'Abortion Can't Be Denied Because Woman Is Unmarried' : Supreme Court Allows Unmarried Woman To Seek Termination Of Pregnancy

The bench was considering the petition filed by a 25 year old unmarried woman seeking termination of her pregnancy of 24 weeks which had arisen out of a consensual relationship against Delhi High Court's order of refusing to grant her the said relief.

The High Court had observed that unmarried 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 Supreme Court was however of the view that the High Court has taken an "unduly restrictive view" inasmuch as Rule 3(b) speaks of "change in marital status" of woman, followed by expressions widowhood or divorce. It held that expression "change in marital status" must be given a "purposive interpretation".

That apart, the Supreme Court said that courts cannot be unmindful of the legislative intent behind the amendment to Explanation 1 to Section 3 of the Medical Termination of Pregnancy Act, which expressly contemplates unwanted pregnancy by failure of method or device used by woman or her "partner" to prevent pregnancy.

"The use of words "woman or her partner" shows an intention to cover unmarried woman which is in consonance with Article 14 of the Constitution."

The Supreme Court has issued the following directions:

-AIIMS Delhi Director to constitute a medical board in terms of provisions of Section 3(2)(d) MTP Act during the course of July 22.

-In the event the Medical Board concludes that the foetus can be aborted without any danger to life of petitioner, the AIIMS shall carry out the abortion in terms of the petition. The report shall be furnished to the court after completion of procedure.

The Court has issued notice to the Union Government and has sought the assistance of Additional Solicitor General Aishwarya Bhati on the legislative interpretation.

The Petitioner told the Supreme Court that is eldest among 5 siblings and her parents are agriculturists. She further submitted that in the absence of a source of livelihood, she will be unable to raise and nurture the child.

What the Delhi High Court held?

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad on July 16, 2022 while refusing to grant her the permission for abortion had observed thus:

"As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself."

Before the High Court, the counsel appearing for the Petitioner had argued that Rule 3B of the Medical Termination of Pregnancy Rules, 2003 was violative of Article 14 of the Constitution of India, 1950, inasmuch as it excluded an unmarried woman.

On this, the Court said thus:

"Whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court."

The Court noted that sec. 3(2) (a) of the Medical Termination of Pregnancy Act provides that the Medical Practitioner can terminate the pregnancy, provided, the pregnancy does not exceed 20 weeks.

"Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks," the Court noted further.

Case Title : X vs The Principal Secretary, Health & Family Welfare Department

Citation : 2022 LiveLaw (SC) 621

Headnotes

Medical Termination of Pregnancy Act 1971 - Supreme Court passes ad-interim order allowing unmarried woman to terminate pregnancy of 24-week term arising out of a consensual relationship - Prima facie observes the case is covered under Section 3(2)(b).

Medical Termination of Pregnancy Act 1971 - Effect of 2021 amendment- Parliamentary intent to cover unmarried woman too-After 2021 amendment, the word "married woman" has been substituted with "any woman" and "husband" with "partner"-The Parliamentary intent, therefore, is clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship [ Para 16 & 18]

Medical Termination of Pregnancy Act 1971 - Gap in the law exists between MTP Act and MTP Rules -Evidently, there is a gap in the law : while Section 3 travels beyond conventional relationships based on marriage, Rule 3B of the MTP Rules does not envisage a situation involving unmarried women, but recognizes other categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape [Para 18]

Medical Termination of Pregnancy Act 1971 - 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 -Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom-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. [Para 18,20, 21]

Constitution of India - Article 21- 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 [ Para 19]

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