Supreme Court Explores Ways To Interpret MTP Rules To Recognize Unmarried Woman's Right To Abortion; Reserves Judgment

As the Supreme Court was exploring ways to extend the benefit of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (Act), to unmarried women so that they can also seek termination of pregnancy which exceeds the period of 20 weeks but not 24 weeks, Additional Solicitor General, Ms. Aishwarya Bhati, on Tuesday, beseeched it to intervene in the Medical Termination of Pregnancy Rules rather than the Act. She was of the opinion that it might be more effective to interpret the Rules as the distinction between married and unmarried women is made in the Rules and not the Act. Considering her suggestion, a Bench comprising Justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala indicated that Rule 3B(b) of MTP Rules can be interpreted in a manner so as to include both married and unmarried women who have suffered abandonment. "We can interpret Rule 3B(c) in such a manner that the change of marital status should be a broad category which would include a married woman who has been abandoned and an unmarried woman who has suffered abandonment." Rule 3B categorises women who are eligible for termination of pregnancy up to 24 weeks as under - (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)]; (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government. Clause (c) envisages that a woman whose marital status has changed during the course of her pregnancy due to widowhood or divorce would be entitled to abort pregnancy up to 24 weeks. The Bench was of the view that the words 'widowhood and divorced' in Clause (c) can be interpreted to be illustrative and not exhaustive. The existing anomaly in the provision was pointed out by Justice Pardiwala, who noted that if clause (c) is given a strict interpretation it would even exclude married women who have been abandoned by their partners. In other words the benefit of the provision would only enure to married women who have been widowed and divorced during the course of their pregnancy. Justice Chandrachud reckoned that it might not be justified to ask a woman who has been deserted by their partner to undergo a full term pregnancy merely because she is not technically divorced or widowed. Accordingly, it was suggested - "If (c) is interpreted to cover such a case then the issue is if we extend it a wee bit more saying change in marital status would also apply to an unmarried woman, who was in a relationship in the nature of marriage, in a regular relationship." He added - "A woman who has been abandoned; that state can apply to both married and unmarried women." Agreeing to the proposed interpretation, ASG submitted that in the Indian context, unmarried women in live-in relationships would be more vulnerable, because they might not even have their family or their partner's family to fall back on. Justice Chandrachud enunciated that Rule 3B(c) intended to extend the benefit of aborting pregnancy up to 24 weeks for women who have lost the support of their partners. He was of the opinion that the same logic can be extended to abandoned women, irrespective of their marital status. Taking the Bench through the scheme of the Act of 1971, ASG stated that prior to its enactment, under the Indian Penal Code, termination of pregnancy was enumerated as an offence and the pregnant mother and the medical practitioners could be booked under the IPC for terminating pregnancy or attempting to terminate it. Justice Chandrachud noted that the purpose of enacting the 1971 Act was to ensure access to safe abortion. "The purpose of the Act is that woman should have access to safe abortions. Otherwise they would go for unhealthy techniques for aborting." Ms. Bhati highlighted the three categories for whom termination of pregnancy was contemplated by the statute - Where length of pregnancy does not exceed 20 weeks, (Before 2021 Amendment it was 12 weeks)Where length of pregnancy 20 weeks but not 24 weeks (Before 2021 Amendment it was 12-20 weeks)Length of pregnancy is immaterial when the condition is such that a termination is necessitated by the diagnosis of substantial foetal abnormalities diagnosed by a medical board. Considering the language in the 1971 Act, which uses the word 'partner' instead of 'husband', Justice Chandrachud reckoned that the legislature could not have intended to ...

Supreme Court Explores Ways To Interpret MTP Rules To Recognize Unmarried Woman's Right To Abortion; Reserves Judgment

Sohini Chowdhury

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