Reproductive rights of women
The society has not given women the right to decide her own life. Since childhood she depends on her father, then husband and later on her son. A women life is not a circle but a triangle of these three who determines her life, who take decisions for her, who think its the best for her. But their ability to control decisions in the reproductive right of women means they control their own destiny. Most of men even don’t have knowledge about such rights of women. This reproductive rights of women includes the right to decide whether to reproduce or having reproductive health, to use contraceptive, to learn about sex education in public school, gaining access to reproductive health, right to plan family, right to terminate pregnancy (according to MTP Act).
It also included death and disability related to pregnancy, abortion, sexually transmitted disease like HIV or cancer in reproductive organs. One in five Indian women suffers from PCOD, 70 percent of breast cancer women are coming from south east especially from India and also our country has 20 percent of maternal death between 1992 and 2006, Indian women represents almost 40 percent of HIV cases. All these fact are showing that we are far behind in women’s health.
What is Reproductive rights:
India has given women’s right to vote at the very independence itself, while western countries struggled to give the political rights to their women. Along with that, India guaranteed right and access of abortion and contraception, but still women are struggling when excersing their reproductive rights.
The very big problem is young mensuration. This precocious puberty often causes tumor. Some studies shows that it even causes breast cancer at their later age. But only 20 percent of girls alone given access to sanitary napkins while others using muds, sand, ash which causes seriously medical complications. Sanitary pads are becoming luxury rather than necessity. Instead of making it available to all women, India government categorized in luxury goods of GST which impose 12 percent tax. It was critised by whole country by trending with tag line of tax on blood.
Since childhood , a girl was brought up with lack of menstrual hygiene. Then she was married at young age. This is a serious fundamental rights violation though it is not explicitly mentioned in part III of constitution. But the Delhi High court1 interpreted that the child marriage involves young girls and their expose to sexual abuse and domestic violence which is nothing but the violation of right to lead a life of freedom and dignity. The court added the term unrelenting cycle of gender equality, sickness and poverty.
In, M. Mohamed Abbas v. The Chief Secretary2, confirmed that the Prohibition of Child Marriage Act (PMCA), establishing 18 as the minimum legal age of marriage for girls, supersedes personal laws without violating Article 25 (freedom of religion) of the Constitution; rather, the ruling emphasizes that under CEDAW, fundamental rights, and directive principles of state policy, girls should be empowered and that child marriage is not in girls’ interest. The Court further stated that PCMA “is in favour of all the girl children getting proper education and empowerment and equal status as that of men in the Society, as guaranteed under Articles 14, 15, 16 and 21 of the Constitution3.
After marriage, women are excepted to fulfill their husband desire and the society’s to bear child. The right to plan the family is not up to wife its husband privilege here. Marital rape is intercourse between husband and wife without her consent. The worst truth is India still not criminalise this rape, but giving it as exception in rape in section 375 of Indian penal code. This exception 2 extremely violates Article 14 of constitution.
In Budhan Choudhary vs. State of Bihar4 and State of West Bengal vs. Anwar Ali Sarkar5, the supreme court held that to satisfy Article 14, it have to pass the reasonableness test that classify the nexus between rationality and the objective of the act. In this case, there is no rationable nexus in raping his own wife. It also violates Article 21 of constitution which included the right to health, privacy, dignity, safe living conditions, and safe environment, among others. In The State of Karnataka v. Krishnappa6, the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.the Supreme Court has explicitly recognized in Article 21 a right to make choices regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India7, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations’’. Forced sexual cohabitation is a violation of that fundamental right8.
In Devika Biswas vs. Union of India9, the supreme court held that reproductive health framework to also recognize women’s autonomy and gender equality as core elements of women’s constitutionally-protected reproductive rights. The Supreme Court recognized reproductive rights as both part of the right to health as well as an aspect of personal liberty under Article 21, and defined such rights to include the right to “access a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free, and responsible decisions about their reproductive behaviour”. The Supreme Court found that “the freedom to exercise these reproductive rights would include the right to make a choice regarding sterilization on the basis of informed consent and free from any form of coercion”.
Is Restitution of Conjugal rights restricting reproductive rights of women:
This restitution of conjugal rights was originated from England especially during Victorian era where doctrine of coverture exist .This kind of patriarchal doctrine did not accept husband and wife as equals, not allowing women to have separate property. But this norms was abolished in England in 197010. this conjugal rights was first applied in India by privy council for the first time in 1866 in Moonshee Bazloor vs. Shamsoonaissa begum. Later this was adopted in section 9 of the Hindu marriage act, 1955. since then , from case to case this section bought lot of controversy.
The Andra pradesh court held in T. Sareetha vs. Venkata Subbaiah11 that section 9 violates Article 21 and Article 14. the main contention was the right of free choice as to whether, where and how her body is to be used for the procreation of children and also the choice of when and by whom the various parts of her body to be sensed. It was overruled by Delhi High court in Harvinder kaur vs. Harmander singh12. The explanation was added to sub section (1) by the amendment of 1976 which makes it clear that the party who withdrawn from conjugal society must show there was a reasonable excuse for such withdrawn. We have to realise that marriage is a privilege not a right. The right to marriage is not explicilty mentioned anywhere in law. Then why the society makes it mandatory for women and except her to have child.
“Among the rude people, the women are generally degraded; among civilized people, they are exalted”
– James Mill
Reproductive rights are natural rights that means inalienable rights of women. No one is given these rights to them, to take away those. Indian courts adopted robust definition of reproductive rights that reflect human rights standards. Since medieval age, many writings wanted to give these rights to women. For instance, Jean Jaques Rousseau in his Discourse on the origin of inequality had distinguished between natural inequality and conventional inequality, Mary Wollstonecraft13 in her essay Vindication of the rights of women talks about why women had no right to divorce even if her husband abuses her. Women still struggled for her recognisation in the society. The society always have a flow chart of five DOs and thousand DONTs for women.
The most vulnerable section within women are the housewife who work all day every day. Indian courts in last decade made many significant verdicts in the development of women. Only through legal status we can make the society to hear women. Such litigation should be encouraged by budding lawyers as pro bono cases. Reproductive rights must be incorporated in fundamental rights in the form of equality under Article 14. women as a class neither belong to a minority group nor are they regarded as forming a backward class. Indian society has been a male dominated society, it still runs in the veins of our fellow men. So it is necessary to take ameliorative14 steps so that women may make progress in their particular fields and as well as in her personal life.
Her opinion Matters.
- Association for Social Justice & Research v. Union of India & Others, W.P. (CRL) No. 535/2010, Delhi H.C. (2010)
- Mohammed Abbas v. Chief Secretary, W.P. (MD) No.3133 of 2015, Madras H.C
- Reproductive rights in Indian courts, center for reproductive rights
- Budhan v. State of Bihar, AIR (1955) SC 191
- State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75
- The State of Karnataka v. Krishnappa, (2000) 4 SCC 75
- Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161
- Marital rape: a non criminalised crime in India, Sarthak Makkar
- Devika Biswas v. Union of India & Others, W.P. (C) 81/2012
- Family law in India, G.C.V subba rao, 10thedition
- AIR 1983 AP 356
- AIR 1984 Del. 66
- An Introduction to political theory, O P Gaubha, 7thedition
- Indian Constitutional Law, M P Jain , 8thedition
Author: K Sangeetha,
Government law college, chengalpattu