Bombay High Court Slams State For Opposing Unmarried Woman's Pregnancy Termination As She Did Not "Fit Criteria" Of Being Widow Or Divorcee

The Bombay High Court on Monday pulled up the Maharashtra Government for opposing the 20-weeks medical termination of pregnancy of an 'unmarried' woman on the ground that she 'does not fit' the criteria for undergoing an abortion.

A division bench of Justices Sarang Kotwal and Dr Neela Gokhale questioned the 'rationale' in the argument put forth by the State that for the petitioner, a 23-year-old unmarried woman, to benefit from the Medical Termination of Pregnancy (MTP) Act, must fit in the criteria i.e. she either must be a widow or a divorcee. 

"How can an unmarried woman become a widow or a divorcee? What kind of an argument is this?" the bench questioned additional government pleader Monali Thakur.

The bench referred to the decision of the Supreme Court in X vs The Principal Secretary Health and Family Welfare Department wherein the apex court held that 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 by introducing the MTP Act.

"Thus, the interpretation that since the petitioner is unmarried and thus cannot be allowed to terminate her pregnancy, would not be a correct interpretation of the provisions of the Act. In the result, since all other conditions are satisfied the petitioner should get benefit of the Act to terminate her pregnancy," the judges ordered.

The bench therefore, permitted the petitioner to undergo MTP as per law.

Further, the bench noted that the petitioner, being 'unmarried' was disallowed to fill the mandatory Form E under the MTP Rules, 2021 by the government-run JJ hospital.

Notably, the petitioner was pregnant with 20 weeks and 6 days and when she went to the JJ hospital for terminating the same, she was informed that since her pregnancy is between 20 weeks and 24 weeks, she will have to fill in the Form E under the MTP Rules, 2021. The form E is basically a certification by two medical practitioners, who will specify the circumstances under which a woman, carrying pregnancy between 20 weeks to 24 weeks, can be permitted to undergo medical termination of pregnancy. 

Following are the categories of women, eligible for termination of pregnancy up to twenty-four weeks, as provided under the MTP Rules, 2021:

(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.

Advocate Meenaz Kakalia appearing for the petitioner, pointed out that her client was initially suggested to fill in the form but then later denied on the ground that she was not fitting in any of these categories. 

Taking note of the same, the bench has ordered both the Union and also the State governments to consider changing the format of the Form E so as to not deprive unmarried woman from benefitting from the said act. 

"As far as prayer B is concerned, Central as well as State government, shall consider making changes in the form formats and procedure to be followed in such cases in consonance with the observations made by the SC," the bench said while disposing of the plea. 

Case title: XYZ vs.The State of Maharashtra & Anr.

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