The Special Leave Petition was mentioned before the bench of Chief Justice of India NV Ramana, Justices Krishna Murari and Hima Kohli.
Urging the bench to list the petition today, the counsel said, "This relates to a 25 year old women who is carrying a pregnancy of 24 weeks seeking termination of pregnancy. Every day is tough for her. It's mental cruelty and it's becoming challenging for her everyday. It's a humble request to list the matter for today."
Considering counsel's submissions, the CJI said, "Just now we've been given the paper let us see."
A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad on July 16, 2022 had rejected interim relief to allow the abortion of pregnancy observing that "unmarried woman whose pregnancy arises out of a consensual relationship" was not covered under the categories of women mentioned in the Medical Termination of Pregnancy Rules, whose pregnancy can be terminated above the 20 weeks.
"As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself", the HC said.
Before the High Court, the counsel appearing for the Petitioner had argued that Rule 3B of the Medical Termination of Pregnancy Rules, 2003 was violative of Article 14 of the Constitution of India, 1950, inasmuch as it excluded an unmarried woman.
On this, the Court said thus:
"Whether such rule is valid or not can 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 Court noted that sec. 3(2) (a) of the Medical Termination of Pregnancy Act provides that the Medical Practitioner can terminate the pregnancy, provided, the pregnancy does not exceed 20 weeks.
"Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks," the Court noted further.
The counsel for petitioner had then argued that in case the Petitioner had been a widow or a divorcee, she would not even have to take permission from the court. It is owing to her status as an unmarried woman that she was required to take permission from the court. The petitioner, while highlighting the legislative intent of amending Section 3(2)(b) in 2021, stated that legislature had via its amendment, permitted termination of pregnancy in light of new medical advancements.