Supreme Court: All Women Entitled To Safe & Legal Abortion, Distinction Between Married & Unmarried Women Unconstitutional

 Medical Termination of Pregnancy Act, 1971 - All women are entitled to safe and legal abortions (Para 56) - There is no rationale in excluding unmarried women from the ambit of Rule 3B of MTP Rules which mentions the categories of women who can seek abortion of pregnancy in the term 20-24 weeks. (Para 121)

Medical Termination of Pregnancy Rules, 2003 - Rule 3B (categories of women who can seek abortion of pregnancy of 20-24 weeks) - A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 140 - Purposive interpretation given to Rule 3B to include unmarried women whose pregnancy arise out of consensual relationship. (Para 121)

Medical Termination of Pregnancy Act 1971 - Section 3(2)(b) - Termination of a pregnancy till twenty-four weeks of women if it causes risk of injury to the mental health – unwanted pregnancy can be construed as injury to mental health. (Para 62, 63, 64)

Marital Rape - Rape includes ‘marital rape’ for the purpose of MTP Rules - Rule 3B(a) -Survivors of sexual assault or rape or incest shall be considered eligible for termination of pregnancy up to twenty-four weeks – Supreme Court holds that meaning of rape must be understood as including marital rape, solely for the purposes of the MTP Act – Woman need not seek recourse to formal legal proceedings to prove sexual assault, rape or incest. (Para 70, 75, 76)

Medical Termination of Pregnancy Rules, 2003 - Rule 3B(b) - Rule 3B(b) includes minors within the category of women who may terminate their pregnancy up to twenty-four weeks – the RMP need not disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act. (Para 81)

Medical Termination of Pregnancy Rules, 2003; Rule 3B(c) -Women going through a change of marital status during the ongoing pregnancy shall be considered eligible for termination of pregnancy – distinction between married and single women is not constitutionally sustainable – benefits in law extend equally to both single and married women. (Para 90, 92)

Marital Rape - Exception 2 to Section 375 of IPC - Exception 2 states that sexual intercourse by a man with his wife is not rape, unless she is below 15 years of age – Supreme Court leaves the constitutional validity of marital rape to be decided in appropriate proceedings but states that for the purpose of MTP Act, meaning of rape includes marital rape. (Para 74, 75, 115)

Protection of Children from Sexual Offences Act, 2012; Section 19(1) - When a minor approaches a Registered Medical Practitioner for a medical termination of pregnancy arising out of a consensual sexual activity, an RMP is obliged to provide information to concerned authorities – Supreme Court states that the RMP need not disclose the identity and other personal details of the minor in the information. (Para 79, 80, 81)

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

 Civil Appeal No 5802 of 2022 (Arising out of SLP (C) No 12612 of 2022) 

X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.

DR. DHANANJAYA Y. CHANDRACHUD; J., A S BOPANNA; J., J.B. PARDIWALA; J. 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: September 29, 2022 

Print Page

Supreme court judgment limiting Marital rape of Minor Bride

The Petitioner was a registerd society registered and had since been working in the area of child rights. The society provides technical and hand-holding support to non-governmental organizations as also to government and multilateral bodies in several States in Country. It has also been involved in legal intervention, research and training on issues concerning children and their rights. The society had filed a petition in public interest with a view to draw attention to the violation of the rights of girls who were married between the ages of 15 and 18 years. Hence, present petition. 

Held, while allowing the petition:

Madan B. Lokur, J.:

(i) Prima facie it might appear that since rape is an offence under the Indian Penal Code (subject to Exception 2 to Section 375) while penetrative sexual assault or aggravated penetrative sexual assault is an offence under the POCSO Act and both are distinct and separate statutes, therefore there is no inconsistency between the provisions of the Indian Penal Code and the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO). However the fact was that there was no real distinction between the definition of rape under the Indian Penal Code and the definition of penetrative sexual assault under the POCSO Act. There was also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Additionally, the punishment for the respective offences was the same, except that the marital rape of a girl child between 15 and 18 years of age was not rape in view of Exception 2 to Section 375 of the Code. In sum, marital rape of a girl child was effectively nothing but aggravated penetrative sexual assault and there was no reason why it should not be punishable under the provisions of the Indian Penal Code. Therefore, it does appear that only a notional or linguistic distinction was sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There was no rationale for this distinction and it was nothing but a completely arbitrary and discriminatory distinction. [98]

