Underlining that a distinction in law between a married and an unmarried woman should have no bearing on the right to terminate a pregnancy, the Supreme Court Thursday allowed an unmarried woman whose relationship status changed during the pregnancy to terminate her 24-week foetus.
“We are of the view that allowing the petitioner to suffer an unwanted pregnancy will go against the parliamentary intent and the benefits under the Act cannot be denied to her only on the basis of her being unmarried. The distinction between a married and an unmarried woman has no nexus to the object sought to be achieved by the Parliament”, the bench of Justices D Y Chandrachud, Surya Kant and A S Bopanna said.
“Petitioner should not be denied the benefit merely on the ground that she is an unmarried woman,” the bench said. The order, it said, would be subject to the final decision of a medical board constituted by the All India Institute of Medical Sciences, Delhi that the foetus can be aborted without any risk to the life of the woman.
The 25-year-old woman, a permanent resident of Manipur who currently resides in Delhi, moved the top court after the Delhi High Court last week declined her plea.
A two-judge bench of the Delhi High Court, comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, had observed that it would “amount to killing the child.”
The HC bench said it cannot allow what the law prohibits – access to termination of pregnancy between 20-24 weeks for an unmarried woman on the grounds that her relationship status changed.
The woman had told the court that the pregnancy was a result of a consensual relationship, and that she wanted to terminate the pregnancy because her partner had refused to marry her. She also told the court that she feared stigmatisation as a single, unmarried woman.
The Central law on abortion, The Medical Termination of Pregnancy Act,1971 (MTP Act), allows termination of pregnancy for all women in the first 20 weeks on the opinion of a registered medical practitioner. However, only certain categories of women are allowed termination between 20-24 weeks under certain circumstances.
Rule 3B of Rules annexed to the MTP Act, which was amended in 2021, specify seven categories of women who are eligible for termination between 20-24 weeks. These are: survivors of sexual assault or rape or incest; minors; those who have a change of marital status during the ongoing pregnancy (widowhood and divorce); women with physical disabilities; mentally ill women; women carrying malformed foetus that has substantial risk of being incompatible with life; and women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.
While the law recognises change in circumstances of the relationship status between a pregnant woman and her spouse — in the case of divorce and widowhood — it does not envisage the situation for unmarried women. This is the gap in the law that the petitioner before the Supreme Court falls in.
The petitioner had also challenged Rule 3B before the Delhi High Court. The court had issued notice to the Central government on the plea.
The Supreme Court also observed that the Delhi High Court had taken an “unduly restrictive view” of Rule 3B. The Court referred to the MTP Act’s use of “woman or her partner” in another provision that was also brought in after the 2021 amendment to say that the legislation must be given a “purposive interpretation”.
For pregnancies between 20-24 weeks old, the opinion of two doctors is required — they would have to determine “if 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 there is a “substantial risk” that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously “handicapped”, before agreeing to terminate the woman’s pregnancy.
Explanation 1 under Section 3 of the MTP Act states, “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.”