Rule preventing unmarried women from abortion after 20 weeks challenged, Delhi HC seeks Centre’s response

The division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad on Friday had said that it “will not permit” the woman to undergo medical termination of pregnancy at past 23 weeks, saying it would “virtually” amount to “killing the child”, and suggested that she should give birth and opt for adoption instead.

“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 division bench said in the order.

The woman is a permanent resident of Manipur and currently resides in Delhi. The court was told the pregnancy arises out of a consensual relationship and she cannot give birth to the child as she is an unmarried woman and her partner refused to marry her. It was further argued before the court by her lawyer that in case the unmarried woman, who is only an Arts graduate, gives birth to the child, it will lead to her “ostracisation” and cause her mental agony. She was “ditched” by her partner at the last moment as he backed out of the promise of marriage, the court was told.

During the hearing on Friday, the court had said, “We will not permit you to kill the child; 23 weeks are over. The child will be in the womb for how many weeks for normal delivery? Hardly how many weeks are left? Give the child to somebody in adoption. Why are you killing the child?” said the division bench.

The woman has challenged Rule 3B of the Medical Termination of Pregnancy Rules, 2003, as per which only some categories of women are allowed to seek termination of a pregnancy between 20-24 weeks.

The women who can seek relief under the rule include survivors of sexual assault or rape or incest; minors; change of marital status during the ongoing pregnancy (widowhood and divorce); women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016]; mentally ill women including mental retardation; 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 women with pregnancy in humanitarian settings or disaster or emergency situations, as may be declared by the government.

Dr Amit Sharma, her counsel, had told the court that her case is covered under Section 3(2)(b)(i) of the Medical Termination of Pregnancy Act, according to which a pregnancy between 20-24 weeks can be terminated if two doctors are of the opinion that “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 argued that Rule 3B is violative of Article 14.

However, the court in the order said that Section 3 (2) (b) of the Act is applicable only to those women who are covered under the 2003 Rules. “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,” said the bench.

The bench further said that as of today, Rule 3B stands and the court cannot go beyond the statute. “In view of the above, this court is not inclined to entertain the interim application at this stage,” it said.

The court Friday had observed it was not forcing the woman to raise the child and would ensure that she was sent to a good hospital. “Your whereabouts will not be known to anyone. You will deliver the baby, and please come back. Everything will be looked after by the government of India or of Delhi or some good hospital. If the government does not pay… I am there to pay,” it said.

While the law permits termination of a pregnancy of up to 20 and 24 weeks provided the women meet the conditions stipulated under the MTP Act and MTP Rules, the pregnancy beyond that period can only be terminated if doctors are of the view that the termination is “immediately necessary to save the life of the pregnant woman”.