Women, married or unmarried have the right to safe & legal abortion: SC

Abortion law

A bench consisting of Justices DY Chandrachud, AS Bopanna, and JB Pardiwala held while the 1971 Medical Termination of Pregnancy Act was concerned with married women, the statement of objects and reasons to the 2021 amendment does not differentiate between married and unmarried and therefore, “all women entitled to safe and legal abortion”. Rights available to married women under the MTP Act, to abort a foetus will also be available to unmarried ones. Significantly, the bench in this path-breaking order also held that any pregnancy alleged by a pregnant woman to be caused by force is rape.

In effect, the order also recognises the phenomenon of rape within marriage, a concept still under adjudication. The artificial distinction between married and unmarried women cannot be sustained and that women must have the autonomy to have free exercise of these rights, reads the Order.

However the most significant aspect of this order is the jurisprudential breakthrough it makes on the reproductive rights of women: stressing reproductive autonomy is closely linked to bodily autonomy, the India’s Supreme Court has ruled that the right to choose contraception, the number of children and whether or not to abort have to be taken without the influence of social factors. Therefore, the consequences of unwanted pregnancy on a woman cannot be undermined and the health of the foetus depends on the mental wellbeing of the mother. The court held the interpretation of the MTP Act has to reflect the societal realities and hence pregnancy –and decisions thereof—are the sole prerogative of a woman. Circumstances may vary for many women since economic, cultural or social factors play a part in this.

Deliberating on this, the bench also drew strength from statistics available in the parliamentary debate around unsafe abortions and to a Global Health Study by the British Medical Journal which had concluded that 67 per cent of abortions were unsafe. Hence it concluded that denying access to safe abortion will increase people resorting to unsafe abortions.

Specifically looking at the abortion rights for rape survivors, the court said married women may also form part of a class of survivors of sexual assault and rape as it is quite possible that a woman may become pregnant on account of a non-consensual act by the husband. Therefore, in this context, the court said the meaning of rape must include the meaning of marital rape solely within the meaning of the MTP Act and Rules. The court also held the MTP Act and Protection of Children from Sexual Offences (Pocso) Act has to be read harmoniously and there is no need to disclose the identity of minors under the MTP Act.

Facts of the case

The case arose from a July 2022 order in which the Supreme Court had permitted an unmarried woman, who became pregnant due to consensual sex, to abort her 24-week-old foetus.The appellant, hailing from Manipur and currently residing in Delhi, had moved the Delhi High Court after she came to know about her pregnancy.

AT the time, the High Court had refused relief to the woman, holding that an unmarried woman who is carrying a child out of a consensual sexual relationship cannot be permitted to terminate pregnancy older than 20 weeks. The woman had then moved the Supreme Court in appeal.

On July 21, 2022, the Supreme Court, set aside the decision of the Delhi High Court. which had declined to permit the abortion. While allowing the appeal, the Supreme Court observed that the High Court took an unduly restrictive view in interpreting the MTP Act and Rules. After allowing the abortion the Court proceeded to hold further hearing on the scope of MTP Act and Rules before delivering its verdict on the same today.

Rape means sexual assault without consent

Rape means sexual intercourse without consent and intimate partner violence is a reality. In this case also woman may get forcefully pregnant. The Court held that wives, who conceived out of forced sex by their husbands, will also come within the ambit of “survivors of sexual assault or rape or incest” mentioned in Rule 3B(a) of the Medical Termination of Pregnancy Rules. For context, Rule 3B(a) mentions the categories of women who can seek termination of pregnancy in the term of 20-24 weeks.

The court was pronouncing a judgement stating that unmarried women are also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship(X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, C.A 5802/2022).

This excerpt from the judgement (X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, C.A 5802/2022) was read out by Justice Chandrachud:

“Married women may also form the 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 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.”

The court further referred to violence in matrimonial setting being the harsh reality and stated–

“We would be remiss in not recognising that intimate partner violence is the 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 form in the context of family has long formed a part of the lived experiences of women.“

It was further highlighted by the bench that existing Indian laws already recognised various forms of familial violence.

While further elaborating upon the exception of marital rape in IPC and its effect on the MTP Act, the bench stated–

“We have also briefly touched upon the Exception 2 of Section 375 of IPC. Notwithstanding Exception 2 to Section 375 of IPC, the meaning of the word “sexual assault” or “rape” in Rule 3B(a) includes the husband’s act of sexual assault or rape committed on his wife.“

However, the bench clarified that including marital rape within the meaning of rape was solely to be done for the purpose of the MTP Act. The court stated–

“The meaning of rape must therefore be understood as including marital rape solely for the purpose of the MTP Act and any other 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.“

The court also held that a woman need not prove the commission of rape or sexual assault to seek termination of pregnancy under the MTP Act. The bench opined–

“In order to avail the benefits of Rule 3(b)(a) the women may not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault or rape. Neither explanation 2 to Section 3(2), nor Rule 3(b)(a) requires the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant women can access an abortion. Further there is no requirement that the instance may be registered or the allegation of rape may be proved before a court of law or some other forum before it can be construed true for the purpose of the MTP Act. Such a requirement would be in conflict with the 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 forced by rape.“

The Supreme Court is at present considering petitions challenging the constitutionality of Exception to Section 375 of the Indian Penal Code, which exempts marital rape from the offence of rape.

The judgement can be read here.