India’s Supreme Court Decision on Abortion Rights Could Go Further in Protecting Women from Marital Rape

On September 29, the Indian Supreme Court ruledthat unmarried women are now entitled to an abortion arising out of a consensual relationship. X v. Principal Secretary (Supra) —which involved a 25-year-old woman who sought an abortion at 23 weeks after her partner refused to marry her — determined that denying abortion to unmarried women was unconstitutional, closing a social “loophole” that endangered countless Indian women.

“All women are entitled to safe and legal abortion,” the high court said, noting that an October 2021 amendment — which increased the upper gestation limit from 20 weeks to 24 weeks for “special categories” of women (including survivors of rape, victims of incest, women with physical disabilities or mental illness, and minors) — does not make a distinction between married and unmarried women.

The judgment marked a significant milestone for reproductive rights in the country, not only for taking into account how social and economic status — and stigma — play into a woman’s access to health, but for how expansively it considered that intersection. In addition to codifying unmarried women’s constitutional right to abortion care, the court also held that the definition of rape for the purpose of obtaining an abortion must be expanded to include marital rape under the Medical Termination of Pregnancy Act of 1971 and Rules.

India is one of the few countries in the world yet to criminalize marital rape, defined by international law as any unwanted sexual act by a spouse or ex-spouse that is committed without the person’s consent. In 1736, during British colonial rule, British jurist Sir Matthew Hale said, “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Like other colonial hangovers, this principle remains in statute books that still dictate court decisions today.

While the verdict does not affect the criminal status of marital rape (or lack thereof), it established that non-consensual sex can and does exist among married partners, which is no small achievement. “Regardless of whether such forced intercourse occurs in the context of matrimony,” the court said, “a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband.” And now, that pregnancy can be aborted under Indian law.

In a progressive move — and a notable attempt at being more gender inclusive — the judgment goes on to stipulate that usage of the term “woman” must also include trans and nonbinary persons, who may also require access to safe medical termination of their pregnancy.

While marital rape continues to be sheltered under the Indian Penal Code, there’s hope for criminalization in the near future. On May 11 of this year, the Delhi High Court delivered a “split verdict” in a batch of petitions challenging the exception to Section 375 of the Indian Penal Code that exempts forceful sexual intercourse by a man of his wife from the offense of rape. A split verdict occurs when two judges deliver contrasting judgments, forcing the matter before the court of the chief justice, who then refers the case to a larger bench. After a three-judge bench delivers its opinion, those who have lost the case can make a further appeal to a larger bench of five judges, known as a constitution bench. The issue is now before the Supreme Court, which, on September 16, requested the union government’s response as the defendant to petitions (amounting to an appeal) against the split verdict. The government has until the end of the year to reply.

For now, at least, the verdict in X v. Principal Secretary (Supra) is a victory for bodily autonomy for all Indians, and signals promising change ahead to further protect women from all forms of sexualized violence by anyone — including their partners.