On July 21, 2022, the Supreme court (SC) allowed an unmarried woman to abort her pregnancy of 24-weeks overturning the order of the Delhi High Court. A bench of Justices, DY Chandrachud, Surya Kant, and AS Bopanna said that a woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution. They further stated that the woman has a sacrosanct right to bodily integrity. The order is significant because it fills in a legislative gap in the Medical Termination of Pregnancy (MTP) Act on an unmarried woman’s right to terminate a 20- to 24-week pregnancy arising out of a consensual relationship.
Delhi High Court Judgement
In July 2022, a 25-year-old unmarried woman approached the Delhi High Court seeking permission to terminate pregnancy. The petitioner learnt that she was 22-weeks pregnant and informed her live-in partner about her pregnancy. Her partner refused to get married and deserted her. She had no other option but to consider terminating the pregnancy. The Delhi High Court, however, refused permission, citing her ‘marital status’ as a reason.
A division bench comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, on July 16, 2022, while refusing to grant her the permission for abortion, stated that, “as of today, Rule 3B of the MTP Rules, 2003, stands, and the High Court, while exercising its power under Article 226 of the Constitution of India, 1950, could not go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself”.
The counsel appearing for the petitioner argued before the high court that Rule 3B of the MTP Rules, 2003 was violative of Article 14 of the Constitution of India, 1950 in as much as it excluded an unmarried woman.
To this, the high court responded by stating that “whether such rule is valid or not could 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 high court noted that Section 3(2) (a) of the MTP Act provides that a medical practitioner could terminate the pregnancy only if the gestation has not exceeded 20 weeks. Section 3(2) (b) of the act provides for termination in certain circumstances when the pregnancy exceeds 20 weeks but does not exceed 24 weeks.
The petitioner then approached the Supreme Court.
Supreme Court Judgement
The Supreme Court bench observed that the Delhi High Court took an ‘unduly restrictive’ view of the provisions of the Medical Termination of Pregnancy Rules while declining the woman interim relief in as much as rule 3(B) speaks of ‘change in marital status’ of woman, followed by expressions widowhood or divorce. It observed that expression ‘change in marital status’ must be given a ‘purposive interpretation?
The apex court said that provisions under the MTP Act cannot be denied to the petitioner merely because of her being unmarried. Making her suffer the effects of an unwanted pregnancy would be against the very purpose of the law enacted by Parliament. The court further made it clear that the amendment done to the MTP Act in 2021 was intended to include unmarried and single woman within the scope of the act. The amendment replaced the words ‘married woman’ with ‘any woman’ and ‘husband’ with ‘partner’ in the provisions. So, the parliamentary aim is not to restrict the beneficial provisions of the MTP Act only to a matrimonial relationship.
In fact, the use of words ‘woman or her partner’ shows an intention to cover unmarried women, which is in consonance with the Article 14 of the Constitution.
The Supreme Court has issued the following directions in the case:
- The Director of AIIMS Delhi to constitute a medical board in terms of provisions of Section 3 (2)(d) MTP Act, during the course of July 2022.
- In the event that the Medical Board concludes that the foetus could 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 the procedure.
- The Supreme Court also issued notice to the central government and sought the assistance of additional solicitor general on the legislative interpretation.
Earlier Judgments
Right to reproductive choices: In August 2009, in Suchita Srivastava & Anr vs Chandigarh Administration, the Supreme Court ruled that a woman has the right to go ahead with her pregnancy even though the authorities believed that she should terminate the pregnancy. A moderately mentally disabled woman became pregnant after she was allegedly raped while she was at a government-run welfare institution in Chandigarh. After the discovery of her pregnancy, the city administration approached the Punjab & Haryana High Court, seeking approval for termination of her pregnancy as the survivor was not only mentally unstable, but also an orphan. The woman, however, said she wanted to go ahead with the pregnancy, but the high court ruled against her, saying that it was in her best interest to terminate the pregnancy. The high court order was challenged by the Chandigarh administration, and the Supreme Court allowed the woman to bear the child as it is a woman’s right to reproductive choice and that it is an inseparable part of her personal liberty under Article 21 of the Constitution. The Court instructed that the best medical facilities be made available to her.
Right to privacy: In August 2017, a nine-judge bench of the Supreme Court recognised the right to privacy as a fundamental right, and also recognised the decision of a woman to procreate or abstain from procreating as a facet of her right to lead a life with dignity under Article 21 of the Constitution.
Premarital sex is not illegal: In a judgement in July 2006, the Supreme Court recognised relationships beyond the social institution called marriage, and stated that an adult woman was free to marry anyone she likes or live with anyone she likes (except in an adulterous relationship—that was struck down only in 2017). Another Supreme Court bench of three judges, in April 2010, added that criminal law should not be weaponised to interfere with the domain of personal autonomy.
Amendments in MTP Act 1971 in 2021:
The MTP Act, 1971, allows termination of pregnancy for all women in the first 20 weeks on the opinion of a registered medical practitioner. The act was amended in 2021. The amended act allows termination between 20-24 weeks under certain circumstances only for certain categories of women.
Under Rule 3B of Rules annexed to the MTP Amendment Act, 2021, seven categories of women are eligible for termination between 20–24 weeks. These are: survivors of sexual assault or rape or incest; minors; those who have a change of marital status during the ongoing pregnancy (widowhood and divorce); women with physical disabilities; mentally ill women; women carrying malformed foetus that has substantial risk of being incompatible with life; and women with pregnancy in humanitarian settings or disaster or emergency situations, as may be declared by the government.
While the law recognises change in circumstances of the relationship status between a pregnant woman and her spouse—in the case of divorce and widowhood—it does not envisage the situation for unmarried women.
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