Take a bow

In locating the right of a 25-year-old, unmarried woman to abortion within the larger context of a woman’s reproductive rights, dignity and privacy, the Supreme Court has delivered a groundbreaking judgment. The judgment provides a forward-looking interpretation of the relevant law and shines a mirror on countries where bodily and decisional autonomy of women is still subject to regressive statutory regimes. This is a heart-warming contrast to the developments in the US, particularly where the landmark Roe-versus-Wade judgment giving constitutional validity to the right to abortion has been recently overturned.

The judgment is seminal; it completely redraws the legal contours around the notions of women’s dignity — attached to marital status, violence within marriages, notions of a stereotypical family and marital rape. The three-judge Bench comprising Justice DY Chandrachud, Surya Kant and AS Bopanna termed as “legal fiction” Exception 2 of Section 375 of the Indian Penal Code (IPC) that removes marital rape from the ambit of rape. While the constitutional validity of Exception 2 to Section 375 IPC is to be decided by a different Bench of the Supreme Court which is hearing a challenge to this specific law, the judges in the present case unambiguously included a husband’s act of sexual assault or rape on his wife within the definition of “sexual assault” and “rape” in Rule 3B(a) of Medical Termination of Pregnancy Rules, 2003. “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… If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors. It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape,” said the judgment authored by Justice Chandrachud.

The judges removed the “restrictive and narrow” interpretation of the Medical Termination of Pregnancy Act in the Rules that effectively prohibited single/unmarried women from accessing abortion while allowing married women to access them. The judges found the provision violative of the right to equality under Article 14 of the Constitution. “The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes ‘permissible sex’…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,” said the judges. Familial relationships, the SC held, may take the form of domestic, unmarried partnerships or queer relationships which are equally deserving of not just benefits available under welfare legislation but also protection of the law. By outlawing all forms of gender discrimination, the SC has modelled the law to the reality of our times.

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