Unmarried women entitled to safe and legal abortion too, act also includes marital rape: SC

The Supreme Court of India. (File image)

Sexual assault by husband can take the form of rape, the Supreme Court said in the first legal recognition of marital rape in the country on Thursday, while also ruling that unmarried women are entitled to seek abortion of pregnancies arising out of a consensual relationship at 20-24 weeks.

The top court’s ruling came as it was interpreting the Medical Termination of Pregnancy (MTP) Act and the related rules visa-vis the discrimination between married and unmarried women to allow abortion till 24 weeks of pregnancy.

“All women are entitled to safe and legal abortion… The interpretation of MTP has to reflect the societal realities. The 2021 Statement of Objects doesn’t differentiate between married and unmarried women," Justice DY Chandrachud said.

More significantly, the judge added: “Under the MTP Act, rapes shall also include marital rape… Sexual assault by husbands can take a form of rape.”

Ruling that married women may also form a part of class of survivors, Justice Chandrachud said: “Rape means sexual intercourse without consent and intimate partner violence is a reality. In this case also, woman may get forcefully pregnant… Any pregnancy alleged to be caused by force is rape.”

He, however, added that “… the meaning of rape must be understood to be marital rape solely for the purposes of MTP Act. This is important to save the woman from a forceful pregnancy.”

THE CASE

A bench of Justices DY Chandrachud, JB Pardiwala and AS Bopanna had on August 23 reserved its verdict on the issue of interpretation of the MTP Act, saying it would interpret the Act in such a manner that discrimination between married and unmarried women is removed to allow abortion till 24 weeks of pregnancy.

The bench had noted that the provisions in the MTP rules needed to be fine-tuned, and in the seven categories of women eligible to seek abortion till 24 weeks of pregnancy, it would add a category of women who suffer desertion, irrespective of marital status.

Additional Solicitor General Aishwarya Bhati, appearing for the Centre and assisting the court on the issue, had contended that there is no discrimination under the MTP (Amendment) Act, 2021, and categorisation has been provided in the relevant rules under the Act. She submitted that according to experts, categorisation has been done to curb the misuse of laws, including sex determination of the foetus.

The bench had then said that its judgment will be shaped in such a way that the provisions of Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act are not diluted. The court on Thursday reiterated the same. “Nothing in this judgment should be read to dilute the PCPNDT Act," Justice Chandrachud said.

On July 21, the top court had expanded the scope of the MTP Act to include unmarried women and allowed a 25-year-old to abort her 24-week pregnancy arising out of a consensual relationship.

“A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution and she has a sacrosanct right to bodily integrity,” it had said. “Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. Live-in relationships have been recognized by this Court.”