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In a recent Supreme Court ruling in India, the high court ruled that regardless of marital status, all women have the right to abortion access up to 24 weeks into pregnancy. This ruling updates the previous precedent set in the Medical Termination of Pregnancy Act (MTP Act), which permitted abortion with specific exceptions, such as with the advice and permission of a certified medical doctor due to fetal anomaly or women with disabilities. That being said, this recent ruling collides with existing laws establishing marital rape as a legal institution within marriage. The bench recognized the marital rape does in fact constitute as rape, given the circumstance that a married women becomes pregnant because she is raped by her husband; however, the court’s acknowledgement does not change the validity or constitutionality of the current law decriminalizing marital rape. 

Section 375 of the Indian Penal Code outlines “Rape” and what circumstances legally constitute sexual assault. However Exception 2 of Section 375 reads, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This provision is largely regarded as the marital rape provision of Indian Penal Code, established in 1860 under British colonial rule. The court will hear arguments questioning the validity of the marital rape provision in March 2023, following divided decision in May from the Delhi high court. 

In terms of the Supreme Court’s recent abortion ruling, the appellant, a single 25-year-old woman, was not granted authorization to terminate her pregnancy by the Delhi High Court. Her pregnancy was 22 weeks along. The woman had several justifications to not carry the pregnancy to term, citing concerns over her mental health and financial limitations to support a child. The state court did not rule in her favor, arguing that she had no constitutional right to terminate the pregnancy or could instead consider giving up the child for adoption. For single women, pregnancies could only be terminated up to 20 weeks into the pregnancy. 

The Medical Termination of Pregnancy Act legalized abortion in 1971. In 2021, the MTP Act was amended to include more categories of pregnancy women, including minors, victims of rape, divorcees, widows, and those suffering from diagnosed mental illness. These newly included categories of women were allowed to receive abortions up to 24 weeks. 

The major category of women still not included in the provision, however, was single women. The court finally ruled in the recent case that single women were in fact eligible to receive abortions up to 24 weeks into pregnancy. The court’s defense of the ruling cited that the MTP Act did not intend to differentiate between married and unmarried women. Furthermore, an interpretation of the MTP Act which only includes married women was discriminatory to unmarried women and therefore violates their constitutional right to equality under Article XIV of the Indian Constitution. The court held that “the right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.”

An indicative trait of this landmark ruling is the extension of abortion rights unto those victims of marital rape, a type of sexual assault not criminalized in the Indian Penal Code. This categorical exclusion has been challenged several times and upheld by the courts, but the Supreme Court will hear arguments again given the new ruling including their eligibility to receive an abortion. 

In the Indian Penal Code, domestic violence refers to “any form of violence” (IPC 498A), and rape is defined as any form of non-consensual or coerced intercourse. Rape under the condition that a husband forces himself unto his wife presents an exclusion. 

Policymakers at the Union Government, India’s central governing body and interest groups have submitted briefs in support of the marital rape provision. The defense largely relies on two major premises: “consent in perpetuity” and “expectation of sex.” 

The idea of consent in perpetuity places its defense in the idea that when women consent to marriage, they also consent to any future sexual engagements with their partner. This gender imbalance distorts the definition of consent, stripping married women of their agency. 

Marriage, they further argue, is contingent on sex, but more specifically, for procreation. The institution of marriage has a general purpose of procreation; therefore, women when consenting to marriage also consent to sex. 

In a country struggling with overpopulation and mitigating an ever increasing birth rate, procreation as the goal of marriage has not been historically supported by government efforts. The government infamously underwent sterilization efforts; initially voluntary and bound with a stipend, they turned involuntary, and 6 million men were sterilized in the year 1975. Efforts have since changed, refocusing on gender discrimination and targeting young girls and women in newer, smaller scale sterilization efforts, where 4 million sterilizations, (less than 100,000 on men), were carried out between 2013 and 2014.  

The Union Government has the power to amend the Indian Penal Code, deleting the marital rape exclusionary clause and including this form of sexual assault under the criminalized definitions of rape. The Supreme Court in future rulings could also overrule state High Court rulings, such as the 2021 case Dilip Pandey & Ors. v. State of Chhattisgarh, which held that forced or unwanted sexual intercourse between a husband and wife does not constitute rape. 

However, many policymakers in both the state and Union government have focused more on the institution of marriage in India rather than constitutional rights that “no person shall be deprived of his life or personal liberty except according to a procedure established by law.” (Article XXI), and equal protection under the law clauses found in both Article XIV and Article X. The Union Government and Dehli high court submitted recent briefs saying that the immunity provision is essential or women will randomly accuse their husbands of rape and all men will be unprotected from their wives. Women have other resources, such as divorce, they argue, which according to Divorce by Mutual Consent Under Hindu Marriage Act of 1955 provisions (note that grounds vary for Muslim marriages based on Islamic rules), can only be obtained through mutual consent or fault of the one party, a difficult argument to make if the IPC declares marital rape legal. And the Supreme Court has mostly refused or stalled cases on marital rape, recently dismissing a plea for litigation in 2021 before accepting a case for March 2023. 

Although the Supreme Court has recognized important reproductive autonomy of women in India, this landmark ruling is hindered by existing legislation that limits the agency of women in other aspects of their lives. Gender imbalance in India, therefore, is exacerbated by social stigma and lack of resources for women to exercise autonomous decision making. Even if the Supreme Court rules in favor of striking down the marital rape provision, women who are victims of rape in their marriage will still face massive barriers in filing charges, thorough litigation, expensive fees, applying for divorce, cultural and social chastisement, and so on.  

This disregard and neglect of women’s rights and protection surpasses laws and regulations in India; there are over thirty countries where married women face no marital rape protection under the law once married. Women are still being seen as property within marriage and treated as second class citizens – stark evidence of gender discrimination and inequality in the 21st century.