Priyanka Singh

Published on: September 29, 2022 at 21:10 IST

The Supreme Court, on Thursday, declared that unmarried women are entitled to seeking abortion of pregnancy out of a consensual relationship as well in the term of 20-24 weeks.

The Court ruled that a woman conceiving out of a live-in relationship is constitutional, but the exclusion of the same from the Medical Termination of Pregnancy Rules is unconstitutional.

The Court stated that, “All women are entitled to safe and legal abortion,” and that, the issue related to whether the exclusion of unmarried woman having a pregnancy out of a consensual relationship is valid as per Rule 3B of the Medical Termination of Pregnancy Rules, where the Rule 3B talks of categories of women who can avail the termination of their pregnancy in 20-24 weeks.

Justice Chandrachud read out excerpts from a judgment which stated, “If Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities.”

“This is not constitutionally sustainable. The artificial distinction between married and unmarried women cannot be sustained. Women must have autonomy to have free exercise of these rights.”

Justice Chandrachud added that the reproductive autonomy give an unmarried woman the same rights as a married woman, and that the object of the Section 3(2)(b) of the Act is to allow an abortion within 20-24 weeks.

Therefore, excluding unmarried woman would be a violation of the Article 14 of the Constitution of India.

Categories of women included in Section 3B –

  • Survivors of rape, sexual assault or incest;
  • Minors;
  • Change of marital status during ongoing pregnancy;
  • women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)]
  • mentally ill women including mental retardation;
  • the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
  • women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

The foetus relies on the woman’s body to sustain. Therefore, the decision to terminate the same should be relied on the woman.

A bench consisting of Justices A.S Bopanna, DY Chandrachud and J.B Pardiwala had reversed judgment in the 23rd August case.

When the MTP Act was enacted in 1971, it covered largely the area concerning a married woman, but laws must adapt to the changing societal norms and dynamism of the human nature.

Post pronouncement of the judgment, a lawyer informed the bench of the day being the International Safe Abortion Day, which was a coincident as per the bench.

The Case –

A 25-year-old unmarried woman moved to the Delhi High Court seeking for termination of the pregnancy of 23 weeks and 5 days, which took place out of a consensual relationship and her partner had refused to marry her.

However, the High Court bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad refused to grant her an interim relief, leaving her on the fence, due to the limitations of the MTP Rules, 2003.

On 21st July, 2022, she approached the Supreme Court which passed an ad-interim order which allowed her to abort her pregnancy subject to medical board constituted by AIIMS Delhi, which concluded no danger to life due to the abortion.

The Supreme Court observed the High Court’s judgment as narrow and that the phrase of “change in marital status of woman” under Rule 3(b) could be given a ‘purposive interpretation’.

The bench also upheld the amendment in the replacement of the word ‘husband’ with the word ‘partner’.

The order stated that, “There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women.”

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