What did the Supreme Court say on abortion, marital rape, and 'persons other than cis-women'?

The top court said that the provision to cover only married women will render the Medical Termination of Pregnancy Act violative of Article 14; here are other key points from its important ruling.

Published: 29th September 2022 07:40 PM  |   Last Updated: 01st October 2022 12:35 AM   |  A+A-


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In a landmark ruling on the reproductive rights of women, the Supreme Court held on Thursday that all women are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act, and making any distinction on the basis of their marital status is "constitutionally unsustainable".

"The marital status of a woman can't be ground to deprive her right to abort unwanted pregnancy," the top court said while pronouncing its judgement.

"The decision to carry a pregnancy to full term or to abort it lies in the reproductive autonomy of a woman, which is rooted in bodily autonomy. Depriving her of this right will be an affront to a woman's right to dignity," the bench held in its ruling.

The bench had also said that marital rape has to be considered as falling within the meaning of 'rape' for the purpose of the Medical Termination of Pregnancy (MTP) Act and rules and in order to save women from forceful pregnancy. "Any other interpretation (of rape) would have the effect of compelling a woman to give brith to and raise a child with a partner who inflicts mental and physical harm upon her," it said.

The judgement incidentally coincided with safe abortion day which is marked on September 28 every year, a fact Justice Chandrachud said he did not know about when informed, as reported by Livelaw.

On August 23, the Supreme Court had said it would interpret the MTP Act and the rules to eliminate the discrimination between married and unmarried women for allowing abortion till 24 weeks of pregnancy.

The bench headed by Justice DY Chandrachud also included Justices AS Bopanna and JB Pardiwala.

Here are important points from the judgement:

The verdict: "The 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 rights of reproductive autonomy give similar rights to unmarried women as that to married women."

1. On marital rape: 

Married women, who conceived out of forced sex by their husbands, will come within the ambit of "survivors of sexual assault or rape or incest" mentioned in Rule 3B(a) of the Medical Termination of Pregnancy Rules.

"Married women may also form the part of the class of survivors of sexual assault or rape. The ordinary meaning of the word rape is sexual intercourse with a person without consent or against their will. Regardless of whether such forced intercourse occurs in the context of matrimony, a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. Any pregnancy alleged to be caused by force by a pregnant woman is rape."

Though the apex court is yet to adjudicate the marital rape issue, the comments from the bench on marital rape for the purpose of unwanted pregnancy may pave the way for later judgment on the issue. 

2. More on marital rape:

"It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them. 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. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors."

ALSO READ | Marital rape: SC to hear pleas on Delhi HC’s split verdict in February 2023

2. On intimate partner violence:

"We would be remiss in not recognising that intimate partner violence is the 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. Sex and gender-based violence in all its form in the context of the family have long formed a part of the lived experiences of women."

3, On reproductive autonomy:

"The right to reproductive autonomy is closely linked with the right to bodily autonomy. As the term itself suggests, bodily autonomy is the right to take decisions about one’s body. 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."

4. Legal recourse to prove rape not necessary:

"In order to avail the benefit of Rule 3B(a) of the MTP Act, the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest... Further, there is no 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."

5. Usage of the term 'women' applies not just to cis-women:

Bar and Bench reported that the judgment uses the term "all persons" (and not just women) consistently. 

The usage of the term 'women' also includes those of other gender identities who have the reproductive system and needs of the female sex, for the purpose of the MTP Act and the instant judgment, the bench was quoted as saying by Bar and Bench.

An excerpt from the judgement on the same: "Before we embark upon a discussion on the law and its application, it must be mentioned that we use 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."

6. On safe sex education:

"The state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and RMPs (registered medical practitioners) must be present in each district and must be affordable to all."


On July 21, the top court had expanded the scope of the MTP Act to include unmarried women and allowed a 25-year-old to abort her 24-week pregnancy arising out of a consensual relationship provided a medical board concluded that it will not harm her.

Earlier, the apex court had questioned if a married woman is allowed to terminate up to 24 weeks of pregnancy under the MTP Act and Rules framed under it, why to deny the same to unmarried women, even though the risk is the same for both.

  • "A woman's right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution and she has a sacrosanct right to bodily integrity," it had said.
  • "Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. Live-in relationships have been recognised by this Court," it had added.
  • The bench had also said that the provisions of the abortion law now include the word "partner" instead of "husband". This shows that Parliament did not want to confine a situation of abortion to only a matrimonial relationship, it said.

The woman had approached the apex court after the Delhi High Court declined to grant permission to abort her pregnancy which had arisen out of a consensual sexual relationship, saying that it virtually amounts to killing the foetus.

SC's remarks on 'family'

Familial relationships may take the form of domestic, unmarried partnerships or queer relationships", the Supreme Court had observed on August 28 this year, while noting that an ''atypical" manifestation of a family unit is as real as its traditional counterpart and deserves protection under the law.

The apex court made the remarks in its verdict that held that a working woman cannot be denied her statutory right to maternity leave for her biological child only because her husband has two children from a previous marriage and she had availed the leave to take care of one of them.

READ HERE | Marital rape still not an offence say activists post SC's abortion ruling

(With inputs from PTI)

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