In a landmark judgment, the Supreme Court on Thursday ruled that all women, including the unmarried ones, are entitled to safe and legal abortion, thus upholding the right of a woman for an abortion up to 24 weeks into the pregnancy regardless of the marital status.

Declaring that the meaning of rape would include marital rape, solely for the purpose of the Medical Termination of Pregnancy Act, a bench led by Justice D Y Chandrachud said the state has a positive obligation under Article 21 of the Constitution to protect the right to health and particularly reproductive health of individuals.

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, it added.

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“Married women may also form part of the class of survivors of sexual assault or rape. We would be remiss in not recognising that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one,” the apex court stated.

In the context of abortion, it said that the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. “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,” the bench said, adding that 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,” it added.

The judges also held that to avail the benefit of Rule 3B(a) for abortions between 20 and 24 weeks, the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. It has also done away with the requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act.

Acting on a plea of an unmarried woman from Manipur who was denied abortion of foetus out of a consensual relationship, the apex court dealt with various aspects of the issue, including forced pregnancy suffered during the abusive relationship. The 25-year-old woman had appealed against the Delhi high court’s July 16 order declining her request to terminate her 24-week foetus, under Rule 3B, dealing with categories of women entitled to abortion, of the 2003 Rules.

On July 21, the SC 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.

The decision is widely hailed by women’s rights activists, terming it as a “progressive step.”