The Apex Court’s latest ruling: All women entitled to safe and legal abortion

The Apex Court’s latest ruling: All women entitled to safe and legal abortion

The Honourable Supreme Court of India clearly states in the judgement passed on 29th September, 2022 that the unmarried woman is also entitled to safe and legal abortion same as married woman. The matter came into highlight when a 25 year old lady approached the top court for the termination of her pregnancy after High Court’s denial order as the Court contended that she is not falling in the preview of rule 3B of the Medical Termination of Pregnancy Rules,2003 hence the permission cannot be granted.

What does the rule 3 B of the Medical Termination of Pregnancy Rules, 2003 says?

The legal language of Rule 3 B of the Rules is reproduced below:-

3B. Women eligible for termination of pregnancy up to twenty-four weeks. – The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely: –

(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 incompatible 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.]

The phrase “Married Women or her husband” in Medical Termination of Pregnancy Act, 1971 is substituted by the phrase “any women or her partner” in   Medical Termination of Pregnancy Rules, 2013 clearly sates the intention of legislature to bring pregnancies outside the ambit of marriage.

The Hon’ble Supreme Court’s order by Justice D.Y Chandrachud, Justice A.S Bopanna, and Justice Pardiwala in its latest verdict gives interpretation on the above stated rule and said that the differentiation between married and unmarried women is unconstitutional and artificial in nature and gave an invalid and perpetuates the label that only married women are sexually active.

The Court stated the fact that making reproductive choice is the right of every woman irrespective of she is married or unmarried without the interference of Court.

Moreover the Apex Court also concluded in its judgement that rape includes marital rape within the purview of Medical Termination of Pregnancy Rules, 2003 only as it shakes the mental health of pregnant women in the time period of pregnancy.

What is the effect of the latest judgement?

The top court’s interpretation of Rule 3 B clarifies the meaning of the stated law and also recognised the law for unmarried women regarding the abortions in India.

As the circumstances vary from case to case the Court finds that it is the decision of medical practitioner that who falls in the category of above stated rules and if the woman is not satisfied she can approach the court.

Incidentally, the major judgement regarding the medical termination of pregnancy is delivered on World Safe Abortion Day. The judgement will make drastic change in the society as it will reduce the taboo of abortion of unmarried woman in the society and help them in living a dignified life. The inclusion of marital rape in the preview of the Medical Termination Act will protect the mental and physical health of the women facing forced physical relations in the marriage.

-Surbhi Singla

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali