The Supreme Court (SC) observed that all women, irrespective of their marital status, are entitled to safe and legal abortion. The court said that the marital status of women cannot be grounds to deny her the right to abort an unwanted pregnancy. Excluding single women from the ambit of the 2003 Medical Termination of Pregnancy Rules is unconstitutional, the top court said.
More significantly, in an observation that will likely have bearing on pending pleas seeking to criminalise marital rape, the Supreme Court said the meaning of rape must include "marital rape" for the purpose of the Medical Termination of Pregnancy (MTP) Act.
The law cannot create such "artificial classification based on such narrow grounds". The state must ensure reproduction and safe sex is disseminated to all segments of the public to avoid unwanted pregnancies, the top court said.
The Supreme Court's judgment, which was incidentally given on Safe Abortion Day, came from an appeal by a 25-year-old unwed woman who was denied the right to abort by the Delhi High Court because she was almost 24 weeks pregnant.
The woman has challenged Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which says that only some categories of women are allowed to seek termination of a pregnancy between 20-24 weeks.
While allowing her to terminate the pregnancy, the Supreme Court had found the need to re-evaluate the provision of the Medical Termination of Pregnancy Rules.
The Medical Termination of Pregnancy Act, 2021 allows unmarried women to abort legally upto 20 weeks. On Thursday, the bench of Justice DY Chandrachud, Justice AS Bopanna, and Justice JB Pardiwala held that the provisions in the MTP allowing women to terminate their pregnancy beyond 20 weeks cannot be denied just because a woman is unmarried.
According to the MTP Rules the termination of the pregnancy upto 24 weeks applies only to women who are survivors of sexual assault, rape, or incest, minors, whose marital status changes during an ongoing pregnancy, women with major physical disabilities, are mentally ill, discovered that the foetus has malformation or pregnant women in disaster or emergency situations.
BOOM breaks down the key observations made in the judgment authored by Justice DY Chandrachud.
Cannot distinguish between married and unmarried women
The Supreme Court observed that abortion cannot be denied based on the marital status of a women or her caste.
The bench noted that provisions in the MTP Rules need to be fine-tuned to make women across the seven categories as outlined in the MTP Rules eligible to seek abortion till 24 weeks of pregnancy. This would result in the addition of a category of women who suffer desertion, which would be irrespective of their marital status.
Interpretation of the MTP Act must be in accordance with societal realities and demands readjustment of laws and cannot be in past archives. The unamended 1971 MTP act was concerned with married women, the bench added.
The 2021 statement of objects and reasons does not differentiate between married and unmarried, thus all (women) are entitled to safe and legal abortion, the bench clarified.
'Rape' must include marital rape for purpose of abortion
The top court said rape means sexual intercourse without consent and intimate partner violence is a reality. Married women may also form part of sexual assault survivors, it added.
"A woman may become pregnant due to non-consensual act by the husband. Sex and gender-based violence in all its form have been part of families," the court said.
The meaning of rape must be understood to be "marital rape" solely for the purposes of the MTP Act and Rules, the top court said adding that, "such a requirement of proving rape for the purpose of MTP Act shall be against the object of the Act."
"This is important to save the woman from forced pregnancy," the court said. "Any pregnancy alleged to be caused by force by pregnant woman is rape," it added.
The bench also said that the MTP Act and the Protection of Children from Sexual Offences (POCSO) Act, 2012 must be read harmoniously. "There is no need to disclose the identity of minor as under section 19 of the act," the court said. "There is no need to disclose the identity of a minor in criminal proceedings. This will safeguard the right to privacy in birth and the autonomy of a minor," it further added.
Women must have autonomy over bodily decisions and reproductive rights
The top court acknowledged that the circumstances of every woman may be unique. A woman in a situation of emergency or disaster may decide to have the child but it may also impact the choice of a woman who may think pregnancy is not viable to keep. It is the prerogative of a woman, Justice DY Chandrachud said reading operative portions of the judgment.
The impact of continuing an unwanted pregnancy on a woman must take social realities into account. [MTP] Rules 3 (b) and (c) is based on a change in marital status leading to a change in material status, the bench noted. The fact that widowhood and divorce are mentioned does not affect this, the court said. A woman may undergo a sea of change in life other than separation from their partners.
"It is ultimately the prerogative of each woman to decide as per her material circumstances. Various economic, cultural or social factors play a part,"Justice Chandrachud said.
The Supreme Court relied on its judgments including the 2008 Puttaswamy right to privacy verdict to underscore that the right to reproductive autonomy is related to bodily autonomy. "The foetus relies on the woman's body to sustain. Therefore, the decision to terminate is firmly rooted in their right of bodily autonomy," the court said.
"If women are prevented from this, the state would be stripping them of the long-term path they take. Doing so will strip women of their rights and it would be an affront to their dignity," Justice Chandrachud said.
Bolstering women's rights, the court said women have the right to choose contraception, the right to choose the number of children they want to have, and the right to abortion to be taken without the influence of social factors.
There are social factors that prove to be a barrier to such decisions, SC added.
Safe abortion rights can prevent maternal morbidity and mortality
The Supreme Court said unsafe abortions are preventable. These are preventable causes of maternal morbidity and mortality.
The court pointed out that 67 percent of the abortions were unsafe and daily almost eight women die because of this. Denying access to safe abortion increases the chances of a woman resorting to unsafe methods of abortion, it added.
The court said the WHO defines mental health as one's ability to live well, and learn well. Our understanding of mental health should be based on common parlance and not medical terminologies, the top court stressed.
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