Court grants abortion rights for marital rape

Published on Sep 29, 2022 11:33 PM IST

In the first legal recognition of “marital rape” under an Indian statute, the Supreme Court on Thursday ruled that pregnancy of a married woman due to forcible sex by her husband can be treated as “rape” under the Medical Termination of Pregnancy (MTP) Act .

 (AP)
(AP)
By, New Delhi

In the first legal recognition of “marital rape” under an Indian statute, the Supreme Court on Thursday ruled that pregnancy of a married woman due to forcible sex by her husband can be treated as “rape” under the Medical Termination of Pregnancy (MTP) Act .

The court, in a historic judgement on abortion, removed the distinction between married and unmarried women, in the MTP Act and said even the latter can undergo abortion up to 24 weeks of pregnancy; extended the freedom to transpeople (in this case, biological women who identify as men) and minors; and said that the only person who needed to sign off on the abortion was the woman herself, obviating the need for consent from her family.

In its ruling, the court held that an “artificial distinction between married and single women is not constitutionally sustainable” since it is not only in direct conflict with a woman’s reproductive rights but would also perpetuate the stereotype that only married women have sex.

Delivering the path-breaking verdict on the right to reproductive autonomy supported by the right to access safe and legal abortion, a bench headed by justice Dhananjaya Y Chandrachud also directed that the identity of a minor, who becomes pregnant after “consensual” sex, need not be disclosed by a medical practitioner to the police or in any criminal proceedings under the Prevention of Children from Sexual Offences (Pocso) Act.

Pocso obligates doctors to compulsorily inform the police when a minor approaches for abortion through her guardian since sex with a minor is a crime. The court said protection of a minor’s identity on a request made by her or her guardian would strike a balance between the legal requirement to compulsorily inform the police about an offence under Pocso and the minor’s rights of privacy and reproductive autonomy.

The court dwelled upon various aspects of the MTP Act and the corresponding rules to state that “the rights of reproductive autonomy, dignity, and privacy under Article 21 of the Constitution give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman”.

The bench, which also included justices AS Bopanna and JB Pardiwala, was adjudicating the validity of a provision in the Act that does not allow a single woman to abort a foetus after 20 weeks while divorcees, widows and some other categories of women are permitted termination of pregnancy up to 24 weeks on account of injuries to mental health or some other hardship, including the pregnancy being the result of rape.

MARITAL RAPE

Expanding the ambit of the term “rape” under the law, the bench said it is not inconceivable that married women become pregnant as a result of their husbands having “raped” them.

“We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape... The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations,” it underlined.

The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one, said the court, adding sex and gender-based violence within the context of the family has long formed a part of the lived experiences of women.

The court clarified that it is not making a decision on the validity of a provision in the Indian Penal Code (IPC) that protects husbands from being prosecuted for marital rape since that question is already pending before another bench of the top court following a split decision by the Delhi high court in May. However, it emphasised that the definition of “rape” under the MTP Act shall include 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 framed thereunder. 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,” held the bench.

MARITAL STATUS DOESN’T MATTER

Lending a purposive interpretation to the MTP Act and a pertinent rule that sought to create a distinction between married and unmarried women for abortion up to 24 weeks, the court held that a prohibition against unmarried women to access legal abortion would fall afoul of the spirit guiding the right to equality and equal protection of laws under Article 14.

“The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes ‘permissible sex’, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman,” it asserted.

Maintaining that the benefits in law extend equally to both single and married women, the court said: “If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable.”

Stating that the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals, it exhorted for a need to legally recognize non-traditional manifestations of familial relationships to also enable such individuals to avail themselves of the benefits under beneficial legislation, including the MTP Act.

In determining whether the continuation of the pregnancy would involve grave danger to the pregnant woman’s physical or mental health, the court said, her actual or reasonably foreseeable environment may be taken into account, in addition to her own estimation of whether she is in a position to continue and carry to term her pregnancy.

The judgment came on a petition by a 25-year-old single woman, whose plea for termination of her 24-week pregnancy was denied by the Delhi high court, which advised her to rather give up the child for adoption. On July 21, the top court, however, allowed the woman to go ahead, provided a medical board certifies that there is no threat to her life from the abortion. On that day, the bench also decided to examine the scope of the MTP Act and the rules under the law that differentiate between married and unmarried women.

THE POWER OF CONSENT

In the 75-page ruling authored by Justice Chandrachud, the apex court pressed for a woman’s decisional autonomy, underlining that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorisation from a third party. It added that a registered medical practitioner, who needs to carry out the procedure under the MTP Act, cannot demand compliance with “extra-legal conditions” such as consent from an adult woman’s family, documentary proofs or judicial authorisation.

“It is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion...The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence,” it said.

Elaborating on the scope of reproductive rights, the court said that it is not restricted to the right of women to have or not have children but also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health.

“Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive health care. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence,” it held.

The right to reproductive choice also includes the right not to procreate, affirmed the top court, adding: “If women with unwanted pregnancies are forced to carry their pregnancies to term, the State would be stripping them of the right to determine the immediate and long-term path their lives would take. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity.”

Instead, the court pointed out, the State has the positive obligation to undertake active steps to help increase access to healthcare, including reproductive healthcare such as abortion. “The State must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and RMPs must be present in each district and must be affordable to all.”

Lamenting that unsafe abortions continue to be the third leading cause of maternal mortality and close to eight women in India die each day due to causes related to unsafe abortions, the court said that deprivation of access to reproductive health care, which must include access to safe, effective, and affordable methods of family planning as well as safe pregnancy, injures the dignity of women.

The court noted that it has used the term “woman” in the judgment as including persons other than cis-gender women (person assigned female at birth and continues to identify as female) who may require access to safe medical termination of their pregnancies.

The Union health ministry, represented through additional solicitor general Aishwarya Bhati in the case, had also argued in favour of the purposive interpretation of the MTP Act to support that the legal provision for abortion up to 24 weeks should extend to unmarried or single women who are in long-term relationships.

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