The distinction between married and unmarried woman for the purposes of the MTP Act is artificial and constitutionally unsustainable and it perpetuates the stereotype that only married women indulges in sexual activities, the top court said.
In a significant verdict that has an impact on women's rights and physical autonomy across India, the Supreme Court of India on Thursday, September 29, declared that all women have the right to safe abortion, irrespective of their marital status. The SC verdict coincided with International Abortion Day on September 28.
The distinction between married and unmarried woman for the purposes of the MTP Act is artificial and constitutionally unsustainable and it perpetuates the stereotype that only married women indulge in sexual activities, the court said.
The verdict came when the apex court was hearing a plea asking whether an unmarried woman can seek abortion of pregnancy of 20-24 weeks term arising out of a consensual relationship.
To be eligible for seeking medical termination of pregnancy between 20 to 24 weeks, i.e. under Section 3(2)(b)t, it is required to meet the stipulations in the Medical Termination of Pregnancy Rules, 2003. It is pertinent to note that the Rules does not permit abortion of 20-24 weeks' pregancy for unmarried women.
Striking down the validity of the exclusion of unmarried woman from Rule 3(b) of MTP Rules, Justice DY Chandrachud said, "The interpretation of MTP has to reflect the societal realities. The 2021 Statement of Objects doesn't differentiate between married and unmarried women.
He went on to add, "Unsafe abortions are preventable. Our understanding of mental health have to be considered in common parlance. Account must be taken of a pregnant woman's environment," as per Live Law.
While the verdict is significant for unmarried women, the SC also made significant observations about the threat of sexual violence to married women and marital rape.
"Married women may also form part of survivors of sexual assault or rape. A woman may become pregnant due to non consensual act by husband. Sex and gender-based violence in all its form has been part of families," Justice Chandrachud said.
Referrng to India's rape laws, the court said, "We have also briefly touched upon Section 375 of IPC. The meaning of rape must include the meaning of marital rape solely within the meaning of MTP Act and Rules". Such a requirement of proving rape for the purpose of MTP Act shall be against the object of the Act," Chandrachud said.
This is a significant shot in the arm for activists, organisational and married women in abusive relationships who have been seeking the criminalization of marital rape as a punishable crime.