Unmarried Woman Pregnant Out Of Consensual Relationship Cannot Seek Termination Of Pregnancy After 20 Weeks: Delhi High Court

Refusing interim relief to a 25 year old unmarried woman seeking termination of her pregnancy of 23 weeks and 5 days, the Delhi High Court has observed that an unmarried woman, whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003.

The petitioner's pregnancy would complete 24 weeks on 18th of this month.

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed thus:

"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 Medical Termination of Pregnancy Rules, as amended in 2021, provides the categories of women whose pregnancy above the age of 20 weeks can be lawfully terminated. The Court said that an unmarried woman, who is pregnant out of a consensual relationship, is not specified among those categories.

The woman had approached the Court seeking termination of her pregnancy stating that her pregnancy arose out of a consensual relationship and that she could not give birth to the child as she was an unmarried woman and her partner had refused to marry her.

It was stated that giving birth out of wedlock will entail in her ostracisation and cause her mental agony. The woman also stated that she was not mentally prepared to be a mother and continuing with the pregnancy will lead to grave physical and mental injury for her.

The counsel appearing for the Petitioner argued that Rule 3B of the Medical Termination of Pregnancy Rules, 2003 is violative of Article 14 of the Constitution of India, 1950, inasmuch as it excludes 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 Court also noted that sec. 3 (2) (b) of the Act provides that the said sub- Section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003.

"The Petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case," the Court observed.

Accordingly, the Court refused the interim relief to the petitioner.

While while reserving the order yesterday, the Bench had suggested that the Petitioner has passed significant period of the pregnancy duration and that she should consider delivering the child and giving it in adoption.

"Why are you killing the child? There are big queue for adoptions...We are not forcing her (Petitioner) to raise the child. We will ensure that she goes to a good hospital. Her whereabouts will not be known. You give birth and come back," the Bench had said.

The State had opposed the petition, arguing that Section 3(2)(b) is not applicable to the Petitioner. It was mentioned that the Act contemplates various circumstances under which a woman may seek termination of pregnancy and this includes circumstances where termination may be permitted even post 24 weeks. However, such provisions are not attracted to the instant case.

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.

The petitioner's counsel argued that the 2021 amendment substituted the word "husband" in the Act with "partner" and the legislative intent was to cover unmarried women too.

The Court said that the Rules, as it stand today, do not cover unmarried women.

"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", it said.

While dismissing the application seeking interim relief, the Bench however issued notice on the plea, to the extent of the prayer seeking direction to include unmarried woman within the ambit of the Rule 3B of the Medical Termination of Pregnancy Rules 2003 for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the MTP Act, for a period of up to twenty-four weeks.

The matter has now been fixed for hearing on August 26.

Women eligible for termination of pregnancy up to twenty-four weeks

On October 12, 2021, the Union Government notified the Medical Termination of Pregnancy (Amendment) Rules 2021, in which the categories of women eligible for abortion of pregnancy up to 24 weeks were specified. They are :

(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. 

CASE TITLE: MS. X v. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF INDIA

Citation: 2022 LiveLaw (Del) 660

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