While holding that unmarried women can also seek abortion of pregnancy during the term of 20-24 weeks arising out of a consensual relationship, the Supreme Court has also held that marital rape would also form a part of 'Rape' for the purpose of Medical Termination of Pregnancy Act and Rules.

The Bench of Justice DY Chandrachud, Justice AS Bopanna, and Justice J.B. Pardiwala while holding so observed –

"Notwithstanding Exception 2 to Section 375 of the IPC,85 the meaning of the words "sexual assault" or "rape" in Rule 3B(a) includes a husband's act of sexual assault or rape committed on his wife. The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her."

The Court held that married woman may also form part of the class of survivors of sexual assault or rape. In this context, the Bench observed-

"The ordinary meaning of the word 'rape' is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women."

The Court also added that marital assault merely forms part of long list of deeds that amount to violence in the context of the family.

Furthermore, the Court also observed, "It is not inconceivable that married women become pregnant as a result of their husbands having "raped" them. The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors."

The Court held that it is only by legal fiction that Exception 2 to Section 375 IPC removes marital rape from the ambit of rape, as defined in Section 375 IPC.

Further, the Bench also highlighted that a woman need not prove the commission of rape or sexual assault to seek termination of pregnancy under the MTP Act and thus observed –

"In order to avail the benefit of Rule 3B(a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant woman can access an abortion. Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act. In fact, Explanation 2 triggers the legal presumption as to mental trauma "where any pregnancy is alleged by the pregnant woman to have been caused by rape."

Cause Title - X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.

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