Marital status cannot be a ground to deprive her of the right of abortion

New Delhi: All women are entitled to a safe and legal abortion process and making any distinction between a married and an unmarried woman in this regard is unconstitutional, the Supreme Court ruled today.

The ground-breaking judgment by the Bench of Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice A.S. Bopanna also saw the Court recognise marital rape, though purely within the ambit of abortion.

The Bench said the artificial distinction between married and unmarried women cannot be sustained and that women must have the autonomy to have free exercise of these rights.

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.

The marital status of a woman cannot be a ground to deprive her of the right of abortion, the Court said, while ruling that even unmarried women would be entitled to terminate an unwanted pregnancy within 24 weeks. The Court said depriving single or unmarried women of the right to abort an unwanted pregnancy is a violation of fundamental rights.

It said a 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.

The landmark verdict came on a petition by a 25-year-old unmarried woman. The woman had appealed against a Delhi High Court order that ruled that she is not entitled to abortion under the Act as she was unmarried, and the pregnancy followed a consensual relationship. The woman had submitted that she was 23 weeks into her pregnancy.

She had told the Supreme Court that her partner had refused to marry her. She had said that she is the eldest of five siblings and her parents are farmers, stressing that she does not have the means to bring up a child.

On July 21, the Court had allowed the woman to abort the foetus provided a medical board concluded that it would not harm her. The Bench had then said that provisions of the abortion law, amended in 2021, now include the word “partner” instead of “husband”. This, the Court said, shows that Parliament did not want to confine a situation of abortion to only a matrimonial relationship.

The Court had issued a notice to the Centre to address the question of marital status with regard to the right of abortion. On Aug. 23, it had reserved its verdict on the interpretation of the abortion law.