In X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, 2022 INSC…

In X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, 2022 INSC 1035, the Hon’ble Supreme Court held, inter alia, as follows:

“26. A Registered Medical Practitioner’s decision to provide medical termination of a pregnancy is also influenced by social stigma surrounding unmarried women and pre-marital sex, gender stereotypes about women taking on the mantle of motherhood, and the role of women in society.

28. The social stigma that women face for engaging in pre-marital sexual relations prevents them from realising their right to reproductive health in a variety of ways. They have insufficient or no access to knowledge about their own bodies due to a lack of sexual health education, their access to contraceptives is limited, and they are frequently unable to approach healthcare providers and consult them with respect to their reproductive health. Consequently, unmarried and single women face additional obstacles…

71. Married women may also form part of the class of survivors of sexual assault or rape. 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 performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape. 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.

73. 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.

96. The ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health… Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.

108. A woman can become pregnant by choice irrespective of her marital status. In case the pregnancy is wanted, it is equally shared by both the partners. However, in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decisionmaker on the question of whether she wants to undergo an abortion.”

In the same decision, addressing the marital exception to the penal offence of rape (now contained in Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023, where the wife is not under eighteen years of age) alongside Rule 3B(a) of the Medical Termination of Pregnancy Rules, 2003 framed under the Medical Termination of Pregnancy Act, 1971, the Court clarified the legal position on marital rape. Which of the following statements accurately states that legal position?