Rape includes marital rape for the purposes of the Medical Termination of Pregnancy Act: SC

New Delhi, September 29 (IANS) The Supreme Court on Thursday said that all women, including the unmarried, have the right to a safe and legal abortion and also that the meaning of rape should be understood to include marital rape, solely for the purposes of the Medical Termination of Pregnancy (MTP) Act and all rules and the regulations framed thereunder.

And married women can also be part of the class of survivors of sexual assault or rape, it added.

A bench headed by Justice DY Chandrachud said it was not unthinkable for married women to become pregnant as a result of their husbands “raping” them and the nature of sexual abuse and the contours of consent do not undergo transformation when a person decides to marry everything.

“The institution of marriage does not influence the answer to the question of whether a woman has given consent to sexual relations. If a woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors,” it added.

The bench, also comprising Justices AS Bopanna and JB Pardiwala, said the state has a positive obligation under Article 21 of the Constitution to protect the right to health and particularly reproductive health of the people.

“Married women can also be part of the class of survivors of sexual violence or rape… A woman can become pregnant as a result of non-consensual intercourse performed on her by her husband. We would be remiss if we did not recognize that intimate partner violence is a reality and can take the form of rape,” said Justice Chandrachud, who authored the judgment on behalf of the bench.

He added that the misconception that strangers are exclusively or almost exclusively responsible for sexual and gender-based violence is deeply regrettable.

The court said there is no requirement that an FIR be registered or the allegation of rape has to be proved in court or any other forum before it can be considered true for the purposes of the MTP Act.

Emphasizing that the right to dignity encapsulates the right of each individual to be treated as a self-governing subject with inherent worth, he added that in the context of abortion, the right to dignity includes recognition of the competence and authority of each woman to make reproductive decisions, including the decision to termination of pregnancy.

“The right of every woman to make reproductive choices without undue interference by the state is central to the idea of ​​human dignity. Denial of access to reproductive health care or emotional and physical well-being also undermines women’s dignity,” it added.

Justice Chandrachud said that if women with unwanted pregnancies are forced to carry their pregnancies to term, the state will deprive them of the right to determine the immediate and long-term path their lives will take.

“Depriving women of autonomy not only over their bodies but over their lives would be an affront to their dignity. The right to choose for oneself – be it as significant as choosing the course of one’s life or as mundane as one’s daily activities – forms part of the right to dignity,” he added in the 75-page judgment.

The court said the law should not decide beneficiaries of a status based on narrow patriarchal principles about what constitutes “permissible sex,” which creates offensive classifications and excludes groups based on their personal circumstances.

“The rights to reproductive autonomy, dignity and privacy under Article 21 give an unmarried woman the right to choose whether or not to give birth to a child like a married woman,” it added.

The purpose of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between 20 and 24 weeks made unwanted due to change in women’s financial situation.

“In view of the objective, there is no justification for excluding unmarried or single women (who face a change in their financial situation) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited to married women only, would make the provision discriminatory against unmarried women and violative of Article 14 of the Constitution,” Justice Chandrachud said.

The bench said importantly that only the woman has the right over her body and is the ultimate person who takes the decision on whether she wants to undergo an abortion. “To avail the benefit of Rule 3B(a), a woman need not necessarily seek recourse to formal judicial proceedings to prove the fact of sexual assault, rape or incest,” the judge said.

On July 21, the Supreme Court allowed a 25-year-old woman to terminate her 24-week pregnancy resulting from a consensual relationship. In the judgment, the apex court dealt with various aspects of the matter, including forced pregnancy. The woman had moved to challenge the Delhi High Court, which refused to entertain her plea to terminate her 24-week-old fetus under Rule 3B, relating to categories of women eligible for abortion, of the MTP Rules, 2003.

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