The Supreme Court on Thursday said live-in relationships have been recognised by it and denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.

Noting said statutes have recognised the reproductive choice of a woman and her bodily integrity and autonomy and both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child, it said while allowing the examination of a 24-week pregnant unmarried woman by an AIIMS medical board to determine whether the pregnancy can be safely terminated without endangering her life.

A bench, headed by Justice D.Y. Chandrachud and comprising Justices Surya Kant and A.S. Bopanna, said: “A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity.

“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.”

The bench said letting an unmarried woman suffer an unwanted pregnancy will be contrary to the object and spirit of the Medical Termination of Pregnancy (MTP) Act.

The bench said that the Parliament, by amending the MTP Act through Act 8 of 2021, intended to include unmarried women and single women within the ambit of the Act. This is evident from the replacement of the word ‘husband’ with ‘partner’ in explanation I of Section 3(2) of the Act, it added.

“Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman,” it said.

The bench said the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act.

As the petitioner had moved the Delhi High Court before she had completed 24 weeks of pregnancy, the bench said the delay in the judicial process cannot work to her prejudice.

The top court asked the AIIMS, Delhi, Director to constitute a medical board in terms of the provisions of Section 3(2D) of the Act.

“In the event that the medical board concludes that the foetus can be aborted without danger to the life of the petitioner, a team of doctors at the AIIMS shall carry out the abortion in terms of the request which has been made before the High Court,” it said.

Citing the MTP amendment 2021, the bench said the parliamentary intent is clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship. “On the contrary, a reference to the expression ‘any woman or her partner’ would indicate that a broad meaning and intent has been intended to be ascribed by Parliament. The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy,” it added.

The bench observed that both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child. “In recognising the right, the legislature has not intended to make a distinction between a married and unmarried woman, in her ability to make a decision on whether or not to bear the child,” it said.

The bench said prima facie, quite apart from the issue of constitutionality which has been addressed before the high court, it appears that it has taken an unduly restrictive view of the provisions of clause (c) of Rule 3B. “Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words ‘widowhood and divorce’. The expression ‘change of marital status’ should be given a purposive rather than a restrictive interpretation. The expressions ‘widowhood and divorce’ need not be construed to be exhaustive of the category which precedes it,” it said.

On July 16, the Delhi High Court, while refusing to entertain a plea seeking termination of a 23-week pregnancy, observed that the petitioner, a 25-year-old unmarried Manipuri woman, whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003. The woman stated in her plea that she cannot give birth to the child as she is an unmarried woman and her partner has refused to marry her.

It further stated that giving birth out of wedlock will entail in her ostracisation and cause her mental agony. As she is solely a B.A. graduate who is non-working, she will not be able to raise and handle the child, the woman submitted in her petition, stating that she is not mentally prepared to be a mother and continuing with the pregnancy will lead to grave physical and mental injury for her.

The woman moved the top court, which entertained her plea, challenging this high court order.