SCO Daily: Abortion Laws and the Fundamental Right to Divorce

Today, a day after International Safe Abortion Day, the Supreme Court took a monumental step towards securing reproductive rights in India. 

A Bench led by Justice Chandrachud delivered a Judgment which held that the difference between married and unmarried women in the Medical Termination of Pregnancy Act is ‘artificial’. Unmarried women now have the same right to exercise their bodily autonomy and undergo abortion procedures after 20 to 24 weeks since conception, even if the pregnancy arises out of a consensual relationship. 

The Act also provides specific circumstances where a pregnancy can be terminated after 20 to 24 weeks. One of these circumstances is when a woman becomes pregnant as a result of sexual assault or rape. The Judgment held that this includes victims of marital rape. For the purposes of abortion, rape now includes non-consensual intercourse that takes place within a marriage. Even though the challenge to the marital rape exception in the Indian Penal Code is still pending at the Supreme Court, the Judgment states that there is no need for a conviction to prove the rape allegation. The claim itself is sufficient to justify receiving an abortion. 

Constitution Bench activity continued today as well. The Bench led by Justice Sanjay Kishan Kaul continued hearings to decide whether the Supreme Court can grant divorce to parties who directly approach them without a lower court deciding the matter first. 

Senior Advocate Indira Jaising argued that all persons have the fundamental right to marry. As a consequence, all persons must also have the fundamental right to divorce. If a marriage has broken down and the parties approaching the Supreme Court cannot go through with their court-ordered reconciliation, the Supreme Court must grant divorce. She referred to past SC Judgments and International Law to argue that divorce should be seen as a solution to a difficult situation and Courts must start recognising the idea of a no-fault divorce.

On the other hand, Senior Advocate Dushyant Dave warned the Bench that they would be opening a Pandora’s Box by usurping the family court’s jurisdiction to hear matrimonial disputes. According to him, delays in these disputes are unfortunate but that does not justify direct interference by the Supreme Court as there are many kinds of cases that require speedy justice but deal with delays nonetheless. 

Another Constitution Bench, the fifth this month, assembled for the first time today. In the next four months, this Bench is expected to hear 6 cases. It will begin with the criteria for Election Commission appointments, the right to die, and the practice of Jallikattu in November. The Bench will address an arbitration question in December. In January, the Bench will examine Whatsapp’s privacy policy and potentially lay down guidelines to protect the right to privacy of social media users in India. 

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