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Supreme Court’s ruling on the MTP Act could lead to India criminalising marital rape

Medical Termination of Pregnancy (MTP) Act, all women have the right to safe and legal abortions up to 24 weeks of pregnancy. According to the Supreme Court, it is “constitutionally unsustainable” to make any distinctions based on a woman’s marital status. 

This indicates that a married woman who requests an abortion on the grounds of marital rape has the complete legal right to do so under the MTP. In addition, the top court ruled that for the purposes of the MTP Act, marital rape must be included in the definition of rape.

While passing the Medical Termination of Pregnancy Act last year, the parliament “rightly made” no discrimination between married and unmarried women, but the “rules seemed to miss the point. ” They “had the effect of barring unmarried women” and “much more.”

Significantly, the court also questioned the validity of the IPC’s exclusion for marital rape. It stated that both chambers should review “what the SC has said regarding India’s divorce law” and that “Parliament should have modified the law.”

The SC’s opinion on India’s divorce legislation should be reviewed by both Houses. There shouldn’t be a need for divorce cases to go beyond district-level family courts. However, a lot of divorce cases wind up in the SC because it is the only option accessible to people facing a legal void when the cause is the irretrievable collapse of a marriage and the court has the authority under Article 142 to deliver “full justice.”

On Wednesday, SC drew attention to the fact that Indian divorce laws require couples to disclose their partners’ shortcomings. No-fault divorces have become more common in several nations. The Rajya Sabha approved the Marriage Laws (Amendment) Bill in 2013, which recognised irreparable failure.

More work needs to be done on the law, including adding no-fault divorce clauses. The 1954 Special Marriage Act requires significant revision. It violates privacy to require a 30-day public notice of an intended marriage. These laws need to be aggressively modernised by Parliament.

MPs from all parties should support them. The passage of these modified statutes depends on bipartisan support. The POSH Act replaced the SC’s Vishaka recommendations, just as Parliament did.

Is marital rape prohibited in India?

Not at all, In fact, it is deliberately left out of the IPC’s list of sexual offences. Sexual contact between a man and his own wife is not considered rape, according to Exception 2 of Section 375 of the Indian Penal Code (IPC), which addresses rape.

When Delhi High Court panel began hearing a petition calling for the criminalization of marital rape, A two-judge panel made up of Justices Rajiv Shakdher and C. Hari Shankar issued a divided decision in the case in May, allowing the Supreme Court to review it further.

Sex between a husband and wife can never be constituted rape, according to Justice C. Hari Shankar, who disagreed with Justice Rajiv Shakdher‘s vote to overturn the exemption. He continued by saying that it was not illegal for the law to treat consensual or forced sexual actions between husband and wife as being different from non-consensual sexual acts between strangers.

A wife was compelled to provide her husband with sex as part of the “marriage contract,” with consent playing no part in it. Following years of feminism discourse about women’s autonomy and agency as well as the right to protection and action against sexual violence of all types, the shift toward criminalising marital rape gained traction in various western countries in the 1970s.

The women’s rights movements of the 20th century included a significant portion of the anti-rape campaigns, which advocated sexual autonomy for all women over their bodies, including married women.

In some form or another, marital rape was illegal in close to 150 nations as of 2019. While some nations go the route of openly criminalising it, in others, even while marital rape is not explicitly understood as rape, there are penalties for husbands who use violence to have sex with their wives.

There are 32 nations where raping a spouse is not a crime. China, Bangladesh, Laos, Haiti, Myanmar, Mali, Senegal, Tajikistan, Afghanistan, Malaysia, Egypt, Lebanon, Kuwait, Yemen, Singapore, Libya, Oman, and other countries are among them.

In Bhutan, one of India’s neighbours, has laws that make marital rape a crime. In some nations, such as India, North Korea, Iran, Bahrain, The Bahamas, Maldives, Myanmar, Nigeria, Oman, and others, marital rape is “explicitly excluded.” While some nations, like Pakistan, have murky rules against marital rape, others, like Egypt, rely on case law to address domestic abuse.


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