7 takeaways from SC ruling on abortion, marital rape, non-marital sex
According to the Supreme Court judgment, the exclusion of unmarried women who conceive out of live-in relationships, from the MTP is unconstitutional.
The Supreme Court, in a landmark judgment on Thursday (September 29), said that all women, married or unmarried, are entitled to a safe and legal abortion under the Medical Termination of Pregnancy (MTP) Act.
The order, which was passed by a bench led by Justice DY Chandrachud, declared that unmarried women are also entitled to seek abortion in the term of 20-24 weeks arising out of a consensual relationship.
According to the Supreme Court judgment, the exclusion of unmarried women who conceive out of live-in relationships, from the MTP is unconstitutional.
Key takeaways from the SC judgement:
1) Marital status is no longer a hurdle
The SC said that all women in India have the right to seek an abortion. Their marital status can no longer be the ground for determining their right to seek an abortion.
The court said that a distinction between married and unmarried women is unsustainable. “If Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities.This is not constitutionally sustainable.The artificial distinction between married and unmarried women cannot be sustained,” said Justice Chandrachud.
Watch: All women entitled to safe and legal abortion, says SC
The court said that all unmarried women would henceforth be allowed to terminate an unwanted pregnancy within 24 weeks of conception. Depriving single or unmarried women of the right to abort an unwanted pregnancy is a violation of their fundamental rights, it pointed out.
2) Inclusion of marital rape under MTP Act
The Supreme Court said that the definition of rape should include marital rape under the Medical Termination of Pregnancy (MTP) Act.
The court observed that sexual assault by a husband can take the form of rape. Married women may thus also form part of a class of survivors of sexual assault or rape. The SC said it is possible for a woman to become pregnant through non-consensual sex with her husband.
3) Protection of a minor’s identity
The SC said that in case of a minor seeking abortion under the POCSO Act, the registered medical practitioners need not disclose the minor’s identity. While it is important to balance the laws of POCSO and MTP, it is not the legislature’s intention to deprive minors of MTP, said the apex court.
4) Right of bodily autonomy
The apex court observed that the decision to terminate a pregnancy should rely on the woman concerned as it is firmly rooted in her right of bodily autonomy. A woman should be able to make her own choice as it is her body which sustains the foetus.
Also read: SC: Unmarried women also entitled to legal abortion; rape includes marital rape
If the state forces a woman to carry an unwanted pregnancy to the full term, it will amount to an affront to her dignity, said the SC.
5) Determination of mental health
The Supreme Court in its judgment said the determination of one’s mental health is dependent on their experiences and environment. Medical understanding can thus not be the only basis for explaining one’s mental health.
The apex court observed that mental health has a broad connotation which is broader than mental capacity or illness.
6) Law has to keep up with changing social mores
The SC said that law must be interpreted keeping in mind changing social mores. When the MTP Act was enacted in 1971, it assumed pregnant women were all married. This is no longer the case, and those interpreting provisions of law should keep changing social mores in mind.
Today, there is a need to legally recognise non-traditional family set-ups.
7) It happened on International Safe Abortion Day
By a happy coincidence, the groundbreaking MTP ruling came on International Safe Abortion Day. When a lawyer pointed this out, Justice Chandrachud said: “I had no idea that this would coincide with safe abortion day. Thank you for informing us.”
How the case arose
The case arose when a 25-year-old unmarried woman, after being refused permission by the Delhi High Court to terminate her pregnancy of 23 weeks and five days, approached the Supreme Court.
The woman said that her pregnancy arose out of a consensual relationship. She was seeking an abortion as her partner had refused to marry her.
The SC after consulting a medical board constituted by AIIMS Delhi, passed an ad-interim order on July 21, 2022, allowing her to abort her pregnancy.