In a ground-breaking judgment on women’s reproductive rights and bodily autonomy, the Supreme Court on Thursday said all women are entitled to safe and legal abortion, and the distinction between married, unmarried women is unconstitutional.

The top court said unmarried women are also entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.

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A bench headed by Justice DY Chandrachud said the exclusion of unmarried women, who conceive out of live-in relationship, from the Medical Termination of Pregnancy Rules is unconstitutional. “All women are entitled to safe and legal abortion,” the top court said.

It added that the rights of reproductive autonomy give an unmarried woman similar rights as a married woman.

The Supreme Court noted that the 2021 amendment to the Medical Termination of Pregnancy Act, does not make a distinction between married and unmarried women.

The top court said the artificial distinction between married and unmarried women cannot be sustained. “Women must have autonomy to have free exercise of rights…,” noted the bench.

The bench said, “Any pregnancy alleged to be caused by force by a pregnant woman is rape.”

The bench which also included Justices AS Bopanna and JB Pardiwala, said that marital rape has to be considered as falling within the meaning of ‘rape’ for the purpose of the Medical Termination of Pregnancy Act and Rules and in order to save women from forceful pregnancy.

“Married women may also form the part of the class of survivors of sexual assault or rape. The ordinary meaning of the word rape is sexual intercourse with a person without consent or against their will. Regardless of whether such forced intercourse occurs in the context of matrimony, a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband,” the bench said.

Pronouncing the judgement, the bench said, “We would be remiss in not recognising that intimate partner violence is the reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex and gender-based violence is a deeply regrettable one. Sex and gender-based violence in all its form in the context of the family have long formed a part of the lived experiences of women.”

Though the apex court is yet to adjudicate the marital rape issue, the comments from the bench on marital rape for the purpose of unwanted pregnancy may pave the way for later judgment on the issue.

It also held that a woman need not prove the commission of rape or sexual assault to seek termination of pregnancy under the MTP Act.

The top court also held that the marital status of a woman can’t be ground to deprive her right to abort unwanted pregnancy.

Interpreting the Medical Termination of Pregnancy (MTP) Act, the Supreme Court said that whether single and unmarried, all women have the right to abort under MTP Act and Rules till 24 weeks of pregnancy.

The upper limit for the termination of pregnancy is 24 weeks for married women, special categories — including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.

The rights of reproductive autonomy give unmarried women similar rights as married women, the bench held.

Holding that all woman are entitled to safe and legal abortion, the top court said the distinction between married and unmarried woman for the purposes of the MTP Act is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women indulges in sexual activities.

“Law cannot create such artificial classification based on narrow grounds… the decision to carry a pregnancy to full term or to abort it lies in reproductive autonomy of a woman, which is rooted in bodily autonomy. Depriving her of this right will be an affront to a woman’s right to dignity,” the bench held in its ruling.

The verdict of the apex court came on a petition filed by a 25-year-old single woman, whose plea for termination of her 24-week pregnancy was denied by the Delhi High Court, but the Supreme Court allowed her to abort the foetus if there was no risk to her life.

Earlier, the apex court had questioned if a married woman is allowed to terminate up to 24 weeks of pregnancy under the MTP Act and Rules framed under it, why to deny the same to unmarried women, even though the risk is the same for both.

The woman had approached the apex court after the Delhi High Court declined to grant permission to abort her pregnancy which had arisen out of a consensual sexual relationship, saying that it virtually amounts to killing the foetus.

The High Court on July 15 said that permitting abortion at this stage would virtually amount to killing the foetus and asked the woman to rather put up her child for adoption.

On August 23, the Supreme Court had said it would interpret Medical Termination of Pregnancy (MTP) Act and the rules to eliminate the discrimination between married and unmarried women for allowing abortion till 24 weeks of pregnancy.

On July 21, the top court had allowed a 25-year-old to abort her 24-week pregnancy arising out of a consensual relationship.