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Supreme Court lets unmarried woman terminate 24-week pregnancy, opens doors for others

On Friday, a bench of Justices D Y Chandrachud and J B Pardiwala said that there appeared to be no logical reasoning to allow a married woman to do so under the Medical Termination of Pregnancy [MTP] Act, 1971, and Rules framed under it, but denying the same to unmarried women, even though the risk is same for both.

Additional Solicitor General Aishwarya Bhati, who appeared for the Union Health Ministry, said the question is not about being married or unmarried but about the woman's well-being, as 24 weeks is not easy. (File Photo)

The Supreme Court’s decision to permit a 25-year-old unmarried woman to terminate her pregnancy of 24 weeks may soon open the doors to extend the relief to all unmarried women.

On Friday, a bench of Justices D Y Chandrachud and J B Pardiwala said that there appeared to be no logical reasoning to allow a married woman to do so under the Medical Termination of Pregnancy [MTP] Act, 1971, and Rules framed under it, but denying the same to unmarried women, even though the risk is same for both.

“An unmarried woman who suffers a pregnancy beyond 20 weeks can suffer the same mental anguish as the married woman. Why should she be excluded from termination up to 24 weeks if a married woman is allowed to do it,” Justice Chandrachud said. “We have to also move ahead when there is so much development around this. We are responsible for jurisprudential evolution.”

The bench said it can strike down the restrictive clause “for being manifestly arbitrary”, which in turn would allow extending the benefit of terminating pregnancy above 20 weeks to unmarried women as well. “Mental health is important. If we strike down the words…benefit of termination on grounds of mental anguish can be extended to even above 20 weeks,” the court observed. “Then rules will not be restrictive. That is a way to get around it.”

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Referring to the MTP Act, the court pointed to the intent of the legislature while it amended the law in 2021 and said the amended Act used the word ‘partner’, and not ‘husband’. “So it concerns [relationships] outside marriage as well,” it said.

Rule 3B of the law recognises certain categories of women — such as divorcees, widows, minors, disabled and mentally ill women, and survivors of sexual assault or rape — as being entitled to medically terminate pregnancy in particular situations, but this does not include unmarried women.

Additional Solicitor General Aishwarya Bhati, who appeared for the Union Health Ministry, said the question is not about being married or unmarried but about the woman’s well-being, as 24 weeks is not easy.

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The court asked the ASG to give suggestions on how to deal with it and posted the case for hearing next week.

Explained

What law says

Rule 3B of the law recognises certain categories of women — such as divorcees, widows, minors, disabled and mentally ill women, and survivors of sexual assault or rape — as being entitled to medically terminate pregnancy in particular situations, but this does not include unmarried women.

Justice Chandrachud remarked that the case had caused him a lot of intellectual anguish and added that now “we think how to craft the judgment, as it has to speak intellectually”.

On July 22, the SC had allowed an unmarried woman from Manipur, 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 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 Parliament,” the court had said in an interim order.

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The woman had approached the apex court after the High Court denied her the relief. She had told the court that the pregnancy was a result of a consensual relationship, and that she decided to terminate the pregnancy as her relationship had failed.

The woman stated that she is the eldest of five siblings and her parents are agriculturists. The petitioner stated that she holds a BA degree and, in the absence of a source of livelihood, she would be unable to raise and nurture a child.

First published on: 06-08-2022 at 11:53:43 pm
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