In X v. State (NCT of Delhi), 2022 INSC 1035, the Hon’ble Supreme Court held, inter alia, as follows:…

In X v. State (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.

27. Due to a widespread misconception that termination of pregnancies of unmarried women is illegal, a woman and her partner may resort to availing of

abortions by unlicensed medical practitioners in facilities not adequately equipped for such medical procedures, leading to a heightened risk of

complications and maternal mortality. In Surendra Chauhan v. State of Madhya Pradesh, a two- Judge Bench of this Court upheld the Madhya Pradesh High

Court’s order to convict the accused under Section 314 read with Section 34 of the IPC for causing a woman’s death by miscarriage. According to the facts

of the case, the accused was in an “illicit relation” with the deceased, an unmarried woman of twenty-four years. The deceased woman had become pregnant

as a result of this relationship. Both of them had approached the clinic of a so-called doctor (who was named as a co-accused) to terminate the pregnancy of

around 3 months (approximately 12 weeks). The purported doctor was neither an RMP nor was his clinic approved by the government, in terms of the

requirements laid down in the MTP Act. During the procedure for the termination of pregnancy, the woman passed away. This case is illustrative of the

dangers of unsafe abortions, undertaken due to the social stigma surrounding pregnancies among unmarried women.

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.

72. Existing Indian laws recognize various forms of familial violence – the Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994 criminalises the

communication of the sex of the foetus to the pregnant woman or her relatives. Section 498A of the IPC criminalises physical, mental, and emotional abuse.

The Dowry Prohibition Act 1961 criminalises the giving and taking of dowry (a form of economic and social violence). Physical abuse or sexual abuse by

family members and female infanticide are also criminalized under the IPC. Marital assault merely forms a part of a long list of deeds that amount to

violence in the context of the family.

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.

74. 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.

Understanding “rape” under the MTP Act and the rules framed thereunder as including marital rape does not have the effect of striking down Exception 2 to

Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC. Since the challenge to Exception 2 to Section 375 of the IPC is

pending consideration before a different Bench of this Court, we would leave the constitutional validity to be decided in that or any other appropriate

proceeding.

75.Notwithstanding Exception 2 to Section 375 of the IPC,85 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 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.

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. Reproductive rights include the right to

access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to

choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to

reproductive healthcare. 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.

The ambit of reproductive rights includes, among other things: i. The right of women to decide whether to have or not have children but not the right to

choose when to have children.

ii. The right to access education and information about contraception and sexual health.

iii. The right to decide whether and what type of contraceptives to use.

iv. The right to access abortions, even if the same is unsafe.