In a landmark judgement, Supreme Court on Thursday held that all women-both married and unmarried-are entitled to safe and legal abortion.
A bench headed by Justice D.Y. Chandrachud said that the meaning of the rape must include marital rape for the Medical Termination of Pregnancy (MPT) Act. The Supreme Court said that the distinction between married and unmarried women for the purposes of the MTP Act is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women indulge in sexual activities.
The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman, the bench said.
Insisting on a “forward-looking” approach, the Supreme Court on 7 August opined that any discrimination between married and unmarried women in respect of the MPT law in India that does not allow a single woman to go for abortion after 20 weeks, violates her personal autonomy.
The top court had said that it will interpret the MTP Act and the related rules to see if unmarried women could be allowed to abort upto 24-week pregnancy on medical advice.
The upper limit for the termination of pregnancy is 24 weeks for married women, special categories–including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.
The apex court in its August judgment had questioned if a married woman is allowed to terminate upto 24 weeks of pregnancy under the MTP Act, 1971, and the Rules framed under it, why denying the same to unmarried women, even though the risk is same for both.
The bench had said that it can strike down the restrictive clause “for being manifestly arbitrary”, which in turn would allow extending the benefit of terminating pregnancy above 20 weeks to unmarried women also.
The apex court in its August judgment had questioned if a married woman is allowed to terminate upto 24 weeks of pregnancy under the MTP Act, 1971, and the Rules framed under it, why denying the same to unmarried women, even though the risk is same for both.
The bench had said that it can strike down the restrictive clause “for being manifestly arbitrary”, which in turn would allow extending the benefit of terminating pregnancy above 20 weeks to unmarried women also.
It also held that a woman need not prove the commission of rape or sexual assault to seek termination of pregnancy under the MTP Act.
The top court also held that the marital status of a woman can’t be used to deprive her of her right to abort an unwanted pregnancy.
Interpreting the Medical Termination of Pregnancy (MTP) Act, the Supreme Court said that whether single or unmarried, all women have the right to abort under the MTP Act and Rules until 24 weeks of pregnancy.
The upper limit for the termination of pregnancy is 24 weeks for married women, special categories include survivors of rape and other vulnerable women such as the differently abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.
The rights to reproductive autonomy give unmarried women similar rights as married women, the court held.
Holding that all women are entitled to safe and legal abortion, the top court said the distinction between married and unmarried women for the purposes of the MTP Act is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women indulge in sexual activities.
“Law cannot create such artificial classifications based on narrow grounds… the decision to carry a pregnancy to full term or to abort it lies in the reproductive autonomy of a woman, which is rooted in bodily autonomy. Depriving her of this right will be an affront to a woman’s right to dignity,” the bench held in its ruling.
The verdict of the apex court came on a petition filed by a 25-year-old single woman, whose plea for termination of her 24-week pregnancy was denied by the Delhi high court, but the Supreme Court allowed her to abort the foetus if there was no risk to her life.
Earlier, the apex court had questioned why, if a married woman is allowed to terminate up to 24 weeks of pregnancy under the MTP Act and Rules framed under it, it should be denied to unmarried women, even though the risk is the same for both.
A woman had approached the apex court after the Delhi High Court declined to grant permission to abort her pregnancy, which had arisen out of a consensual sexual relationship, saying that it virtually amounted to killing the foetus.
On 15 July, the High Court ruled that allowing abortion at this stage would be tantamount to killing the foetus and advised the woman to place her child for adoption instead.