Friday 2 December 2022
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PoliticsIndiaAbortion is right of woman, married or unmarried: Supreme Court

Abortion is right of woman, married or unmarried: Supreme Court

A woman regardless of her marital status is entitled to a safe and legal abortion process; making a distinction between a married and an unmarried woman in this regard is unconstitutional, the Supreme Court has ruled. The judgment, which overturned a Delhi High Court verdict, was led by the bench of Justice DY Chandrachud, Justice AS Bopanna and Justice JB Pardiwala also saw the court recognise marital rape, though purely within the ambit of abortion.

The Supreme Court ruled that under the Medical Termination of Pregnancy Act, the definition of rape must include marital rape. This observation may pave the way for later judgments on marital rape, a subject of intense debate in the country. "Married women may also form part of class of survivors of sexual assault or rape. Ordinary meaning of the word rape is sexual intercourse with a person without their or against their will regardless of whether such forced intercourse occurs in the context of matrimony," the court said.  

The highest court of the country said marital status of a woman could not be a ground to deprive her of the right of abortion. It ruled that even unmarried women would be entitled to terminate an unwanted pregnancy within 24 weeks. The court said depriving single or unmarried women of the right to abort an unwanted pregnancy would be a violation of fundamental rights.

A distinction between married and unmarried women under the abortion laws is "artificial and constitutionally unsustainable" and perpetuates the stereotype that only married women are sexually active, the Supreme Court affirmed. 

"Consequences of an unwanted pregnancy on women's body and mind cannot be understated. Foetus relies on pregnant women's body for nourishment and until it is born. Biological process of pregnancy transforms women body. The decision to carry pregnancy to full term or terminated is firmly rooted under right to bodily autonomy and decisional autonomy of the pregnant women," the apex court said. 

If women with unwanted pregnancies are forced to carry their pregnancies to term, the state would be stripping them of the right to determine the immediate and long term path that their will take, the court said.  

The landmark verdict is on a petition by a 25-year-old unmarried woman who had appealed against a Delhi High Court order that ruled that she is not entitled to abortion under the law as she was unmarried, and the pregnancy followed a consensual relationship. The woman had submitted that she was 23 weeks into her pregnancy.

The woman had told the Supreme Court that her partner had refused to marry her. She had said that she is the eldest of five siblings and her parents are farmers, stressing that she does not have the means to bring up a child.

On 21 July, the court had allowed the woman to abort the foetus, provided a medical board concluded that it will not harm her. The bench had then said that provisions of the abortion law, amended in 2021, now include the word "partner" instead of "husband". The court said this showed that the parliament did not want to confine a situation of abortion to only a matrimonial relationship. 

The court had issued a notice to the centre to address the question of marital status with regard to the right of abortion. On 23 August, it had reserved its verdict on the interpretation of the abortion law.

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