Woman alleging rape by husband entitled for abortion, irrespective of IPC exception: SC

The meaning of rape must be understood as including marital rape solely for the purposes of the MTP Act

The Supreme Court on Thursday said a woman alleging rape by her husband would be entitled to undergo an abortion under the Medical Termination of Pregnancy (MTP) Act, notwithstanding the exception to marital rape under the Indian Penal Code (IPC).

“Understanding ‘rape’ under the MTP Act and the rules framed thereunder as including marital rape does not have the effect of striking down Exception 2 (granted to husband) to Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC,” a three-judge bench presided over by Justice D Y Chandrachud said.

In its judgement recognising woman’s right to abortion, the bench, also comprising Justices A S Bopanna and J B Pardiwala, said since the challenge to Exception 2 to Section 375 of the IPC is pending consideration before a different bench of this Court, we would leave the constitutional validity to be decided in that or any other appropriate proceeding.

Read | Woman alone has right to decide on abortion: SC

However, the bench said, “Notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the words “sexual assault” or “rape” in Rule 3B(a) (of MTP Rules giving list of categories for abortion) 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.

“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 bench said.