SAFE, LEGAL ABORTION IS A RIGHT FOR ALL WOMEN: INDIA’S TOP COURT

Thu 29 September 2022:

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 Indian Supreme Court ruled today.

“Even an unmarried woman can undergo abortion up to 24 weeks on par with married women,” Justice D Y Chandrachud of India’s Supreme Court said on Thursday, holding that a lack of marital status could not deprive a woman of the right.

A law dating from 1971, the Medical Termination of Pregnancy (MTP) Act, had limited the procedure to married women, divorcees, widows, minors, “disabled and mentally ill women” and survivors of sexual assault or rape.

The top court added that sexual assault by husbands can be classified as “marital rape” under the MTP law. Indian law does not consider marital rape an offence, though efforts are being made to change this.

The court said forceful pregnancy of a married woman can be treated as marital rape for the purposes of abortion.

“Married women may also form part of the class of rape survivors. Rape means sexual intercourse without consent, and intimate partner violence is a reality. In this case also, woman may get forcefully pregnant,” it said.

Thursday’s decision came in response to a petition by a 25-year-old woman who said her pregnancy resulted from a consensual relationship but she had sought abortion when it failed.

Criminalising abortion does not stop abortions, it just makes abortion less safe.

— Amnesty International (@amnesty) September 28, 2022

The ruling is a milestone for the rights of Indian women, activists said. “A huge step forward,” parliamentarian Mahua Moitra posted on Twitter.

Here are top 10 points on this landmark verdict

The ground-breaking judgment by the bench of Justice DY Chandrachud, Justice AS Bopanna and Justice JB Pardiwala also saw the court recognise marital rape, though purely within the ambit of abortion.
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.
“Married women may also form part of class of survivors of sexual assault or rape. Ordinary meaning of the word rape is sexual intercourse with a person without their consent or against their will regardless of whether such forced intercourse occurs in the context of matrimony,” the court said.
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 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 judgment said that the consequences of an unwanted pregnancy on women’s body and mind “cannot be understated”. Stressing that the biological process of pregnancy transforms the body of women. The decision to carry pregnancy to full term or terminate it is “firmly rooted under right to bodily autonomy and decisional autonomy of the pregnant women”, the court said.
If women with unwanted pregnancies are forced to carry their pregnancies to term, the State would be stripping them of the right to determine the immediate and long term path that their life will take, the judgment added.
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 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 and that 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 will 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.