(ii) Exception 2 to Section 375 of the Code to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It was only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution could be preserved and protected and perhaps given impetus. [105]

Deepak Gupta, J.:Concurring view

(iii) The State was entitled and empowered to fix the age of consent. The State could make reasonable classification but while making any classification it must show that the classification has been made with the object of achieving a certain end. The classification must have a reasonable nexus with the object sought to be achieved. In this case the justification given by the State was only that it did not want to punish those who consummate their marriage. The stand of the State was that keeping in view the sanctity attached to the institution of marriage, it has decided to make a provision in the nature of Exception 2 to Section 375 of Code. This begs the question as to why in this exception the age has been fixed as 15 years and not 18 years. As pointed out earlier, a girl can legally consent to have sex only after she attains the age of 18 years. She could legally enter into marriage only after attaining the age of 18 years. When a girl gets married below the age of 18 years, the persons who contract such a marriage or abet in contracting such child marriage, commit a criminal offence and were liable for punishment under the Prohibition of Child Marriage Act, 2006. In view of this position there was no rationale for fixing the age at 15 years. This age has no nexus with the object sought to be achieved viz., maintaining the sanctity of marriage because by law such a marriage was not legal. It may be true that this marriage was voidable and not void ab initio (except in the State of Karnataka) but the fact remains that if the girl has got married before the age of 18 years, she has right to get her marriage annulled. Irrespective of the fact that the right of the girl child to get her marriage annulled, it was indisputable that a criminal offence has been committed and other than the girl child, all other persons including her husband, and those persons who were involved in getting her married were guilty of having committed a criminal act. When the State on the one hand, has, by legislation, laid down that abetting child marriage was a criminal offence, it could not, on the other hand defend this classification of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the object sought to be achieved. Therefore, also Exception 2 in so far as it relates to girls below 18 years was discriminatory and violative of Article 14 of the Constitution. [183]

(iv) One more ground for holding that Exception 2 to Section 375 of Code was discriminatory was that this was the only provision in various penal laws which gives immunity to the husband. The husband was not immune from prosecution as far as other offences were concerned. Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 of Code etc. but he could not be charged with rape. This leads to an anomalous and astounding situation where the husband could be charged with lesser offences, but not with the more serious offence of rape. As far as sexual crimes against women were concerned, these were covered by Sections 354, 354A, 354B, 354C, 354D of the Code. These relate to assault or use of criminal force against a woman with intent to outrage her modesty; sexual harassment and punishment for sexual harassment; assault or use of criminal force to woman with intent to disrobe; voyeurism; and stalking respectively. There was no exception Clause giving immunity to the husband for such offences. The Domestic Violence Act would also apply in such cases and the husband does not get immunity. There were many other offences where the husband was either specifically liable or may be one of the accused. The husband was not given the immunity in any other penal provision except in Exception 2 to Section 375 of Code. It did not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the "victim wife" was aged below 18 years i.e. below the legal age of marriage and was also not legally capable of giving consent to have sexual intercourse. Exception 2 to Section 375 of Code was, therefore, discriminatory and violative of Article 14 of the Constitution of India, on this count also. [184]

(v) Exception 2 to Section 375 of Code in so far as it relates to a girl child below 18 years was liable to be struck down on the following grounds:(i) it was arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India; (ii) it was discriminatory and violative of Article 14 of the Constitution of India and; (iii) it was inconsistent with the provisions of POCSO, which must prevail. [195]

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 382 of 2013 (Under Article 32 of the Constitution of India)

Decided On: 11.10.2017

 Independent Thought Vs. Union of India (UOI) 

Print Page

Whether anticipatory bail can be granted to husband committing Rape on his wife?

