All women irrespective of marital status entitled to abortion: Supreme Court

Supreme Court's judgement is a shot in the arm for those opposing marital rape exception in the pending case.

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IN a judgment that may have ramifications on the validity of the marital rape exception in the Indian Penal Code(IPC), the Supreme Court on Thursday held that the meaning of rape must be understood as including marital rape under the Medical Termination of Pregnancy Act 1971 and the rules made thereunder. It held that 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. It is not inconceivable that married women become pregnant as a result of their husbands having "raped" them.

"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. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors", said a bench comprising Justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala.

The bench also observed that a married woman may also form part of the class of survivors of sexual assault or rape.

"The ordinary meaning of the word 'rape' is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women", the bench flagged.

The bench clarified that it was not touching upon the constitutional validity of the marital rape exception since the matter on the subject is already pending adjudication before a different bench of the Supreme Court.

Also read: When will abortion become a right for every pregnant person?

The bench was ruling on a petition filed by an unmarried woman who was denied termination of her 24-weeks pregnancy by the Delhi High Court. The case involved interpretation of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 ('MTP Act') and Rule 3B of the Medical Termination of Pregnancy Rules, 2003 ('MTP Rules'). Section 3(2)(a) of the MTP Act permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks. Clause (b) of this sub-section permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty-four weeks for such categories of women "as may be prescribed by Rules made under this Act". However, an opinion must be formed by not less than two registered medical practitioners that inter alia "the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health".

The Rules framed under the MTP Act for the purpose of "categories of women" as mentioned in section 3(2)(b) exclude 'unmarried' women. It, however, includes other categories of women such as divorcees, widows, minors, disabled and mentally ill women, and survivors of sexual assault or rape. It is on this ground that the Delhi high court refused to allow the petitioner to terminate her unwanted pregnancy.

On July 22, the Supreme Court by an interim order allowed the woman to terminate her pregnancy subject to the opinion of the medical board. It thereafter heard the matter since it involved a substantial question of law as to the interpretation of Rule 3B of the MTP Rules.

Also read: Delhi High Court delivers split verdict on criminalisation of marital rape

Ruling over the ambit of Rule 3B, the bench gave purposive interpretation to it and held the object of the MTP Act and Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B.

The bench added that 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.

"Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. 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 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", the bench held.

Referring to the Statement of Objects and Reasons of the MTP Act, the bench opined that they do not make a distinction between married and unmarried women. Rather, all women are entitled to the benefit of safe and legal abortions.

The bench added that the MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy.

"Implicitly, this right also extends to a right of the pregnant woman to access healthcare facilities to attain the highest standard of sexual and reproductive health. It is meaningless to speak of the latter in the absence of the former. Reproductive health implies that women should have access to safe, effective, and affordable methods of family planning and enabling them to undergo safe pregnancy, if they so choose", it added.

On the rule of State, the bench opined that it 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. It added that the Registered Medical Practitioners(RMPs) must treat all patients equally and sensitively.

"Treatment must not be denied on the basis of one's caste or due to other social or economic factors. It is only when these recommendations become a reality that we can say that the right to bodily autonomy and the right to dignity are capable of being realized", the bench held.

Click here to read the judgement.