Analysing The New MTP Rules With Reference To Marital Rape Laws In India

Anvita Koduri, OP Jindal Global University

ABSTRACT

The right to bodily autonomy and integrity is an essential right that must be guaranteed to every woman irrespective of their marital status, age, social status or any other exogenous factors. This paper further delves into the recent judgement of the Supreme Court of India, X v The Principal Secretary, Health and Family Welfare Department, Govt of NCT1, where it gave an extensive and progressive interpretation to Rule 3B of the Medical Termination of Pregnancy Rules, 2003, the constitutional validity of which was being questioned by the Appellant. Further, a critical analysis of the Medical Termination of Pregnancy (MTP) Act2, and the latest MTP Amendment Act (2021) in the context of the above mentioned judgement4 has been made as well.

Within the ambit of Rule 3B of the Medical Termination of Pregnancy Act, unmarried women and victims of marital rape are eligible for abortion within 20-24 weeks of their pregnancy. Unfortunately for unmarried single women, pre-marital sexual relations are often met with stigmas and heavy criticism in a social context and hence, medical termination/abortions are frequently looked down upon which discourage these women to stand up for their rights of bodily autonomy. In this case,5 the Supreme Court ruling stated that it gave the liberty of abortion to unmarried woman whose consensual relationship led to a pregnancy of 24 weeks, as it would cause serious injury to the mental health of the appellant. Undoubtedly, this judgement by the Court is historic and tries to reinforce the bodily and reproductive autonomy of pregnant women. However, a significant drawback still lies in the retrograde nature of necessarily having a registered medical practitioner assenting to conduct the procedure even if the consent of the concerned parties is present. However, an evident concern, which hasn’t been cleared in the judgement is that even after enacting these rules is envisaged in the letter of the law under Section 3(2B)6 where medical termination is permitted only when there is substantial risk or injury to the life of the pregnant woman or if the foetus were to suffer any physical or mental abnormality. While the MTP (Amendment) Act 2021 is a step in the right direction, there is yet a lot that is left to uncover and answer. The regard for women's bodily autonomy is admirable, if not necessary. Nevertheless, the bigger concern that this ruling raises is if it will eventually lead to criminalising marital rape under India's criminal legislation. The central argument of this research paper lies within the question, if a woman's bodily autonomy is guaranteed or not under the patriarchal laws of marital rape laws of India? The explanation is complex, but Justice DY Chandrachud has fallen short in establishing a precedent for the ultimate prosecution of the moral horror that is marital rape.