Justice DY Chandrachud
Satya Prakash
New Delhi, September 29
Recognising the concept of marital rape for the purpose of abortion, the Supreme Court on Thursday said a woman becoming pregnant as a result of non-consensual sexual intercourse with her husband was entitled to seek medical termination of such pregnancy.
Editorial: Safe, legal abortion
“The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP (Medical Termination of Pregnancy) 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,” a Bench led by Justice DY Chandrachud said.
Right to bodily autonomy
Decision to carry pregnancy is firmly rooted in the right to bodily autonomy of pregnant woman... As society changes and evolves, so must our mores and conventions
Unmarried women can terminate 20 to 24-week pregnancy from consensual ties
No FIR or rape proof needed
A woman can become pregnant by choice irrespective of her marital status as right to ‘decisional autonomy’ also means woman may choose course of her life
“Notwithstanding Exception 2 to Section 375 of the IPC (which makes marital rape an exception to rape) the meaning of the words “sexual assault” or “rape” in Rule 3B(a) includes a husband’s act of sexual assault or rape committed on his wife,” said the Bench – which also included Justice AS Bopanna and Justice JB Pardiwala. The landmark verdict came on a petition filed by a 25-year-old unmarried woman seeking to abort her 24-week-old unwanted pregnancy from a consensual relationship after her partner refused to marry her. After allowing her plea in July this year, the top court had decided to take up the issue as it involved a substantial question of law, on the interpretation of Rule 3B of the MTP Rules.
It’s the woman alone who has the right over her body and is the ultimate decision-maker on whether she wants to undergo an abortion. — Supreme Court Bench
Holding that dignity formed a part of the right to privacy and the basic structure of the Constitution propounded in the Kesavananda Bharti’s case (1973), the Bench said “the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.” Noting that it’s only by a legal fiction that Exception 2 to Section 375 of the IPC removed marital rape from the ambit of rape, it clarified that its interpretation of “rape” under the MTP Act and the rules framed thereunder did not have the effect of striking down Exception 2 to Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC.
“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,” the Bench said. It extended the benefit of Rule 3B — which makes survivors of sexual assault, rape, or incest eligible for termination of pregnancy up to 24 weeks as against 20 weeks generally permissible — to both married and unmarried women.
Noting that the MTP Amendment Act 2021 intended to extend the benefits of the statute to all women, including single and unmarried women, it said, “As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice.” “It seems to us that to give Rule 3B a restrictive and narrow interpretation would render it perilously close to holding it unconstitutional, for it would deprive unmarried women of the right to access safe and legal abortions between 20 and 24 weeks if they face a change in their material circumstances, similar to married women,” the Bench said.
The Bench said, “In order to avail the benefit of Rule 3B (a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant woman can access an abortion.” It said the term ‘women’ in the MTP Act included cis-women and persons of other gender identities requiring access to safe abortion.
“Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act. In fact, Explanation 2 triggers the legal presumption as to mental trauma “where any pregnancy is alleged by the pregnant woman to have been caused by rape,” it said.
“Married women 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,” it said.
“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,” the Bench said.
“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 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 said.
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