTP Rules 2003, as amended in 2021 (hereinafter, “Rules”), survived “sexual assault or rape or incest”. Here, although it has not been stated, we are bound to refer to the definition of rape in the IPC, for the lack of any additional definition provided in the rules themselves.
Rape is defined under Section 375 of the Indian Penal Code, which provides the definition, but with the exception of “sexual intercourse by a man with his wife, the wife not being under 15 years of age”. This implies that not only does exception 2 relieve the culpability of the accused, but it altogether precludes sexual intercourse by a man to his wife from the definition of rape.
3B(a) of the MTP Rules 2003, provide that a woman may claim the right to abortion under 3(2)(a) of the Act if she is a survivor of rape or sexual assault. Now, the conundrum is that under the Act, a married woman seeking an abortion under 3(2)(a) of the Act could not do so, since the definition of rape is exclusive of marital rape. In many cases, families have used this loophole to force pregnancy on women, to create pressure on them and demand dowry, etc.
Justice Chandrachud has differed from this legal position while stating that the law must be given “purposive interpretation”, and therefore, rape for the purpose of the Act only is inclusive of marital rape. The object and purpose of the Act is said to include the prevention of bodily autonomy and trauma resulting out of pregnancy to married women. I seek to analyze here merely the question of how this judgment affects the larger question looming on the Indian society’s claims of being a liberal one, of the constitutionality of exception 2 to Section 375. But before we delve into that, let us take a look at the judgment.
In X vs Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Anr., the appellant, a permanent citizen of Manipur, claimed before the High Court that she should be allowed to terminate her pregnancy, arising outside of marriage, and Section 3(2)(a) must include within its scope unmarried women as well. The High Court opined that the case of an unmarried woman is “clearly not covered” under the section. The bench comprising of Justice Chandrachud, Justice Surya Kant, and Justice A.S. Bopanna, firstly on July 21st gave interim relief to the woman, by allowing her to terminate her pregnancy, and in their judgment on 29th September, stated that the rules of the Act must be interpreted broadly. The bench states that the purposive interpretation of the Act, furthers the constitutional mandate under the right to bodily autonomy and the right to dignity, under Article 21 of the Constitution. Further, the distinction between married and unmarried to determine these rights is invalid under Article 14. The bench goes on to expand the ambit of interpretation, by including marital rape in the definition of rape, recognizing that marital cruelty is a social fact and cannot be construed as exclusive of rape.
Impact on Exception 2: A Scanner
In various pieces, this judgment has been purported as a premise, or a stepping stone that would lead to, or at least aid in the eventual criminalization of marital rape. I argue that this is not the case. The judgment, in order to include marital rape under the scope of Rule 3B(a), relies on “purposive interpretation” of the statute to do so. It does not address the arguments the judiciary has used to uphold its constitutionality, therefore, as a precedent, it is insufficient at best, and inconsequential at worst, in criminalizing marital rape.
In the rationale used by Justice Chandrachud, the broadening of definition is strictly limited to the purpose of the Act. The judgment, while recognizing the bodily autonomy of a married woman, shies away from extending it to include her right to consent, as is recognized for unmarried women. It also recognizes the trauma caused by the violation of such consent, “The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry.” All of this, but we are left wanting the recognition of the inherent right to consent, and its overriding effect in a marriage. Therefore, the only question addressed here is the legal right of a married woman not to undergo trauma, cruelty, and the pregnancy resulting from it, and not anything else.
Further, the justification provided for exception 2, is not tackled in the judgment. While it states 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”. But if it is to be criminalized, the right to not be raped within a marriage has to be inherently recognized. In the most recent judgment on the issue, RIT Foundation v. Union of India, the Delhi High Court delivered a split verdict regarding the constitutionality of marital rape. The rationale provided by the solicitor general, Tushar Mehta and by Justice C. Hari Shankar for upholding the legality of the provision is the protection of the sanctity of marriage, procedural difficulties in prosecution, and the right to privacy of the parties to a marriage.
Herein, ideally, the judgment should have recognized the right to consent as superseding these concerns, and therefore the definition of rape should be broader. However, it categorically states that it “does not have the effect of striking down Exception 2” or “or changing the contours of the offense of rape as defined in the IPC”. Hereby, the judgment itself recognizes and partially reaffirms criminalization and culpability as issues that are larger than female autonomy, and require external considerations. Therefore, broadening the definition by itself does not result in even a subtle implication of culpability or criminality to the expanded definition.
Therefore, when we come to use this judgment as precedent, the value it holds against exception 2 is extremely weak.
Onto the positives
I duly recognize that in terms of feminist jurisprudence in India, multiple positives arise out of the judgment. But even if we restrict the conversation to the journey towards the criminalization of marital rape, the judgment spells out positives. Firstly, the judgment categorically recognizes rape within marriage to be an infliction of “mental and physical harm” on the woman, therefore falling within the definition of cruelty. Moreover, it recognizes a woman’s sexual autonomy by stating that, to avail the benefit of Rule 3B, she “need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest.” Lastly, the judgment serves as evidence for the number of issues that fall under the umbrella that is Exception 2 to Section 375. Aside from the criminal liability of the perpetrator, the right women under other legislations which rely on the definition of rape, and the perception of society at large, is majorly affected by the existence of this exception. And this judgment does well to highlight that.
The Road Ahead
It is almost ironic how a nation with the slogan “Beti Bachao” fails to recognize the right of its women over their own bodies. It is high time that the judiciary and legislature stop beating around the bush when confronted with the question of a woman’s right to her own body. We have avoided this issue for over a century and a half. We have blamed the victims, stigmatized the subject matter, and failed to educate ourselves for long enough. But the bare minimum here is to recognize that marriage cannot be a tradeoff for one’s rights over their body. And if such a tradeoff is “cardinal to the sanctity of the institution”, one wonders if such an institution is worth being protected in the first place.
*The article has been written by Suryansh Singh, 2nd Year B.A. LL.B student at National Law University, Delhi*