Explained: the important marital rape ruling in SC abortion verdict

In a historic verdict on Thursday the Supreme Court ruled that all women are entitled to a safe and legal abortion process and making any distinction between a married and an unmarried woman in this regard is unconstitutional.

While the verdict on abortion is a huge step towards securing the bodily autonomy of women in our country, the verdict also held an important decision on another burning matter of safety of women. For the first time, and only within the ambit of the Medical Termination of Pregnancy Act the apex court ruled that the definition of rape must include marital rape.

Currently, the MTP act claims that a woman is well within her rights to terminate a pregnancy up to 24 weeks, if it causes grievous harm to her physical or mental health. A pregnancy caused by rape, is presumed to constitute a grave injury to the mental health of the pregnant woman.

It is this explanation that the Supreme Court used to justify this landmark ruling. A bench led by Justice DY Chandrachud noted that intimate partner violence is a reality that can take the form of rape, and if the MTP act does not recognise marital rape, it would compel 'a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.'

Data points to the rampant and grim reality of intimate partner violence in India. According to National Family Health Survey-5 2019-2021, 1 in every 25 women in India was reportedly subjected to sexual violence by her husband. A study in ORF showed that 4% of pregnant women have experienced spousal violence during a pregnancy. A 2017 study of India, Nepal, and Bangladesh by BMC Pregnancy Childbirth found Gender Based Violence to be a risk factor for unintended pregnancies among adolescent and young adult married women.

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While the recognising marital rape as valid grounds to terminate a pregnancy is a step in the right direction, there is still some distance to travel towards complete criminalisation. At the moment, Exception 2 of Section 375 of the Indian Penal Code decriminalises marital rape and holds that sexual intercourse by a man with his own wife, the wife not being under 18, is not rape. Following a split verdict by the Delhi High Court, the matter is now in front of the Supreme Court. The court has also sought a response from the Centre on a clutch of petitions against the Delhi high court’s verdict on the issue, but put the next hearing after five months.

Could the inclusion of marital rape as rape under the ambit of MTP point to a larger paradigm shift in our court's standing on the matter? Time will tell.