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Marital rape victims are included in abortion law’s exception for rape survivors, says SC

Women alleging rape by husbands can get abortions beyond 20 weeks, SC clarifies. It also adds 'unmarried or single' women to list of those eligible for abortion between 20 & 24 weeks

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New Delhi: Forceful sexual intercourse by a husband can be classified as rape under the Medical Termination of Pregnancy (MTP) Act, the Supreme Court said Thursday, granting the right to abortion to victims of marital rape, at par with other rape survivors.

Currently, the MTP Act mandates the medical opinion of a doctor to terminate pregnancy up to 20 weeks while advice of two doctors are needed for pregnancies between 20 and 24 weeks. However, only certain categories of women are allowed to terminate their pregnancies in this extended time period of 20 to 24 weeks.

The exceptions include the cases of sexual assault, rape or incest. After Thursday’s ruling, women who conceive out of forced sex by their husbands can also undergo abortion beyond 20 weeks.

Extending the 24-week limit for abortion to unmarried women as well, a bench comprising Justices D. Y. Chandrachud, A. S. Bopanna and J. B. Pardiwala observed that “married women may also form part of the class of survivors of sexual assault or rape”.

“Rape” under the MTP Act and Rules would include “a husband’s act of sexual assault or rape committed on his wife”, it said.

“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,” the top court observed.

“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 by her husband, the court said.

“We would be remiss in not recognising that intimate partner violence is a reality and can take the form of rape…The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations,” the bench observed.

Section 375 of the Indian Penal Code defines the offence of rape, but carves out an exception for sexual intercourse between a married couple.

To get the benefit of the exception, the Supreme Court asserted, a woman need not prove sexual assault, rape or incest in a court. 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, it added.

The observation assumes significance considering that the Supreme Court is hearing pleas on marital rape, after the Delhi High Court delivered a split verdict in May on petitions challenging the constitutional validity of the exception that exempts a husband from prosecution for forcible sexual intercourse with his wife.

Also Read: ‘Marital rape exception not absolute’ — Karnataka HC refuses to quash rape case against husband  

POCSO Act and MTP Act

The  MTP Act and Rules also includes minors within the category of women who may terminate their pregnancy up to 24 weeks. Section 19(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 makes it compulsory for anyone, including authorities such as hospitals and doctors, to inform the police if they come across any alleged sexual assault on a minor, or those below 18 years, irrespective of consent.

On Thursday, the Supreme Court noted that when a minor gets pregnant, she and her guardian may be wary of the mandatory reporting requirement as they may not want to entangle themselves with the legal process. In such circumstances, it said, they may either approach a registered medical practitioner under the MTP Act and possibly get involved in criminal proceedings under the POCSO Act, or approach an unqualified doctor for an abortion.

“If there is an insistence on the disclosure of the name of the minor in the report under Section 19(1) of POCSO, minors may be less likely to seek out RMPs [Registered Medical Practitioners] for safe termination of their pregnancies under the MTP Act,” it observed.

Favouring a harmonious reading of the provisions of the POCSO Act and MTP Act, the apex court clarified that on the request of a minor and her guardian, the registered medical practitioner need not disclose the identity and other personal details in the information provided to authorities under Section 19 of the POCSO Act.

The Registered Medical Practitioners are now exempted from disclosing the minor’s identity in any criminal proceedings which may follow from their report.

“Such an interpretation would prevent any conflict between the statutory obligation of the RMP to mandatorily report the offence under the POCSO Act and the rights of privacy and reproductive autonomy of the minor under Article 21 [right to life and personal liberty] of the Constitution,” the top court observed.

The clarification also holds significance in the light of the fact that the Delhi High Court is currently hearing a petition challenging the Constitutional validity of Section 19 of the POCSO Act. The petitioner has raised questions over applicability of the POCSO Act on teenagers, particularly those in the 16-18 years age group,  in a consensual relationship.

Exception extended to unmarried women

Rule 3B of the Medical Termination of Pregnancy Rules, 2003 lists down the categories of women eligible for termination of pregnancy up to 24 weeks. The list includes survivors of sexual assault or rape or incest, minors, mentally ill women, and women who undergo a change in marital status — including widowhood and divorce — during an ongoing pregnancy.

While hearing the plea of a woman who was denied abortion by the Delhi High Court since she was unmarried, the Supreme Court interpreted the Rule to include “unmarried or single women” and asserted that the provision “must be understood as extending to all women who undergo a change of material circumstances”.

In doing so, the top court noted that the common thread running through each category mentioned in Rule 3B is that the woman is in a unique and often difficult circumstance, with respect to her physical, mental, social, or financial state.

“Prohibiting unmarried or single pregnant women [whose pregnancies are between 20 and 24 weeks] from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14 [right to equality],” it observed. “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 top court asserted that a woman can get pregnant by choice, irrespective of her marital status. However, in case of an unwanted or incidental pregnancy, “the burden invariably falls on the pregnant woman affecting her mental and physical health,” it said. In such a situation, it asserted, Article 21 recognises and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake.

Court allows petitioner to end pregnancy

The petitioner had submitted to the top court that she was in a consensual relationship and realised that she was pregnant in June. She, however, decided to get an abortion when she was 22 weeks pregnant, after “her partner refused to marry her at the last stage”.

The woman had approached the Delhi High Court, submitting that she does not have a source of livelihood and would not be able to raise a child on her own. She had also said that she did not want to carry the pregnancy to term since she was wary of the “social stigma and harassment” meted out to unmarried single parents, especially women.

But the high court rejected her petition on 15 July, after which she approached the apex court.

On 21 July, the Supreme Court had passed an interim order, observing that the “distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament”.

It had also pointed out that the petitioner had approached the high court before she completed 24 weeks of pregnancy and that “the delay in the judicial process cannot work to her prejudice”.

The top court had allowed the woman to terminate the pregnancy, subject to a medical board constituted by the AIIMS-Delhi’s go-ahead that abortion can be done without risking her life. It was now considering the question whether Rule 3B includes unmarried women, single women or women without a partner under its ambit.

(Edited by Tony Rai)

Also Read: FIR to get an abortion, reporting teens dating — why courts find POCSO’s section 19 problematic 


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