On Abortion And Marital Rape, Supreme Court's Massive Order

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.