In a significant order, the Supreme Court Thursday expanded the scope of the Medical Termination of Pregnancy Act to include unmarried women and allowed a 25-year-old woman to abort her 24-weeks pregnancy arising out of a consensual relationship. The top court said, “a woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution and she has a sacrosanct right to bodily integrity”.
A bench of Justices DY Chandrachud, Surya Kant, and AS Bopanna said, “Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. Live-in relationships have been recognized by this Court”. It requested the Director of the AIIMS, Delhi to constitute a Medical Board in terms of the provisions of the Medical Termination of Pregnancy (MTP) Act, by Friday.
It said, “In the event that the Medical Board concludes that the fetus can be aborted without danger to the life of the petitioner, a team of doctors at the AIIMS shall carry out the abortion in terms of the request which has been made before the High Court…” The bench said that before doing so the wishes of the woman shall be ascertained again and her written consent obtained after due verification of identity and a report shall be furnished to this Court after compliance with this order within a period of one week thereafter.
It said, “In the meantime, we are of the view that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament. 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 unmarried woman.”
It added that 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”, it said. The bench said that Parliament by amending the MTP Act through the Act of 2021 intended to include unmarried women and single women within the ambit of the Act which is evident from the replacement of the word husband’ with partner’ in the provisions.
The top court emphasised that 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”, it said.
The bench, however, pointed out and said that there is a gap in the law as 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.
“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”, it said. The bench took note that the High Court in its July 15 order has held that since the petitioner is an unmarried woman whose pregnancy arose out of a consensual relationship, her case is “clearly not covered” by any of the rules and provisions of the MTP Act.
It said, “Prima facie, quite apart from the issue of constitutionality which has been addressed before the High Court, it appears that the High Court has taken an unduly restrictive view of the provisions of clause (c) of Rule 3B. Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words widowhood and divorce”. Analysing the explanations in the statutes, the bench said that explanation one 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”, it said. The top court said that in this case, the petitioner submits that she was deserted by her partner at the last stage in June 2022 causing her immense mental agony, trauma, and physical suffering. “Excluding unmarried women and single women from the ambit of the statute goes against the purpose of the legislation”, it said, adding that the comparison of the MTP, Act of 1971 and MTP, Act of 2021, shows that the phrase married woman’ was replaced by any woman’ and the word husband’ was replaced by partner’.
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