Supreme Court on Legal Abortion: All women are entitled to a safe and legal abortion procedure and making any distinction between a married and unmarried woman in this regard is unconstitutional, the Supreme Court ruled today.
In a significant decision by a bench of Justices DY Chandrachud, AS Bopanna and JB Pardiwala, the court also recognized marital rape, though it falls within the ambit of abortion altogether.
The court ruled that under the Medical Termination of Pregnancy Act, the definition of rape must include marital rape. This observation could pave the way for subsequent decisions on marital rape, a subject of intense debate in the country.
“Married women may also become part of a survivor of sexual assault or rape. The general meaning of the term rape is sex with a person without their consent or against their will, even when such forced intercourse refers to marriage happens or not.” The court said.
The marital status of a woman cannot be a ground to deny her the right to an abortion, the court ruled, adding that unmarried women would also be entitled to terminate the unwanted pregnancy within 24 weeks.
The court said the distinction between married and unmarried women under abortion laws is “artificial and constitutionally untenable” and perpetuates the stereotype that only married women are sexually active.
The verdict said the consequences of unwanted pregnancy on women’s bodies and minds “cannot be underestimated”. Emphasizing that the biological process of pregnancy changes women’s bodies. The court said the decision to carry a pregnancy to full term or to terminate it is “strongly vested in pregnant women’s right to bodily autonomy and adjudicatory autonomy”.
The decision states that if women with unwanted pregnancies are forced to terminate their pregnancies, the state will strip them of their right to determine the immediate and long-term path that will be their life.
The historic verdict came on the petition of a 25-year-old unmarried woman. The woman had appealed against an order of the Delhi High Court that she was not entitled to an abortion under the Act as she was unmarried, and the pregnancy followed a consensual relationship.
The woman had said that she was 23 weeks pregnant and that the partner had refused to marry her. She had said that she was the eldest of five siblings and that her parents were farmers, insisting that she did not have the means to raise a child.
On July 21, the court had allowed the woman to have an abortion, provided the medical board came to the conclusion that it would not cause any harm to her. The bench had then said that the provisions of the amended abortion law in 2021 now include the word “partner” instead of “husband”. This shows that Parliament did not want to limit the condition of abortion to mere marital relations, the court said.
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