 Even if for the sake of arguments, it is held that the alleged act of the petitioner does not amount to rape even under the aforesaid amended provision by the reason that the complainant happens to be his wife, but his act prima facie amounts to an offence under Section 377, IPC which provides for voluntary carnal intercourse against the order of nature with any woman also. In my considered view, any woman includes wife of a man also more particularly in view of the fact that in this provision, there is no such exception as provided in Section 375, IPC. Consequently, looking to the gravity of the offence, but without expressing any final opinion on the merits and demerits of the case, I do not find it a fit case in which anticipatory bail is to be granted to the petitioner. The application for grant of anticipatory bail under Section 438, Cr.P.C. is, hereby, dismissed.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Criminal Misc. Bail Application No. 12230 of 2015

Decided On: 30.10.2015

 Yashasvi Kant Kumar 
Vs.
 State of Rajasthan

Coram:Prashant Kumar Agarwal, J.

Citation;2016 CRLJ 1766

Print Page

When offence of marital Rape is not made out?

It is, therefore, that we shall now examine the present
controversy, with reference to Sections 493 and 494 of the Indian
Penal
Code,
which
admittedly
survive.
The
contention
of
the
learned counsel for the respondent, with reference to Section 493
of the Indian Penal Code was, that the ingredients of the offence
under Section 493 were not made out, even if the factual position,
as has been asserted by the appellant, is accepted.
Section 493 of
the Indian Penal Code is being extracted hereunder:
“493. Cohabitation caused by a man deceitfully
inducing a belief of lawful marriage.—Every man
who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully
married to him and to cohabit or have sexual
intercourse with him in that belief, shall be
punished with imprisonment of either description
for a term which may extend to ten years, and
shall also be liable to fine.”
A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should
have deceived
the woman, to believe the existence of matrimonial ties with her.
And based on the aforesaid belief, the man should have cohabited
with her.
The question to be determined on the basis of the
factual position, as has been noticed hereinabove, is whether in
the facts and circumstances of this case, it is possible to accept
such deceit, at the hands of the respondent, even if it is accepted
for the sake of arguments, that cohabitation continued between the
parties between 08.01.1994 till 23.06.1994, i.e., from the date
when the respondent was granted an ex-parte decree of divorce (by
the Additional District Judge, Chandigarh), till the date when the
respondent married Sunita Rani. We are of the considered view, that
with the setting aside of the ex-parte decree of divorce dated
08.01.1994 (on 19.02.1996), it cannot be accepted, that there was
any break in the matrimonial relationship between the parties.
Even the complaint filed by the appellant under Section 376 of the
Indian
Penal
Code
was
not
entertained
(and
the
respondent
was
discharged), because it came to be concluded, that the matrimonial
ties between the appellant and the respondent were restored, with
the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance
therefore,
consequent
upon
the
passing
of
the
order
dated
19.02.1996 (whereby the Additional District Judge, Chandigarh, set
aside the ex-parte decree dated 08.01.1994), the matrimonial ties
between the appellant and the respondent, will be deemed to have
subsisted during the entire period under reference (08.01.1994 to
23.06.1994).
In fact, the accusation of the appellant, on the
aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code)
was
not
entertained,
and
the
because of the above inference.
respondent
was
discharged,
just
For exactly the same reason, we
are satisfied that the charge against the respondent is not made
out, under Section 493 of the Indian Penal, because the respondent
could not have deceived the appellant of the existence of a “lawful
marriage”,
when a
lawful
marriage
indeed
existed
between
the
parties, during the period under reference.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.457 OF 2008
RAVINDER KAUR V ANIL KUMAR
Dated;APRIL 09, 2015.

Print Page

Marital Rape law in India needs change

Introduction

The idea of the “sacrosanct” institution of marriage dished out by the mainstream Indian cinema is a myth and is contrary to women’s perceptions of reality. Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. Social practices and legal codes in India mutually enforce the denial of women’s sexual agency and bodily integrity, which lie at the heart of women’s human rights. Rape is rape. Be it stranger rape, date rape or marital rape. The law does not treat marital rape as a crime. Even if it does, the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must be forced to accept rape within marriage as a crime. Further, women themselves must break free of societal shackles and fight for justice. They must refuse to comply with the standards applied to them as the weaker sex. This paper is an attempt to expose the discrimination, shortcomings and fallacies of the criminal justice system in India as regards marital rape. It goes on to provide arguments and reasons necessitating criminalization of marital rape. Lastly, the paper suggests certain legal reforms essential to achieve the desired objectives.

Print Page