Denying Unmarried Woman Right To Safe Abortion Violates Her Personal Autonomy & Freedom : Supreme Court

"Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom", observed the Supreme Court on Thursday while allowing an unmarried woman to seek abortion of her pregnancy of a term of 24 weeks which arose out of a consensual relationship.

Passing an ad-interim order to grant relief to the 25-year old woman, the Supreme Court prima facie observed that her case was covered under the Medical Termination of Pregnancy Act 1971. The Delhi High Court, before which the petitioner had first approached, had denied her interim relief on the ground that the pregnancy of an unmarried woman arising out of a consensual relationship is not specified among the categories of women whose pregnancy can be aborted during the term of 20-24 weeks as per the Medical Termination of Pregnancy Rules 2003.

The Supreme Court made a prima facie observation that the High Court has taken an "unduly restrictive view of the provisions unduly restrictive view of the provisions".

The Apex Court said :"Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words "widowhood and divorce". The expression "change of marital status" should be given a purposive rather than a restrictive interpretation. The expressions "widowhood and divorce" need not be construed to be exhaustive of the category which precedes it".

2021 amendment substitutes "husband" with "partner"; legislative intent to cover unmarried woman

The bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna took into account the amendments made to the Medical Termination of Pregnancy Act in 2021 which substituted the word "husband" in Explanation 1 to Section 3(2) of the Act with the word "partner".

The order stated :

"Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy. The Parliamentary intent, therefore, is clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship. On the contrary, a reference to the expression "any woman or her partner" would indicate that a broad meaning and intent has been intended to be ascribed by Parliament. The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child. In recognizing the right the legislature has not intended to make a distinction between a married and unmarried woman, in her ability to make a decision on whether or not to bear the child. These rights, it must be underscored, are in consonance with the provisions of Article 21 of the Constitution".

Excluding unmarried women and single women from the ambit of the statute goes against the purpose of the legislation.

The Court further observed that excluding unmarried women and single women from the ambit of the statute goes against the purpose of the legislation.

It also noted that after 2021 amendment, the word "married woman" has been substituted with "any woman" and "husband" with "partner". However, the Court noted that 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", the order stated.

No basis to deny unmarried women the right to medically terminate the pregnancy

"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", the order stated further.

"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.", the Court further stated.

In Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, the decision of a woman to procreate or abstain from procreating has been recognized as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution.

It also took into account the fact that law recognizes live-in relationships.

Distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object of the Act

On the above premises, the Court concluded that the petitioner's case prima facie falls within the ambit of the Act. Therefore, the ad-interim order was passed the petitioner to terminate her pregnancy, subject to a medical board constituted by AIIMS Delhi concluding that the foetus can be aborted without harm to the life of the petitioner.

The order stated :

"...we are of the view that allowing the petitioner to suffer an un- wanted pregnancy would be contrary to the intent of the law enacted by Parlia- ment. Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an un- married woman. 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. The petitioner had moved the High Court before she had completed 24 weeks of pregnancy. The delay in the judicial process cannot work to her prejudice".

The bench issued notice to the Union Government to consider the issue of legislative interpretation. The case will be next considered on August 2 to consider the compliance report of the medical board.

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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