This article has been written by Jessica Fernandez from Lloyd Law College

INTRODUCTION

It is a fact that Indian society has always been male biased. Because of that, it is

essential to have laws for the protection of women in different realms of life. Women’s rights have been a topic of continuous discussion for a considerable amount of time. Reproductive rights for women are a major topic of discussion in this larger context.

Women’s reproductive rights include the capacity to make knowledgeable decisions about their reproductive health, including decisions about when, how, and how many children to have. Women’s access to abortion has been a long-standing and divisive topic of discussion within this field.

The Supreme Court of India in X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., 2022, ruled that unmarried women and survivors of marital rape are legally entitled or have the legal right to terminate their 20–24 week pregnancies under Rule 3B of the Medical Termination of Pregnancy (MTP) Rules. This decision is a very progressive one and has given single women the bodily autonomy that they rightly deserved from the very beginning.

FACTS

The woman was about twenty-five years old and single. She sought the intervention of the High Court of Delhi through its writ jurisdiction to request permission to terminate her pregnancy before reaching the 24-week mark. The appellant’s consenting relationship outside of marriage was the cause of her pregnancy. She stated that she wanted to end the pregnancy because lone parents without a husband face “stigma and harassment” from society.

One of the main reasons for this decision, according to her, was that “her partner had refused to marry her at the last stage.” In addition, the appellant claimed that carrying out the pregnancy constituted a “grave and significant threat to her mental well-being” because she was an unmarried graduate unprepared to raise a child on her own.

On July 15, 2022, the appellant requested permission to end her pregnancy and to stop any legal action or coercion being taken against her or the registered medical practitioner who performed the termination. However, the High Court of Delhi denied her motion. according to the High Court’s reasoning, The Medical Termination of Pregnancy Act 1971 (also known as the MTP Act) did not apply to the appellant’s circumstances because she did not meet any of the requirements outlined in Rule 3B of the MTP Rules, the High Court concluded that this rule could only be applied to married women and could not be extended to single women.

The woman then made an appeal to the Supreme Court after the court refused to approve the procedure. Stress was laid on the fact that Rule 3B(c) of the MTP Rules allows for pregnancy termination in cases of a “change in marital status during an ongoing pregnancy (widowhood and divorce).” Subsequently, on July 21, 2022, the High Court’s ruling was overturned by the Supreme Court and permission was granted to the appellant to terminate her pregnancy. However, this permission was granted on one condition, i.e., to see to it that a Medical Board constituted under the All India Institute of Medical Sciences (AIIMS) ascertains that the termination posed no risk to the appellant’s life.

ISSUES

• Does the provision in Section 3(2)(b) of the MTP Rules, 2003 raise any questions about its compatibility with Article 14 of the Indian constitution?
• Is it lawful for victims of marital rape to have abortions without their husbands’ consent?
• Does Article 21 of the Indian Constitution grant a right to unmarried women to terminate their pregnancy?
• Does Clause C of Rule 3B in the MTP Rules and Section 3(2)(b) of the MTP Act encompass unmarried women in matters pertaining to abortion?

ARGUMENTS

By Petitioners:

The petitioners contended that the woman must be permitted to terminate her pregnancy as she is an unmarried woman whose partner refused to marry her. She did not want to prolong the pregnancy and have the child outside of marriage because she lacked the financial ability to do so. She is unemployed and is the eldest amongst five siblings and her parents are farmers. In the absence of a source of livelihood, she would be unable to raise and nurture a child.

It was argued that if there is a change of marital status during the ongoing pregnancy (widowhood and divorce), then the woman could get her pregnancy terminated, however, she cannot do so if she is unmarried. This is in violation of the right to equality entailed in article 14 of the Constitution. The expression “change of

marital status’’ should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.

Parliament by amending the MTP Act through Act 8 of 2021 intended to include unmarried women and single women within the ambit of the Act. This is clear from the fact that under Explanation I of Section 3(2) of the Act, the word “husband” has been replaced with the word “partner.”

The woman in this case is also mentally unprepared to raise a child on her own. If she was forced to do so, it would be extremely harmful to her bodily and

emotional health. The appellant was not ready to face the social stigma surrounding unwed mothers. Section 3(2)(b) of the MTP Act and Rule 3B of the MTP Rules are arbitrary and discriminatory in that they exclude unmarried women from their provisions. They discriminate against women on the basis of marital status.

By Respondents

Ms. Aishwarya Bhati, learned senior counsel and Additional Solicitor General, has ably aided this Court in interpreting Section 3(2) of the MTP Act and Rule 3B(c) of the MTP Rules. She offered the following remarks in support of the proposition that Rule 3B(c) applies to unmarried or single women in long-term relationships:

1. Legislation must be interpreted in accordance with its text and context, as well as the goal it tries to achieve. A statute’s interpretation must be guided by its Statement of Objects and Reasons. The Statement of Objects and Reasons of a statute must also guide its interpretation;
2. Modern legislations ought to be read in view of the evolution of society from the time of enactment. The literal construction of beneficial legislations must be avoided, and they ought to be given a purposive interpretation;
3. A subordinate legislation should give effect to the statute it is enacted under. If two constructions are possible, the interpretation in consonance with the statutory scheme ought to be adopted;
4. “Live-in relationships” are equivalent to marital relationships because, in both types of relationships, the woman is entitled to maintenance. Further, the children born out of such a relationship are vested with the right of succession. Various

national legislations, including the MTP Act, do not make a distinction between married women and unmarried or single women.

