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Can A Woman Be Forced To Abort Her Child? The Reproductive Rights Of A Woman Have Been Recognised As Being Part Of The Right To Life And Personal Liberty In Multiple Judicial Pronouncements, Says Delhi Dwarka Court

The Delhi Court denied bail to a man accused of raping a woman and subsequently forcing her to abort. The Hon’ble court reiterated various pronouncements preserving the reproductive rights of a woman

By: Hemani Khadai

The Delhi Court, in the case of State v. Shubham Singh, recently held that a woman exercising sexual independence/autonomy cannot be assumed to have consented to a contravention of her reproductive rights. 

The woman (Complainant) and man (Accused) met on a social networking site, after which the Accused took the complainant to his friend’s house, and made forcible physical relations with her on several occasions. It was reported that the woman and man were in a live-in relationship, pursuant to which the man used to beat her up, whenever she asked him to marry her. 

The Hon’ble court was informed that the woman was forced to undergo three abortions by the accused man, whereas she decided to keep the fourth baby.  Besides, she was more than 8 months into the pregnancy.  

Additional Sessions Judge Vishal Gogne mentioned in his order that, “While parties in a consensual relationship may be on an even keel when sexual relations are of a consistent and long duration, the act of contravening reproductive autonomy through multiple pregnancies and abortions takes away the element of consent which may have been given for the sexual act itself.”  

The Hon’ble Court also added, “A woman exercising bodily/sexual autonomy through a wilful sexual relationship cannot be additionally presumed to have given consent for violation of reproductive rights. If accused proceeds to continue sexual relations with the end or associated allegation of causing abortion, the consent for the sexual act itself is vitiated”

The Hon’ble Court viewed the act as sexual exploitation and in violation of the complainant’s reproductive rights. It was held that “This is a flawed construction of the concept of bodily/sexual autonomy of a person/female. The exercise of sexual choices by a woman does not vest any corresponding right in the partner to sexually exploit her. The woman does not forsake her other rights, including reproductive rights either when she enters into a sexual relationship with a partner.

It would indeed be a decision of immense difficulty for a young woman to go ahead with pregnancy as a single mother, especially when the child has been fathered by a person she accused of rape,” it noted.

Based on the available records, the court assumed in a prima facie view that, “the exploitative conduct of the applicant in abusing the sexual relationship between the parties had led to previous pregnancies and caused the complainant to continue with the present pregnancy in the interest of her health and future conception.”

According to the court’s interpretation, the allegations on the man indicated that he entered into a “forcible sexual relationship” with the woman and continued with the same, but also his reckless conduct “robbed” the complainant of the counterpart to her sexual autonomy i.e. reproductive choices/rights.

The court also referred to Devika Biswas vs. Union of India [Writ Petition (Civil) No.95 of 2012 dated 14 September 2016] and in particular observed that “the reproductive rights of a female have been recognized as being part of the right to life and personal liberty in multiple judicial pronouncements.”

The order further mentioned that a woman exercising bodily/sexual autonomy through a wilful sexual relationship cannot be additionally presumed to have also given consent for violation of reproductive rights.

The court said, “If the accused proceeds to continue sexual relations with the end or associated allegation of causing abortion, the consent for the sexual act itself is vitiated.” 

Any misconception on the part of the woman regarding marriage with the accused will be discovered during further trial, the Court added.

“It is no doubt in the prima facie view that she certainly did not submit her consent for the sexual relationship for suffering multiple abortions and a permanent detriment to her future reproductive rights. The nature of the relationship between the parties exhibits lack of consent for the immediate outcomes of the sexual relationship,” added the order.

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