Supreme Court Explores Ways To Interpret MTP Rules To Recognize Unmarried Woman's Right To Abortion; Reserves Judgment

As the Supreme Court was exploring ways to extend the benefit of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (Act), to unmarried women so that they can also seek termination of pregnancy which exceeds the period of 20 weeks but not 24 weeks, Additional Solicitor General, Ms. Aishwarya Bhati, on Tuesday, beseeched it to intervene in the Medical Termination of Pregnancy Rules rather than the Act. She was of the opinion that it might be more effective to interpret the Rules as the distinction between married and unmarried women is made in the Rules and not the Act.

Considering her suggestion, a Bench comprising Justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala indicated that Rule 3B(b) of MTP Rules can be interpreted in a manner so as to include both married and unmarried women who have suffered abandonment.

"We can interpret Rule 3B(c) in such a manner that the change of marital status should be a broad category which would include a married woman who has been abandoned and an unmarried woman who has suffered abandonment."

Rule 3B categorises women who are eligible for termination of pregnancy up to 24 weeks as under -

(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.

Clause (c) envisages that a woman whose marital status has changed during the course of her pregnancy due to widowhood or divorce would be entitled to abort pregnancy up to 24 weeks. The Bench was of the view that the words 'widowhood and divorced' in Clause (c) can be interpreted to be illustrative and not exhaustive. The existing anomaly in the provision was pointed out by Justice Pardiwala, who noted that if clause (c) is given a strict interpretation it would even exclude married women who have been abandoned by their partners. In other words the benefit of the provision would only enure to married women who have been widowed and divorced during the course of their pregnancy. Justice Chandrachud reckoned that it might not be justified to ask a woman who has been deserted by their partner to undergo a full term pregnancy merely because she is not technically divorced or widowed. Accordingly, it was suggested -

"If (c) is interpreted to cover such a case then the issue is if we extend it a wee bit more saying change in marital status would also apply to an unmarried woman, who was in a relationship in the nature of marriage, in a regular relationship."

He added -

"A woman who has been abandoned; that state can apply to both married and unmarried women."

Agreeing to the proposed interpretation, ASG submitted that in the Indian context, unmarried women in live-in relationships would be more vulnerable, because they might not even have their family or their partner's family to fall back on.

Justice Chandrachud enunciated that Rule 3B(c) intended to extend the benefit of aborting pregnancy up to 24 weeks for women who have lost the support of their partners. He was of the opinion that the same logic can be extended to abandoned women, irrespective of their marital status.

Taking the Bench through the scheme of the Act of 1971, ASG stated that prior to its enactment, under the Indian Penal Code, termination of pregnancy was enumerated as an offence and the pregnant mother and the medical practitioners could be booked under the IPC for terminating pregnancy or attempting to terminate it.

Justice Chandrachud noted that the purpose of enacting the 1971 Act was to ensure access to safe abortion.

"The purpose of the Act is that woman should have access to safe abortions. Otherwise they would go for unhealthy techniques for aborting."

Ms. Bhati highlighted the three categories for whom termination of pregnancy was contemplated by the statute -

1. Where length of pregnancy does not exceed 20 weeks, (Before 2021 Amendment it was 12 weeks)
2. Where length of pregnancy 20 weeks but not 24 weeks (Before 2021 Amendment it was 12-20 weeks)
3. Length of pregnancy is immaterial when the condition is such that a termination is necessitated by the diagnosis of substantial foetal abnormalities diagnosed by a medical board.

Considering the language in the 1971 Act, which uses the word 'partner' instead of 'husband', Justice Chandrachud reckoned that the legislature could not have intended to restrict the application of the provision to married women and other women with vulnerabilities as has been categorised in the Rules. It was his view that in order to avail the benefit of abortion upto 20 weeks it makes no difference as to whether the woman is married or unmarried, but beyond 20 weeks and upto 24 weeks the law extends the benefit of the provision only to married woman.

Responding in the negative, Ms. Bhati submitted that there are 6 categories of women enlisted in the Rules 3B, who are permitted to terminate pregnancy up to 24 weeks, and it does not matter if they are married or not. However, only for the purposes of Rule 3B(c) there exists a distinction between married and unmarried women.

Justice Chandrachud enquired -

"If a married woman can terminate the pregnancy between 20-24 weeks irrespective of the exceptional categories, why should unmarried women be kept out of it."

He was also curious as to why the legislature made a value judgment that the failure of the birth control device would be a source of mental anguish for a woman only when she is in the first 20 weeks of her pregnancy and not beyond that.

In this regard it is pertinent to extract Section 3(2)(a) of the Act and Explanation 1 to Section 3(2) -

3. When pregnancies may be terminated by registered medical practitioners. -

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,—

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or…

Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman."

ASG apprised the Bench that there was medical literature to substantiate the decision of the legislators to set the said upper limit. Thereafter, Ms. Bhati took the Bench through the other statues wherein the interpretations have been broad enough to include both married and unmarried women. In this regard, she specially referred to Section 3(o), Maternity Benefit Act; to definition of aggrieved woman and domestic relationship in Protection of Women from Domestic Violence Act, 2005, Hindu Succession Act, 2005 and Section 8 of Hindu Adoption and Maintenance Act, which deals with capacity of a female Hindu to take in adoption. She also referred to case laws to substantiate her argument to interpret Rule 3B(c) of the MTP Rules.

The Court reserved judgment in the case after the hearing.

The Bench was considering the petition filed by a 25 year old unmarried woman seeking termination of her pregnancy of 24 weeks which had arisen out of a consensual relationship against Delhi High Court's order of refusing to grant her the said relief.

The Petitioner apprised the Apex Court that she is the eldest among 5 siblings and her parents are agriculturists. She submitted that in the absence of a source of livelihood, she will be unable to raise and nurture the child.

By a detailed order dated 21st July, 2022, the Apex Court had granted the petitioner the following relief:

1. AIIMS Delhi Director to constitute a medical board in terms of provisions of Section 3(2)(d) MTP Act during the course of July 22.
2. In the event the Medical Board concludes that the foetus can 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 procedure.

On the previous occasion, the Apex Court had sought Ms. Bhati's assistance for the interpretation of the relevant provision of MTP Act.

The High Court had refused to grant permission to the petitioner to undergo abortion. It observed that unmarried women, whose pregnancy arises out of a consensual relationship, are not squarely covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003.

[Case Title: X v. The Principal Secretary, Health & Family Welfare Department 2022 LiveLaw (SC) 621]

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