India's top court legalises abortion for unmarried women

'All women are entitled to safe and legal abortion,' the Supreme Court said in ruling on Thursday

India's Supreme Court said unmarried women should have the same right of choice on abortion as married women. Reuters
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India’s top court has ruled that all women, irrespective of their marital status, have the right to seek termination of their pregnancy, in a landmark judgment that aims to protect the rights of unmarried women.

The Supreme Court said the exclusion of unmarried women who conceive out of a consensual relationship from the abortion laws was unconstitutional.

“All women are entitled to safe and legal abortion,” the court said in its ruling on Thursday.

“The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman,” Justice Dayanand Chandrachud said in the ruling.

The court was hearing a petition filed by an unmarried woman, 25, who conceived while in a live-in relationship but decided to have an abortion after her partner refused to marry her.

The Delhi High Court had earlier rejected her plea for termination of her pregnancy, saying the Medical Termination of Pregnancy Act did not cover abortions by unmarried women in a consensual relationship.

The 1971 act legalised the termination of pregnancy up to 20 weeks with the advice of a doctor, but with certain oversights to prevent abortions based on the gender of the foetus.

India has a skewed gender ratio that experts blame on the abortion of female foetuses in a country where parents generally prefer male children.

The law was amended last year to increase abortion limit to 24 weeks for rape survivors, estranged or separated women, women with physical or mental disabilities, pregnant women facing disasters or emergencies, and in cases of foetal malformation.

The oversight mechanism was tightened by requiring the approval of two doctors.

However, it did not specify the situation of unmarried women.

Justice Chandrachud said that the clause was understood as “only married women can indulge in sexual activities” and it “was not constitutionally sustainable”.

“The artificial distinction between married and unmarried women cannot be sustained. Women must have the autonomy to have free exercise of these rights”, he said.

The bench also said that abortion would be allowed in pregnancies arising from forcible sex by the husband, a new for the country where spousal rape is not illegal.

India does not recognise marital rape despite rising demands from women's rights groups.

The Delhi High Court in May delivered a split ruling on pleas to declare marital rape a criminal act, saying that the matter would have to be considered by the top court.

The top court said in its ruling on Thursday that “married women may also form the part of the class of survivors of sexual assault or rape”.

“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.

India’s legal framework on abortion is largely considered progressive, particularly compared to the United States where abortions have been banned in at least 14 states.

The judgment was widely celebrated by women, women's rights activists and parliamentarians across the country.

“A huge step forward — SC allows abortion up to 24 weeks irrespective of marital status — says to do otherwise will be violative of Article 14. Thank you, Milords!” Mahua Moitra, an MP, wrote on Twitter, referring to an article of the constitution that guarantees equality before the law to all citizens.

Updated: September 30, 2022, 2:43 PM
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