Unmarried Woman's Right To Seek Abortion : Supreme Court Posts Matter For Hearing On August 10; Seeks Union's Views

In a plea filed by a 25 year old unmarried woman seeking medical termination of her 24 week pregnancy, the Supreme Court, on Friday, reflected on ways to extend the benefit of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971, to unmarried women so that they can also seek medical termination of pregnancy which exceeds the period of 20 weeks but does not not exceed 24 weeks.

The Court had on July 21 passed an ad-interim order prima facie observing that abortion can't be denied just because a woman is unmarried and that there was no rational basis to exclude unmarried women from the ambit of the MTP Act.

A Bench comprising Justices D.Y. Chandrachud and J.B. Pardiwala, asked the Additional Solicitor General, Mr. Aishwarya Bhati to file a note by the next date of hearing and assist the Court with judgments in this regard. The case will be heard next on August 10.

Justice Chandrachud was of the opinion that one of the ways the provision can be made applicable to all, irrespective of marital status, is by striking down the expression "for the purposes of clause(a)" in Explanation 1 to Section 3(2) as 'manifestly arbitrary and violative of the woman's right to autonomy and dignity'.

"I was thinking if we strike down words 'for the purpose of clause (a)'' from Explanation 1, then the benefit of termination on the grounds of mental anguish would be applicable to all. Then the explanation will apply to Section 3(2)(b) also. Then Rules will not be restrictive. That is the only way to get around this."

Section 3(2) of the Act reads as under -

"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

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that—

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality."

Explanation 1 to Section 3(2) is as under -

"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."

To be eligible for seeking medical termination of pregnancy between 20 to 24 weeks, i.e. under Section 3(2)(b), it is required to meet the stipulations in the Medical Termination of Pregnancy Rules, 2003. It is pertinent to note that the Rules does not permit abortion of 20-24 weeks' pregancy for unmarried women. The benefit of the provision extends to married women, divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.

Considering the language in Explanation 1, 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 categorized in the Rules.

He noted that under Section 3(2)(b), pregnancy between the term of 20 to 24 weeks can be terminated, if two registered medical practitioner opine that the 'the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health.' He was of the view Section 3(2)(b) could be covered by Explanation 1, which envisages that the anguish caused by unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Referring to the usage of the word 'partner' in Explanation 1, he observed that the legislature does not seem to distinguish between married and unmarried women. He was of the opinion that there was no reasonable differentiation between the two classes, because the extent of risk would be the same for both married and unmarried women.

"So, what does the legislature intend? It does not just use the word 'husband'. It used the word 'partner'. The legislation is not only concerned about people who have undergone pregnancy within marriage but outside marriage. In that case an unmarried girl who is a major suffers an unwarranted pregnancy, why should she be excluded from termination if married woman is allowed…The danger to life is as much for a married girl as for an unmarried girl. In that case there is no logical reason for differentiation."

ASG Aishwarya Bhati submitted that the categories of women permitted to undergo abortion in the term between 20 to 24 weeks, as prescribed in the Rules is not on the basis of marital status, but their vulnerabilities.

"The seven categories have been created in the Rules for extremely vulnerable women. That is not really on matrimonial status."

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 issued notice to the Union Government and sought the assistance of Ms. Bhati on 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 vs The Principal Secretary, Health & Family Welfare Department 2022 LiveLaw (SC) 621]

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