Forceful pregnancy of a married woman can be treated as “marital rape” for the purpose of abortion, the Supreme Court ruled on Thursday as it delivered a significant verdict recognising women’s reproductive rights and bodily autonomy, Bar and Bench reported.

A bench of Justices DY Chandrachud, JB Pardiwala and AS Bopanna made the observation while delivering its judgement on the interpretation of the Medical Termination of Pregnancy Act, examining whether unmarried or single women can be allowed the benefit of abortion up to 24 weeks like their married counterparts.

“Married women may also form part of class of survivors,” Justice Chandrachud said while reading the judgement. “Rape means sexual intercourse without consent and intimate partner violence is a reality. In this case also woman may get forcefully pregnant.”

The bench, therefore, ruled that under the Medical Termination of Pregnancy Act, the definition of rape must include “marital rape”.

The Supreme Court also noted that “intimate partner violence” is a reality and can lead to rape, Live Law reported.

“The misconception that strangers are exclusively or almost exclusively responsible for sex and gender based violence is a deeply regrettable one,” the bench said. “Sex and gender based violence in all its form in the context of family has long formed a part of the lived experiences of women.”

The judges, however, stressed that marital rape has to be considered as falling within the meaning of “rape” purely within the ambit of abortion.

Marital rape in India

The clarification came following a split decision from the Delhi High Court on whether or not to prosecute husbands for non-consensual sex with their wives.

On May 11, Justices C Hari Shankar and Rajiv Shakdher of the High Court had passed a split verdict on a batch of petitions seeking to do away with Exception 2 of the rape law under Section 375 of the Indian Penal Code. The exception states that forcible sexual intercourse by a man with his wife is not rape unless the wife is below 15 years of age.

Justice Shakdher had held that the exception was unconstitutional.

In September, the Supreme Court sought a response from the government on appeals to criminalise marital rape.

In an affidavit filed on January 12, the Centre had told the High Court that criminalisation of marital rape “could open floodgates of false cases being made with ulterior motives”.

In response to the Centre’s stand, Advocate Karuna Nundy, who represented two petitioners in the case, had said that the exception pertaining to marital rape was unconstitutional as it gave primacy to the institution of marriage over the individuals in the marriage.