Summary: Supreme Court Breaks Down Social Stigmas on Abortion


On 29th September 2022, The Honourable Supreme Court recognized the Right of reproductive autonomy of an unmarried woman under Article 21 and Article 14 in a decision by Justice DY Chandrachud under a Civil appeal raised out of a decision by the High Court of Delhi.

The appeal was made on a decision by the High Court of Delhi which stated unmarried women cannot avail the benefits of Section 3(2) of The Medical Termination of Pregnancy act (MTP act) and Rule 3B of the Medical Termination of Pregnancy rules (MTP rules).

On the 21st of July, the Honourable Supreme court issued an interim order allowing for the abortion of the fetus Petitioner/Appellant. Following that the Honourable Supreme court did an analysis regarding the interpretation of Rule 3B of the MTP rules which reads as:

“3-B. 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 sub-section (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 a 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.”.

After considering the object of section 3(2)(b) of the MTP act read with Rule 3B of MTP rules the Honourable court said that the change in the marital status of a married woman and change in marital circumstances of an unmarried or single woman could not be treated differently for the purpose of the MTP act. Such a narrow interpretation of Rule 3B differentiating the same would constitute a violation of Article 14 of the Constitution of India.

The Honourable court further added “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.”

In addition, the court emphasized that the Rights of reproductive autonomy, dignity and privacy under Article 21 of the Constitution does not change based on the marital status of women.

This decision further extends the ambit of Article 21 and Article 14 of the Constitution of India as well as breaks down various social constraints laid upon women in our society.

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Adv Amith K S- Research Team, Lex Erudites
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