1. The term “change of marital status” in Rule 3B(c) ought to be interpreted as “change in the status of a relationship” to include unmarried or single women as well as women who are not divorced but are separated or have been deserted.
2. Women enjoy the right to bodily integrity and autonomy, as well as reproductive rights. They are entitled to exercise decisional autonomy.

ANALYSIS

The Supreme Court in this case used a purposive interpretation rather than a restrictive one. The court’s verdict is deemed ground-breaking because of its progressive approach. This verdict seeks to emphasize the importance of women’s physical and reproductive autonomy, as well as the right to privacy and dignity guaranteed by Article 21 of the Constitution. According to Article 21, both married and unmarried women have an equal right to choose their own parenting arrangements.

The court held:”A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14.”

The judgement intends to significantly elevate the right to privacy and dignity as guaranteed by Article 21 of the Constitution, as well as the physical and reproductive autonomy of pregnant women. The freedom to choose whether or not to have children is guaranteed under Article 21 for both married and unmarried women equally. The court defined “mental health” broadly, including more than the absence of mental impairment or illness. It acknowledged that an undesired pregnancy could be considered harmful to mental health under Section 3(2)(b) of the MTP Act. The court stated, “The determination of one’s mental health status is based on one’s own experiences within one’s environment and social context.

Our concept of the word “mental health” should not be limited to medical terms or medical language only, a broader view must be taken. Furthermore, the bench rejected the distinction between the rape of an unmarried woman by a man and that of a married woman by her husband, as well as the notion that a husband cannot rape his wife. It was ruled that the term ‘rape’ under Rule 3B of the MTP Act also covers ‘marital rape’. “Notwithstanding Exception 2 to Section 375 of the IPC, 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. The meaning of rape must therefore be understood as including marital rape solely or the purposes of the MTP Act and any rules and regulations framed thereunder.”

The Hon’ble Court left the constitutional validity to be decided in other appropriate proceedings by this Hon’ble Court as the challenge to Exception 2 to Section 375 of the IPC 1860 is pending for consideration in the Supreme Court before another Bench of Judges. Furthermore, it was established that to qualify for the provisions outlined in Rule 3B(a) of the MTP Rules, a woman is not obligated to initiate formal legal proceedings to demonstrate the occurrence of ‘sexual assault, rape, or

incest.’ There is also no requirement to file an FIR or substantiate the rape allegations in a court of law for them to be recognised as valid under the purview of the MTP Act.

JUDGEMENT

The Supreme Court of India ruled in X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., 2022, that unmarried women and survivors of marital rape are legally entitled to terminate their 20–24 week pregnancies under Rule 3B of the Medical Termination of Pregnancy (MTP) Rules. In

accordance with Rule 3B(a) of the MTP Rules, the court has classified marital rape as

“rape” for the purposes of the Medical Termination of Pregnancy (MTP) Act. Because of this classification, women who have been raped in marriage are able to end pregnancies up to 24 weeks.

CONCLUSION

While delivering the judgment, the court reiterated that the marital status distinction for pregnancy abortion is ‘artificial and constitutionally unsustainable’. It perpetuates the perception that only married individuals participate in sexual activity. As society evolves, so must the laws and interpretations of legislation to fulfill the expectations of the majority. As we move forward, decriminalising abortion will reverse the “chilling effect” on RMPs (Registered Medical Practitioners), making it more likely that they will grant abortions rather than involve courts. And most importantly, the decision to terminate an unwanted pregnancy now vests only with the pregnant person in India, making it a rights-based legal framework. The MTP Act must, therefore, be read and implemented accordingly.

In India, a significant percentage (32%) of married women have experienced spousal violence, encompassing physical, sexual, or emotional abuse. However, marital rape is still not considered a crime in India and has never been made a crime. India is one of the thirty-two nations that do not yet have laws against marital rape. If a woman is not under the age of fifteen, then a husband’s sexual conduct with her are not deemed rape under Exception 2 to Section 375 of the Indian Penal Code 1860..This exception is seen as a violation of women’s rights to personal liberty, dignity, and equality. According to Article 21 of the Indian Constitution, everyone has the right to life, which includes the right to live a dignified life. There is now hope that this act may be made illegal thanks to the Supreme Court’s ruling in the ongoing case. However, the Court stated that women who have been raped in marriage are also e;igible to end their pregnancies up to 24 weeks as for the purposes of this act, rape extends to and includes within its ambit-marital rape.

Single or unmarried women fall into the group of those who alter their marital status while their pregnancy is still going on and are therefore qualified for a pregnancy termination. In conclusion, this judgment represents a significant achievement in recognising women’s rights related to their bodily and reproductive autonomy and can also pave the way for marital rape finally becoming an offence in India.

REFERENCES

• x-v-principal-secretary
• All Women Entitled To Safe & Legal Abortion, Distinction Between Married & Unmarried Women Unconstitutional : Supreme court

• Unmarried woman can undergo abortion up to 24 weeks: Supreme Court

• X V The Principal Secretary, Health & Family Welfare Department Govt Of Nct Of Delhi: Case Brief