Unmarried persons cannot be denied rights based on narrow patriarchal principles on “permissible sex”: Key takeaways from SC’s historic verdict on right to safe abortion

While the interim order was passed in the case on 21.07.2022, the Supreme Court took over two months to write a far-reaching 75-pages-long verdict, touching upon various aspects like purposive interpretation of Medical Termination of Pregnancy laws, equal status of married and unmarried or single women, right to reproductive autonomy, right to dignity, effect of unwanted pregnancy on mental health of women, etc.

“Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental wellbeing.”

Note: The Court has used the term “woman” in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.

Supreme Court: An unemployed unmarried woman found out in June that she was pregnant. In the same month her partner abandoned her. Delhi High Court held that she does not have a right to a safe abortion as her case was “clearly not covered” in any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (MTP Rules).

When the matter reached before the Supreme Court, on 21.07.2022 the 3-judge bench of Dr. DY Chandrachud, Surya Kant and AS Bopanna, JJ, in a progressive take, held that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried. It observed that after the 2021 amendment to the Medical Termination of Pregnancy Act, 1971 (MTP Act), the phrase ‘married woman’ has been replaced by ‘any woman’ and the word ‘husband’ has been replaced by ‘partner. Which goes on to show that the legislature did not intend to leave out unmarried women from the scope of the Act.

Hence, Rule 3B (c) which provides for “change of marital status during the ongoing pregnancy” should be given purposive interpretation to include an unmarried woman who’s partner has abandoned her.

The Court said 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, especially when live-in relationships have already been recognized by the Court.

Woman cannot be denied right to safe abortion only on the ground of her being unmarried: Supreme Court

While the interim order was passed in the case on 21.07.2022 in X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 905, allowing the woman to terminate her pregnancy, the Court took over two months to write a far-reaching 75-pages-long verdict, touching upon various aspects like equal status of married and unmarried or single women, right to reproductive autonomy, right to dignity, effect of unwanted pregnancy on mental health of women, etc.. The 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and JB Pardiwala, JJ observed that,

“Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances.”

Here are the key takeaways from what the Supreme Court said in the detailed verdict:

Barriers to accessing safe and legal abortions

Despite the enactment of the MTP Act, a number of hurdles, such as insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care, continue to prevent full access to safe and legal abortions, pushing women to avail of clandestine, unsafe abortions. Unmarried women face particular barriers due to gender stereotypes about women’s sexual autonomy outside marriage. Such barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy.

Transcending the institution of marriage as a source of rights

The Court stressed upon the need for the law to remain cognizant of the fact that changes in society have ushered in significant changes in family structures. It observed,

“While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another).”

Societal reality, as observed in Deepika Singh v. Central Administrative Services, 2022 SCC OnLine SC 1088, indicates the need to legally recognize non-traditional manifestations of familial relationships. Such legal recognition is necessary to enable individuals in nontraditional family structures to avail of the benefits under beneficial legislation, including the MTP Act.

Also read: Family” includes domestic, unmarried/queer relationships

Equal status of married and unmarried or single women

In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws.

“Sexual assault” or “rape” under Medical Termination of Pregnancy laws includes “marital rape”: holds Supreme Court, without changing the contours of ‘rape’ defined under Section 375 IPC

Mental Health

Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. The understanding of the term mental health cannot be confined to medical terms or medical language but should be understood in common parlance. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting “grave injury to her physical or mental health”, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. The expression “grave injury to her physical or mental health” used in Section 3(2) is used in an overarching and all-encompassing sense. The two explanations appended to Section 3(2) provide the circumstances under which the anguish caused by a pregnancy may be presumed to constitute a grave injury to the mental health of a woman.

Right to reproductive autonomy

The right to reproductive autonomy is closely linked with the right to bodily autonomy i.e. the right to take decisions about one’s body. The decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman i.e. the right to choose the course of her life as,

“The consequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated. The foetus relies on the pregnant woman’s body for sustenance and nourishment until it is born. The biological process of pregnancy transforms the woman’s body to permit this. The woman may experience swelling, body ache, contractions, morning sickness, and restricted mobility, to name a few of a host of side effects. Further, complications may arise which pose a risk to the life of the woman. A mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy.”

Hence, it is the woman alone who has the right over her body and is the ultimate decisionmaker on the question of whether she wants to undergo an abortion.

Right to dignity

The right to choose for oneself – be it as significant as choosing the course of one’s life or as mundane as one’s day-to-day activities – forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies.

The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.

Purposive Interpretation of Rule 3B of the MTP Rules to include unmarried women, single women, or women without a partner under its ambit

The common thread running through each category of women mentioned in Rule 3B[1] is that the woman is in a unique and often difficult circumstance, with respect to her physical, mental, social, or financial state. It is important to note that Rule 3B does not enumerate all the potential changes that a woman’s material circumstances may undergo. It merely specifies some of the potential changes to a woman’s material circumstances. From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not the intention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.

“It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in.”

Rule 3B(c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. However, the expression “change of marital status” should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.”

“If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women.”

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT,2022 SCC OnLine SC 1321, decided on 29.09.2022]

*Judgment by: Dr. Justice DY Chandrachud

For Petitioner(s): Advocate Dr. Amit Mishra

For Respondent(s): ASG Aishwarya Bhati

[1] Rule 3B of the MTP Rules lists down the category of women eligible for termination of pregnancy up to twenty-four weeks.-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being imcompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

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One comment

  • Great Article….????
    Nice and Informative.
    Thanks for Sharing such an Amazing & Informative post.

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