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Right To Equality: Does The Court Treat The Right To Abortions Of Married And Unmarried Women Equally

"A woman is said to have over ten pairs of hands, the roles she plays throughout life are indistinguishable. Born as a daughter, raised to be a friend, weds to be a wife, births to become the mother, and so on."

Every so often these social roles become so rigid that when a woman who wants to prioritize herself to the countless foreseeable difficulties, becomes the victim to social stigmas and criticism. Similar, was the case presented before the honorable Supreme Court of that of a 25-year-old woman hailing from Manipur, seeking termination of her pregnancy over the 20-week limit. In June 2022, a woman who was recently in a live-in relationship came to Supreme Court with a plea to terminate her pregnancy as she was abandoned by her partner[1].

Her plea had already been rejected by the Delhi High Court (on July 15,2022) on two main grounds; primarily the said woman was unmarried and in a consensual relationship, secondly, the woman was over 20 weeks pregnant at that time[2].

The decision was based on the Court's interpretation of the amended provisions of the MTP (Medical Termination of Pregnancy) Act and Rules that came into effect the year before. Even though the live-in relationship was decriminalized in Indra Sarma vs V.K.V. Sarma (2013) 15 SCC 755 case, the judgment was biased because this form of relationship was socially unacceptable.

The case was then brought up to the Supreme Court under the supervision of the Bench of Honorable Justice Dhananjay Y. Chandrachud, Justice Surya Kant, and Justice A. S. Bopanna, in which the following issues were raised; the woman was dealing with the social stigma of an unmarried pregnant woman and also, she was struggling with mental and financial constraints.

Going back to the begging of the rights of termination of pregnancy, in India, the right to abortion has not been explicitly mentioned, but under Article 21 of the Indian constitution; the right to life includes the right to live in the dignity which is inclusive of the women's reproductive rights which include; right to become pregnant, bear a child, to have an abortion, to use or not to use contraceptives, etc. It was also specially mentioned that "A mother's right to preserve her health is superior to that of the right of an unborn child."

Accordingly, the Medical Termination of Pregnancy Act was passed in the year 1971, to decriminalize abortions mentioned in Section 312 of the Indian Penal Code,1860, and to have legal and safe abortions in public hospitals. But the scope of the MPT Act, 1971 included the following conditions for termination of pregnancy after 20 weeks (only for married women except in case of rape); if the pregnancy imposed a substantial threat to a woman's life and cause physical and mental damage if the expected child would face a threat to life or would be physically or mentally handicapped if the pregnancy was due to rape or was a result of a failed contraceptive[3].

Also, the MPT Act expressly states that the consent of the woman is required for abortion as cited in the landmark case of Suchita Srivastava v. Chandigarh Administration (2009), in which the court held that mentally challenged persons have a right to choose to continue the pregnancy.

"Right to reproduce a facet of right to life and liberty article 21 of the Indian Constitution" a division bench of the Kerala High Court observed in an order passed in 2020, allowing the termination of a 24-week pregnancy of a 14-year-old rape survivor[4].

Amendment was made in 2021 (which came into force on September 24, 2021), which led to undertaking the abortion from 20 weeks to 24 weeks for pregnant in the above-mentioned conditions, and also, unmarried women could terminate their pregnancy based on the failure of contraceptives. In December 2021, the Karnataka High Court ordered to allow termination of pregnancy of rape survivors even above the 24-week limit set by the 2021 amendment, based on extraordinary situations.

In January 2022, Calcutta High Court allowed the termination of 35-week pregnancy on the grounds of severe abnormalities. The Uttarakhand High Court even allowed termination of 28-week pregnancy in case of rape victims.

Taking all this into consideration and also the specific gap in Rule 3B(c) of MPT rules, 2003 which allows women who change their marital status during the pregnancy (widow or divorced) could undergo termination of the pregnancy up to 24 weeks.

They stated that "inferred from this case where a married woman is neither divorced nor deserted but simply was cast away (abandoned), would the law mean that just because she was not divorced nor widowed, she cannot have the right to terminate her pregnancy?"[5]

The court also stated that a woman being deserted faces foreseeable difficulties and such a situation would apply to both married and unmarried women equally. Hence, on July 21, 2022, the woman was allowed to abort at Delhi's AIIMS hospital.

This proves that India stepped a foot forward towards the better functioning of equality as mentioned in Article 14 of the Indian Constitution and also paved the way by encouraging women to fight for their rights and to demand justice. This not only leads to their personal development but also social development which is the goal of each citizen of India.

References:
  1. Abraham Thomas, 'SC opposes different abortion limits for unmarried women', (Hindustan Times), (August 24,2022), pg.10
  2. Shreya Shree, 'Access to abortion; where women still don't have a say'(2022), (8047945) The Indian Express, pg.3, https://indianexpress.com/article/opinion/columns/access-to-abortion-women-right-roe-v-wade-8047945/, accessed 24 August,2022
  3. Majlis Legal Centre, 'Rights; A comprehensive guide to women's legal rights', pg.45,46, https://www.iitk.ac.in/wc/data/Majlis_Legal-rights-of-women.pdf
  4. Sagar K Mazumdar, 'The history of abortion rights in India and the US', (Dristi IAS), (7 July,2022), https://www.drishtiias.com/blog/the%20history%20of%20abortion%20rights%20in%20india%20and%20the%20us, accessed 20 August, 2022
  5. Abraham Thomas, 'SC opposes different abortion limits for unmarried women', (Hindustan Times), (August 24,2022), pg.10

Written By: Pranavi Challa

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