Unmarried Women Also Entitled To Safe & Legal Abortion, Marital Rape Is Rape: Supreme Court

We celebrated Safe Abortion Day on September 28, and on Septmerber 29, the Supreme Court of India declared that even unmarried women are entitled to safe abortions between the 20th and 24th weeks of their pregnancies, borne out of consensual relationships.

The bench called it unconstitutional to exclude unmarried women, who conceive out of a live-in relationship, from the Medical Termination of Pregnancy Rules (MTP).

Noting the 2021 amendment to the Medical Termination of Pregnancy Act, the SC said, “All women are entitled to safe and legal abortion.” There is no distinction between married and unmarried women.

The bench comprised Justices DY Chandrachud, AS Bopanna, and Surya Kant. It also noted that the definition of rape also includes marital rape. It said, "The meaning of rape must therefore be understood as including marital rape solely for the purpose of the MTP Act and any other rules and regulations framed thereunder."

Background Of The Case

A 25-year-old woman approached the Delhi High Court seeking a safe abortion at 23 weeks and five days of her pregnancy that arose from a consensual relationship.

She did not want to give birth to the child because she was unmarried and her partner had refused to marry her. The division bench of the High Court refused interim relief to her stating that unmarried women were not covered under the MTP Rules 2003.

On July 21, 2022, the woman approached the Supreme Court, which granted her wish to abort the pregnancy at AIIMS Delhi, without risking her life.

The Ongoing Case

In reference to the same case, the SC was hearing the petition for abortion under 3B of MTP Rules, which defines safe abortion of pregnancy upto 24 weeks. The bench was asked if the exclusion of unmarried women, who conceived out of a consensual relationship, was the right rule.

Justice Chandrachud, the presiding judge of the bench, said if Rule 3B(c) was read-only in the context of married women, it would give birth to a stereotype that only married women have intercourse. “This is not constitutionally sustainable,” he added.

He also said that the distinction between married and unmarried women cannot sustain, and every woman must have the (bodily) autonomy to freely exercise rights to safe abortion.

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The court also said that both married and unmarried women have the same right of ‘reproductive autonomy’. The bench added, “The object of section 3(2)(b) of the MTP Act is in allowing a woman to undergo abortion after 20-24 weeks. Therefore, including only married and excluding unmarried women will violate Article 14 (equality before the law) of the constitution.”

The court also noted that since the foetus grows in a woman’s womb, she has the complete bodily autonomy to make the decision whether she wants to continue with her pregnancy. It also said, “If the State forces a woman to carry an unwanted pregnancy to the full term, it will amount to an affront to her dignity.”

“We would be remiss in not recognising that intimate partner violence is the reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex and gender-based violence is a deeply regrettable one,” the apex court noted while talking about marital rape.

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Rule 3B Of MTP

The Maternity Termination of Pregnancy Act allows women to abort their pregnancies. It includes,

A) Minors

B) Survivors of rape, incest, and sexual assault

C) Women with physical and mental disabilities

D) The obstruction in the growth of the foetus which would lead to a child born with disabilities

E) Change in marital status during a pregnancy

F) Pregnant women in humanitarian settings, emergencies and disasters declared by the Government

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