Need forward looking approach to abortion: Supreme Court
Divorcees, widows and some other categories of women are allowed termination of pregnancy up to 24 weeks on account of mental anguish and hardship.
Any discrimination between married and unmarried women in respect of their reproductive rights and bodily autonomy must go on the ground of manifest arbitrariness, observed the Supreme Court on Friday as it took a grim view of certain provisions in medical termination of pregnancy law in India that does not allow a single woman to go for abortion after 20 weeks.

Divorcees, widows and some other categories of women are allowed termination of pregnancy up to 24 weeks on account of mental anguish and hardship.
Setting about to scruntise pertinent provisions under the Medical Termination of Pregnancy (MTP) Act and its corresponding rules, a bench of justices Dhananjaya Y Chandrachud and JB Pardiwala emphasised that the approach has to be “forward looking” rather than restricting the expanse of a law that could be rooted in a discrimination based on the matrimonial status.
“Why should an unmarried woman be stopped from terminating her pregnancy up to 24 weeks when a married woman can be allowed to do so on the ground of mental anguish and other such reasons as provided in the law? The danger that can occur to an unmarried woman can very well be in the case of a married woman. There is no logical differentiation thus,” observed the bench.
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“Mental health is important. If we strike down certain words (from a relevant rule), the benefit of termination on the ground of mental anguish can be extended to above 20 weeks as well to the unmarried woman. Then rules will not be restrictive. That is one way to get around it. We have to consider if we strike down this clause being discriminatory and violative of bodily autonomy and reproductive rights of unmarried woman,” it added.
The court was hearing a petition of a 25-year-old single woman, whose plea for termination of her 24-week pregnancy was denied by the Delhi high court, which suggested her to rather give up the child for adoption. On July 21, the top court, however, allowed the woman to go ahead, provided a medical board certifies that there is no threat to her life from the abortion. On that day, the bench also decided to examine the scope of the MTP Act and the rules under the law that differentiates between married and unmarried women.
On Thursday, additional solicitor general Aishwarya Bhati, appearing for the Union health ministry, submitted that there were extensive discussions before drafting the law and the rules, which eventually kept the separated and single women out of the category in which abortion up to 24 weeks were allowed.
The ASG pointed out that while the law made no distinction between married and unmarried women for termination of pregnancy up to 20 weeks, certain categories of vulnerable women, such as rape survivors, minors and mentally infirm women, were included in the legal classification for abortion up to 24 weeks.
The bench, however, retorted the distinction may not have a nexus to the basic object which is sought to be achieved by Parliament, which amended the law in 2021 to replace the word “husband” with “partner” so as to bring within its fold situations outside marriages too.
“Legislature has not used the word ‘husband’, but it has used the word ‘partner’. So, it takes into account concerns outside marriage as well. Therefore, can an unmarried girl who suffers an unwanted pregnancy should she be excluded from abortion at 24 weeks when a married woman is allowed this on reasons such as ongoing divorce proceedings or widowhood?” the court asked Bhati.
The law officer, on her part, sought some time to bring on records certain documents to demonstrate what weighed with the experts while carving out the clause regarding abortion up to 24 weeks.
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“This case caused me grave amount of intellectual anguish and now we think how to craft the judgment as it has to speak intellectually...You have to move ahead as there is so much development around this subject. You just have a forward-looking interpretation,” said the bench, while fixing the matter for a detailed hearing on August 10.
In its July 21 order, the court criticised the Delhi high court for taking an “unduly restrictive” view in denying the woman the right to abort.
“There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women. A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution. She has a sacrosanct right to bodily integrity,” underlined the bench.
Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom, the court had added in the previous order, allowing the woman to terminate her pregnancy of 24 weeks if the medical opinion finds it safe.
Citing section 3B(c) of the 2003 MTP Rules, which allows women who undergo “change of marital status during the ongoing pregnancy” by way of widowhood or divorce to undergo termination of pregnancy, the top court held that the expression “change in marital status” should be given a purposeful interpretation to bring within its fold situations involving single women too.
