All women, married or unmarried, entitled to safe and legal abortion: SC

New Delhi: The Supreme Court on Thursday ruled that all women, including married, unmarried or those raped by husbands, are entitled to a safe and legal abortion within 24 weeks of their pregnancy as the Medical Termination of Pregnancy (MTP) Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy.

In a landmark ruling touching upon marital rape, a bench comprising Justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala said that rape is forced and "a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband."

Noting that the married women may also form part of the class of survivors of sexual assault or rape, Justice Chandrachud pronouncing the judgment 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 or consulting doctors," the court said, recognising a woman's right to autonomy over her body.

Saying that it would be a "remiss in not recognising" that intimate partner violence is a reality and can take the form of rape, the court said, "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 Court said that it is only by a "legal fiction" that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375.

However, the judgment said that notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the words "sexual assault" or "rape" in Rule 3B(a) of the MTP Rules 2003 as amended on October 12, 2021 includes a husband’s act of sexual assault or rape committed on his wife.

"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 court said.

However, the court did not dwell on Exception 2 to Section 375 of the IPC that removes marital rape from the ambit of rape, as petitions seeking the recognition of marital rape is pending adjudication before another bench of the top court following a split verdict by a bench of the Delhi high court.

The court said that while making safe and legal abortion under the MTP Act available to all pregnant women irrespective of whether they are married, unmarried or those who suffered forced sexual intercourse by their husband, it is a settled proposition that progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision.

The top court added that while much of the MTP Act’s "benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another)."

Changing social mores, the court said, must be borne in mind when interpreting the provisions of an enactment to further its object and purpose.

To buttress its point, the court said the statutes are considered to be "always speaking."

Recognising the right of every woman to an abortion within 24 weeks of pregnancy, the top court said that implicit in this right is the right of the pregnant woman to access healthcare facilities to attain the highest standard of sexual and reproductive health. The court said that 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, enabling them to undergo a safe pregnancy, if they so choose.