Context

• The recent Supreme court judgment expands the definition of rape to marital rape for the MTP Act. Marital rape is still not criminalised. If society does not accept “marital rape” as even a moral offence, how will a woman convince doctors to terminate her pregnancy based on the exception provided by the SC’s verdict.

Background

• The Supreme Court has held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP).

What is Medical Termination of Pregnancy (MTP) Act?

• Abortion in India has been a legal right under various circumstances for the last 50 years since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971
• The Act was amended in 2003 to enable women’s access to safe and legal abortion services.

What are the Changes in Medical Termination of Pregnancy (MTP) Act, 2021?

• The gestation limit: The gestation limit for abortions has been raised from the earlier ceiling of 20 weeks to 24 weeks, but only for special categories of pregnant women such as rape or incest survivors. But this termination would need the approval of two registered doctors.
• Doctor’s approval: All pregnancies up to 20 weeks require one doctor’s approval. The earlier law, the MTP Act 1971, required one doctor’s approval for pregnancies up to 12 weeks and two doctors’ for pregnancies between 12 and 20 weeks.
• Contraceptive failure: Women can now terminate unwanted pregnancies caused by contraceptive failure, regardless of their marital status. Earlier the law specified that only a “married woman and her husband” could do this.
• In case of fetal disability:  There is also no upper gestation limit for abortion in case of fetal disability if so decided by a medical board of specialist doctors, which state governments and union territories’ administrations would set up.

What is marital rape?

• Marital rape is the act of sexual intercourse with one’s spouse without her consent.
• It is no different manifestation of domestic violence and sexual abuse.
• It is often a chronic form of violence for the victim which takes place within abusive relations.

Statistics on Marital rape in India

• The NFHS-5 survey (2019-21):
• The survey said that 32% of ever-married women have suffered spousal physical, sexual, or emotional violence, and 27% have suffered at least one form of violence.
• Twenty-nine percent of ever- married women have experienced spousal physical violence and 14% have suffered emotional violence.
• The form of sexual violence most commonly reported by women is that their husband used physical force to have sexual intercourse when they did not want to (5%).
• Four per cent reported that their husband forced them with threats or in other ways to perform sexual acts they did not want to and 3% of them reported that their husband forced them to perform any sexual acts they did not want to.
• Women in rural areas are more likely (34%) than women in urban areas (27%) to experience one or more forms of spousal violence.

Why modern India still not accepting marital rape as a rape?

• Definition: The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman.
• Non-Criminalization: Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
• Exemption: Section 375 defines rape and lists seven notions of consent which, if vitiated, would constitute the offence of rape by a man. However, the provision contains a crucial exemption, Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
• Marriage as perpetual consent: As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering marital relations. The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse, and it cannot be otherwise.

What is the link between marital rape and MTP Act?

• The distinction and the cultural ethos: Married women have a different world attire, jewellery, rituals compared to widows or unmarried or deserted women .So is the right to sexual intercourse. In contrast, unmarried women do not have a right to sex. So what does the right to terminate pregnancy mean for them
• Ownership of women’s sexuality: Unmarried women cannot have sex, married women cannot say no to sex because men own women’s sexuality. Husbands can use the legal remedy of restitution of conjugal rights against runaway wives. Ownership is integral here
• Cause of Disharmony: An unmarried woman does not have an owner. It causes confusion and disorder. Women’s sexuality is seen as a cause of disharmony.

Why marital rape must be a crime?

• Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
• Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
• Compulsive relationship: Marital rape may occur as part of an abusive relationship.
• Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
• Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Present regulations in India

• Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
• However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
• Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
• According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
• They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

Way forward

• Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control of all matters relating to her body.
• The recent judgment on the MTP Act has extended the definition of rape to marital rape which is a big step in the right direction.
• However in a society with strong social norms and value systems every stakeholder should have more than a legitimate motive. It has to play an important role.

Mains Question

Q.While abortion is available under legal regulations in the country, Discuss the relationship between the Medical Termination of Pregnancy Act and Marital Rape.

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