Bombay HC allows 23-year-old unmarried woman to undergo termination of pregnancy, says no rationale in excluding unwed, single women

It directed the state government to make changes as per SC observations, in forms, formats, and procedures seeking to be followed in cases seeking an abortion under the Medical Termination of Pregnancy Act, 1971.

A division bench of Justices Sarang V Kotwal and Neela K Gokhale on Monday passed an order in a plea by the woman argued through advocate Meenaz Kakalia.

The petitioner claimed that while her pregnancy was a result of a consensual relationship, she was no longer in touch with the said person, who used to live in the same village where she would reside with her grandparents. Kakalia argued that the petitioner was single and unmarried, and did not have the physical, mental, or emotional capacity to raise a child.

The petitioner was advised to visit JJ Hospital where she was informed that the consent form provided in the MTP Rules, 2003, required the doctor to specify under which category mentioned in Rule 3 (b) of the said rules, the petitioner would fall, if her pregnancy was between 20-24 weeks. Therefore, she was not able to terminate her pregnancy, prompting her to approach the HC seeking necessary permission for the same. Kakalia argued that the case of an unmarried woman would also be covered under the particular rule.

However, the state government lawyer argued that Rule 3-B permits termination in certain categories and stipulates that change in marital status (widowhood and divorce) during ongoing pregnancy renders women eligible for termination. Therefore, it will not extend to unmarried women and the petitioner’s case would not fall under the said categories, the lawyer contended.

The bench, citing the Supreme Court judgment, noted that the woman in certain situations may not be prepared to raise the child as a single parent. “The women may undergo a sea change in their lives for reasons other than a separation with their partner,” it added.

The Supreme Court had also noted that if the Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women get benefits by law and did not find rationale for excluding unmarried or single women from the ambit of the Rule.

The HC, while allowing the plea, held that the SC’s observations were ‘squarely applicable’ in the petitioner’s case and if all other conditions are satisfied, she should get the benefit to make a choice to terminate her pregnancy.