In a significant judgment, the Supreme Court on Thursday held that provisions in Medical Termination of Pregnancy Act (MTP Act) allowing termination pregnancy beyond 20 weeks and upto 24 weeks cannot be denied to a woman merely because she is unmarried [X Versus The Principal Secretary Health and Family Welfare Department, Delhi NCT Government and anr].
A Bench of Justices DY Chandrachud, AS Bopanna, and JB Pardiwala held that Rule 3B(c) of the MTP Rules cannot be interpreted in a restrictive manner so as to deny right of abortion to unmarried woman beyond 20 weeks and doing so would be violative of Article 14 of the Constitution.
“If Rule 3B(c) was to be interpreted that it applies to married woman it would mean that unmarried does not involve in sex. Thus the artificial distinction between married and unmarried woman cannot be sustained,” the Court said.
Thus, even unmarried women who become pregnant from consensual sexual relationships are entitled to terminate pregnancy upto 24 weeks, the bench held.
As per the MTP Rules, only survivors of rape, minors, women whose marital status changed during pregnancy, mentally-ill women, or women with foetal malformation are allowed to terminate pregnancy upto 24 weeks.
In cases of pregnancy due to consensual sexual relationship, termination of pregnancy is allowed only upto 20 weeks as per the Act and Rules.
The top court, however, held that such distinction will be violative of right to equality under Article 14 of the Constitution.
“Object of Section 3(2)(b) of MTP act allowing woman to undergo abortion after 20-24 weeks..including only married and excluding unmarried woman will be violative of Article 14,” the Court said.
Law cannot create such artificial classification based on such narrow grounds of marital status, the Court underscored.
“State must ensure reproduction and safe sex is disseminated to all segments of public to avoid unwanted pregnancies…The impact of continuing unwanted pregnancy on a woman has to take into account the social realities,” the Court said.
Further, the bench held that reproductive autonomy is closely linked to bodily autonomy and consequences of unwanted pregnancy on a woman cannot be undermined.
The present case arose from a July order in which the Supreme Court had allowed an unmarried woman, who became pregnant due to consensual sex, to abort her 24-week-old foetus.
The appellant, hailing from Manipur and currently residing in Delhi, had moved the Delhi High Court after she came to know about her pregnancy.
The High Court had refused relief to the woman, holding that an unmarried woman who is carrying a child out of a consensual sexual relationship cannot be permitted to terminate pregnancy older than 20 weeks.
The High Court had said that Section 3(2)(b) of the Act is not applicable to the facts of this case since an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered in cases beyond 20 weeks which is the outer limit laid down by the Medical Termination of Pregnancy Act (MTP Act) and the MTP Rules for termination of pregnancy arising from consensual sexual relationships.
As per the MTP Rules, only survivors of rape, minors, women whose marital status changed during pregnancy, mentally-ill women, or women with foetal malformation are allowed to terminate pregnancy upto 24 weeks.
The woman then moved the Supreme Court in appeal.
The Supreme Court, on July 21, overturned the decision of the Delhi High Court, which had declined to permit the abortion.
The top court in its July order said that the law has to be given a broad interpretation and the intention of the parliament should be examined.
In this regard, the Court noted that the Amendment Act of 2021 had inserted an explanation to the Section 3(2)(a) of MTP Act which uses the words ‘woman or her partner’ instead of ‘husband’.
The Court read this along with clause (c) of Rule 3B which allows termination of pregnancy in case of change in marital status. The clause has words ‘widowhood’ and ‘divorce’ in brackets.
It, therefore, said that allowing the petitioner to suffer an unwanted pregnancy will go against the parliamentary intent and it cannot be denied to her only on the basis of her being unmarried and being married or unmarried has no nexus to the object sought to be achieved.
The Court, therefore, directed the Director of All India Institute of Medical Sciences (AIIMS) to form a medical board in terms of provisions Section 3 of MTP Act to decide on termination of pregnancy of the appellant.
The Supreme Court while allowing the plea observed that the High Court took an unduly restrictive view in interpreting the MTP Act and Rules.
After allowing the abortion the Court proceeded to hold further hearing on the scope of MTP Act and Rules.
It asked Additional Solicitor General (ASG) Aishwarya Bhati to assist it on the interpretative aspects of Section 3(2)(b) of the Medical Termination of Pregnancy Act and Rule 3B of the Medical Termination of Pregnancy Rules.
The Bench during the hearing had stated in its oral observations stated that it could only strike down clauses and not introduce words into a statute.
“But why should we not say, that between 20-24 weeks all woman are equally circumstanced by the anguish of an unwanted pregnancy? Legislature has put upper cap of 24 weeks, why the distinction? Why restrict it based on a woman’s status?” Justice Chandrachud had remarked.
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