Landmark: Supreme Court upholds same MTP regulations for both Married and Unmarried Women
New Delhi: In a landmark judgment concerning abortion laws in the country, the apex court that is Supreme Court have held that all women, irrespective of their marital status, are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act.
Holding that the rights of reproductive autonomy give similar rights to unmarried women as that to married women the top court bench, in its verdict, said the 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.
A Bench of Justices D.Y. Chandrachud, J.B. Pardiwala and A.S. Bopanna delivered the verdict on the interpretation of the MTP Act, and whether unmarried or single women can be allowed like their married counterparts the benefit of abortion up to 24 weeks.
"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. Women must have autonomy to have free exercise of these rights", Justice Chandrachud, the presiding judge of the bench, was quoted noting by Live Law.
Further the bench observed that the foetus relies on the sustainability of the woman's body. Therefore, the decision for terminating the pregnancy is firmly rooted in their right of bodily autonomy. In such a context, if a woman gets forced by the State for carrying an unwanted pregnancy to the full term, it would amount to an affront to her dignity.
Under the MTP Act provisions, 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, adds PTI.
However, the time period is 20 weeks for widows and unmarried women, who are or were in consensual relationships, for allowing abortion under the statute.
The bench, on August 23, had reserved its verdict on interpretation of the MTP Act provisions which makes a distinction between married and unmarried women on the issue of abortion.
Observing there is a need to "fine-tune" the provisions in the MTP rules, the top court had also said it would like to add a category of women, who suffer desertion irrespective of marital status, to the seven categories of women eligible to seek abortion till 24 weeks of pregnancy.
The Centre, represented by Additional Solicitor General Aishwarya Bhati, had told the top court that discrimination, if any, is not in the Act passed by Parliament and if the court is willing to intervene, then it should do so in the MTP Rules, 2003.
Bhati, appearing for the Centre and assisting the court on the issue, had said there is no discrimination under the MTP (Amendment) Act of 2021 and that categorisation has been provided in the relevant rules under the Act.
She had said experts have their own views on these issues and according to them categorisation has been done to avoid the misuse of laws including the Pre-Conception and Pre-Natal Diagnostic Techniques (PC-PNDT) Act due to sex determination of the foetus.
"One thing, we should make it clear that we are going to draft our judgement in such a way that we are not going to dilute the provisions of PC-PNDT Act", the court had said.
Recognition to marital rape
The 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 consent or against their will regardless of whether such forced intercourse occurs in the context of matrimony," the court said.
The top court said the distinction between married and unmarried women under the abortion laws is "artificial and constitutionally unsustainable" and perpetuates the stereotype that only married woman are sexually active.
Medical Dialogues had earlier reported that dismissing the Delhi High Court order which had barred an unmarried woman from terminating her 24-weeks pregnancy from a consensual relationship, the Supreme Court on July 21 had provided ad-interim relief and allowed her for abortion.
Apart from this, the bench also expressed its opinion that the High Court had opted for an "unduly restrictive view" to note that Rule 3(b) of Medical Termination of Pregnancy Rules, 2003 mentions about "change in marital status" of woman, followed by expressions of widowhood or divorce. The top court opined that the expression "change in marital status" must be given a "purposive interpretation."
Referring to the fact that a widow or a divorcee woman is allowed aborting her pregnancy in up to 24 weeks, the top court bench had opined that the Parliamentary intent was not to restrict the reliefs to only marital situations.
At this outset, the bench comprising of Justices DY Chandrachud and Surya Kant had also referred to the 2021 amendment of the Medical Termination of Pregnancy Act, which uses the word "partner" instead of "husband" in the explanation to Section 3.
"A woman's right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution and she has a sacrosanct right to bodily integrity," it had said.
"Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. Live-in relationships have been recognised by this Court," it had added.
