The Supreme Court on Thursday removed the distinction between married and unmarried women in India’s abortion laws and, for the first time, accorded formal recognition to marital rape, though in the limited context of termination of pregnancy. The court ruled that unmarried women can undergo abortion up to 24 weeks of their pregnancy, bringing them on par with married women. Under the Medical Termination of Pregnancy Act, first enacted in 1971 and amended in 2021, all women can undergo abortion legally for up to 20 weeks, but single women were barred between 20 and 24 weeks, the limit allowed on account of mental anguish, rape and health complications, among others. That this arbitrary distinction — which stemmed from outdated social mores instead of women’s right to bodily autonomy — was consigned to history is an important moment.
The court rightly observed the 2021 amendment used the term “partner” instead of “husband” and, therefore, there was no legislative intent to exclude pregnancies outside marriage. The court was also correct in diagnosing that the marriage exception was creating misconceptions that termination of pregnancies of unmarried women was illegal, forcing many women to go to unregistered practitioners. The verdict, hopefully, will reverse this trend and expand access to safe services, especially for marginalised women.
Three aspects of the judgment merit notice. First, the court noted the existence of intimate partner violence and said married women can become pregnant as a result of their husbands raping them. Therefore, it was unfair that a married woman couldn’t access abortion till 24 weeks even though she had been sexually assaulted — by her husband. “The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations,” the court noted. At a time when proceedings to criminalise marital rape are ongoing, this is a significant observation. Second, the judges said the definition of a “woman” would include people who were not biologically identified as women at birth, thereby including transpersons. And third and most important, the court ruled that when it came to deciding abortion cases, significant reliance ought to be placed on a woman’s own estimation of whether she is in a position to continue her pregnancy. At a time when abortion rights across the world are under attack from conservatism and religious dogma, placing the onus of women’s bodily rights on women is a landmark step.
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