Marital Rape: Is it Legally Recognized in India?

Marital Rape | Legal | India | World | 04th October 2022 | Virtual Wire



Recent controversy broke out after the Supreme court verdict in the case of "X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi", on September 29th, where the bench headed by J. Chandrachud said, "Meaning of rape will now include "marital rape" for the purpose of Medical termination of pregnancy act, (MTP) and medical termination rules 2003.

Rape in simple terms is forced sexual intercourse by a man with a woman, although women aren't the only victims of such crime as instances have been reported so far where men and transgenders are victims of it, however, it's another point of discussion. Marital rape is committed when a husband against the will of his wife had sexual intercourse with her. Since the judgment has been pronounced, it created a fuss in the mind of the people as to whether marital rape is legally recognized now in India? So for them, the answer lies in midway because it hasn't been classified as an offence under the Indian Penal Code, 1860. Instead, the judgment explicitly mentioned that "wives are entitled to abortion if the child is conceived out of undesired/forceful sexual intercourse within 20-24 weeks of the pregnancy" under Rule 3b(a) of the MTP Act,1971.


The contradiction also lies with the exception given in section 375 of IPC as it "excludes the offence of rape if committed by husbands, it rather states that sexual intercourse by the husband with his own wife does not amount to rape if the wife is above 15 years of age"Therefore, the Supreme court in the above-mentioned case ascertained that the autonomy to decide whether to carry the child or not in case of forced sexual intercourse lies with the woman and that if the act of rape is committed by the husband will not be a punishable offence under IPC, 1860. The judgment is oblivious of the fact that "it gave absolute decision-making power in the hands of the wife and raises the concern about father's right over his unborn child, what if he wants his wife to give birth to the child and wife may upon the false pretext of undesired sex demand for abortion, then the father isn't left with any legal recourse to prevent it".


In consonance with the present case, the Supreme court in its previous rulings has laid down that, in considering the overall wellbeing of the child and mother, unwarranted pregnancy may cause grave injury to the mental and physical health of the woman, hence she must be entitled to decide for the unborn child in her fetus. It is difficult to say the persuasive value of the judgment as the present verdict leaves scope for misuse in the hands of wives under certain circumstances. Besides, the increasing crime rate against women in India cannot be overlooked, so, it can be considered a landmark step by the supreme court in this direction.

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