While the Supreme Court was considering how to extend the benefit of section 3(2)(b) of the Medical Termination of Pregnancy Act 1971 (the Act), to unmarried women so that they may also seek a termination of pregnancy that exceeds the period of 20 weeks but not 24 weeks, the Additional Solicitor General, Ms Aishwarya Bhati, pleaded with her on Tuesday to intervene in the rules on medical termination of pregnancy rather than the law. She was of the view that it might be more efficient to interpret the Rules since the distinction between married and unmarried women is made in the Rules and not in the Act.
Based on his suggestion, a bench comprising Judges DY Chandrachud, AS Bopanna and JB Pardiwala indicated that Rule 3B(b) of the MTP Rules can be interpreted to include both married and unmarried women who have been abandoned.
“We can interpret rule 3B(c) in such a way that the change in marital status should be a broad category that would include a married woman who has been abandoned and a single woman who has suffered abandonment.”
Rule 3B categorizes women eligible for termination of pregnancy up to 24 weeks as under-
(a) survivors of sexual assault, rape or incest;
(vs) change in marital status during the current pregnancy (widowhood and divorce);
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) women with mental illness, including mentally retarded;
(f) fetal malformation which presents a substantial risk of being incompatible with life or if the child is born he may suffer from physical or mental abnormalities such that he is seriously handicapped; and
(g) pregnant women in humanitarian settings or government-declared disaster or emergency situations.
Paragraph (c) provides that a woman whose marital status changed during her pregnancy due to widowhood or divorce would have the right to abort her pregnancy up to 24 weeks. The bench was of the view that the words “widowhood and divorced” in clause (c) can be interpreted as illustrative and not exhaustive. The existing anomaly in the provision was pointed out by Justice Pardiwala, who noted that if clause (c) were interpreted strictly, it would exclude even married women who have been abandoned by their partners. In other words, the benefit of the provision would only apply to married women widowed and divorced during pregnancy. Judge Chandrachud felt that it might not be justified to ask a woman who has been abandoned by her partner to undergo a full-term pregnancy simply because she is not technically divorced or widowed. Accordingly, it was suggested –
“If (c) is interpreted to cover such a case, then the problem is if we extend it a bit further by saying that the change in marital status would also apply to an unmarried woman, who was in a relationship of the nature of marriage, in a regular relationship.”
He added –
“A woman who has been abandoned; this state can apply to married and unmarried women.”
Agreeing with the proposed interpretation, ASG argued that in the Indian context, unmarried women in couples would be more vulnerable, as they might not even have their family or their partner’s family to fall back on.
Judge Chandrachud stated that Rule 3B(c) sought to extend the benefit of termination of pregnancy to 24 weeks for women who have lost the support of their partner. He is of the opinion that the same logic can be extended to abandoned women, whatever their marital status.
Taking the bench through the regime of the 1971 Act, ASG said that before its enactment, under the Indian Penal Code, termination of pregnancy was enumerated as an offense and pregnant mother and doctors could be convicted under under IPC to terminate pregnancy or attempt to terminate it.
Judge Chandracud noted that the purpose of enacting the 1971 law was to ensure access to safe abortion.
“The purpose of the law is for women to have access to safe abortions. Otherwise, they would opt for unsafe abortion techniques.”
Ms Bhati highlighted the three categories for which termination of pregnancy was contemplated by law –
- When the duration of pregnancy does not exceed 20 weeks (before the 2021 amendment it was 12 weeks)
- When the duration of pregnancy is 20 weeks but not 24 weeks (before the 2021 amendment it was 12 to 20 weeks)
- The duration of pregnancy is irrelevant when the condition is such that termination of pregnancy is made necessary by the diagnosis of significant fetal abnormalities diagnosed by a medical board.
Considering the wording of the 1971 law, which uses the word “partner” instead of “husband”, Judge Chandrachud held that the legislator could not have intended to restrict the application of the provision to married women and other vulnerable women, as categorized in the Rules. He was of the view that to enjoy the benefit of abortion up to 20 weeks, regardless of whether the woman is married or not, but beyond 20 weeks and up to 24 weeks, the law extends the benefit of available only to married women.
Responding in the negative, Ms. Bhati argued that there are 6 categories of conscripted women in the 3B rules, who are allowed to terminate a pregnancy up to 24 weeks, and it does not matter whether they are married or not. However, it is only for the purposes of Rule 3B(c) that there is a distinction between married and unmarried women.
Judge Chandrachud asked –
“If a married woman can terminate a pregnancy between 20 and 24 weeks, regardless of the exceptional categories, why should single women be excluded.”
He was also curious to know why the legislator made a value judgment that the failure of the birth control device would be a source of mental anguish for a woman only when she was in the first 20 weeks of her pregnancy and not beyond.
In this regard, it is relevant to extract Article 3(2)(a) of the Act and Explanation 1 of Article 3(2) –
3. When pregnancies can be terminated by licensed physicians. –
(2) Subject to the provisions of subsection (4), a pregnancy may be terminated by a licensed physician,—
a) when the duration of the pregnancy does not exceed twenty weeksif this doctor is, or…
Explanation 1.—For the purposes of paragraph (a)when a pregnancy occurs as a result of the failure of a device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such a pregnancy may be presumed to constitute a serious attack on the mental health of the pregnant woman.“
The ASG informed the House that there was medical literature to support the legislator’s decision to set said upper limit. Afterwards, Ms. Bhati presented the other statues to the bench in which the interpretations were broad enough to include married and unmarried women. In this regard, she referred in particular to section 3(o) of the Maternity Benefits Act; to the definition of aggrieved wife and domestic relationship in the Protection of Women from Domestic Violence Act 2005, the Hindu Succession Act 2005 and Section 8 of the Hindu Adoption and interview, which deals with the suitability of a Hindu woman to adopt. It also referred to the case law to support its argument of interpretation of Rule 3B(c) of the MTP rules.
The Court reserved judgment in the case after the hearing.
The bench was considering the petition filed by a 25-year-old single woman seeking the termination of her 24-week pregnancy which was born out of a consensual relationship against the order of the Delhi High Court denying her the said relief.
The petitioner informed the Apex Court that she is the eldest of 5 siblings and that her parents are farmers. She maintained that without a source of income, she would not be able to raise and feed the child.
By a detailed order dated July 21, 2022, the Supreme Court granted the applicant the following relief:
- The Director of AIIMS Delhi is to appoint a Medical Board as per the provisions of Section 3 (2) (d) of the MTP Act during July 22.
- In the event that the Medical Board concludes that the fetus can be aborted without danger to the applicant’s life, AIIMS will perform the abortion in accordance with the request. The report is submitted to the court at the end of the procedure.
On the previous occasion, the Apex Court had requested Ms Bhati’s assistance in interpreting the relevant provision of the MTP Act.
The High Court had refused to authorize the applicant to have an abortion. He observed that unmarried women, whose pregnancy arises from a consensual relationship, are not fully covered by any of the provisions of the 2003 rules on medical termination of pregnancy.
[Case Title: X v. The Principal Secretary, Health & Family Welfare Department 2022 LiveLaw (SC) 621]