New Delhi: The Supreme Court allowed the 25-year-old single woman whose plea seeking termination of her pregnancy (of 24 weeks) was denied by the Delhi high court on July 15, to go ahead and do so, provided a medical board certifies that there is no threat to her life from the abortion, adding that the high court had taken an “unduly restrictive” view.
An unmarried woman cannot be denied the right to abort an unwanted pregnancy, the Supreme Court added. The law under the Medical Termination of Pregnancy (MTP) Act, 1971, recognises the reproductive right and bodily integrity of women and to allow them suffer an unwanted pregnancy would violate the intent of Parliament behind enacting the law, it said.
A bench of justices Dhananjaya Y Chandrachud, Surya Kant and AS Bopanna made the remarks while hearing the plea of the woman against the Delhi high court order last week, asking her to give up the child for adoption rather than terminate her pregnancy.
The woman approached the high court, citing her unmarried status and a failed relationship wherein her partner “ditched” her at the last moment (about 18 weeks of pregnancy). Social stigma coupled with mental and financial constraints compelled her to approach the court to terminate the pregnancy at an advanced stage, her counsel argued, adding she was the eldest of four siblings and her father is a farmer.
After the high court rejected her plea on July 15, on the grounds that she is unmarried and permitting an abortion at this stage would virtually amount to killing the foetus, the woman’s counsel mentioned the same before Chief Justice of India NV Ramana on Tuesday. Her counsel argued that she has been going through immense mental trauma and that every day’s delay is costing her physically and psychologically.
The upper limit for the termination of pregnancy is 24 weeks for special categories, including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.
As on July 18, the foetus of the petitioner was 24 weeks old.
The high court took an “unduly restrictive” view of the provisions of the MTP Act and MTP Rules, 2003, the top court said, citing section 3B(c) of the 2003 Rules, which allows women who undergo “change of marital status during the ongoing pregnancy” by way of widowhood or divorce to undergo termination of pregnancy.
“The expression ‘change in marital status’ should be given a purposeful interpretation,” the bench said.
It also pointed at section 3(2) of the MTP Act, saying the legislature provides for termination of an unwanted pregnancy, and referred to Explanation 1 of this section which allows termination of pregnancy not exceeding 20 weeks on the ground “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.”
“We are of the view that allowing the petitioner to suffer an unwanted pregnancy would clearly be contrary to the intent of Parliament. The petitioner should not be denied the benefits under the Act merely on the ground that she is unmarried as the distinction between a married and unmarried woman has no nexus to the Explanation given in the law,” the bench said.
“Parliament’s intent is not to confine benefits of the Act only to matrimonial relationship. Contrary to it, Explanation 1 containing the expression ‘woman or partner’ gives it a broad meaning, intended to recognising the basic reproductive right and bodily integrity of women in consonance with Article 21 of the Constitution,” it added.
Holding this prima facie view, the bench agreed to examine the matter further and also issued a notice to the Centre on the woman’s plea.
The court directed additional solicitor general (ASG) Aishwarya Bhati to examine the law in the light of its order. It further requested the director of All India Institute of Medical Sciences (AIIMS) to constitute a medical board of at least two medical practitioners to examine the woman, preferably by Friday, and conduct the abortion if there is no danger to her life.
The court directed the matter to be listed within a week of receiving the report from the medical board.
In its order on July 15, the high court held that since the petitioner was not married and the pregnancy arose out of a consensual relationship, her case cannot be considered within the MTP Rules providing for termination of unwanted pregnancy.
The petitioner argued that her case was covered under section 3(2)(b)(i) of the MTP Act where any pregnancy of a term of 20-24 weeks can be terminated if at least two registered medical practitioners are of the view 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.”
The petitioner, in her plea, said she was in a consensual relationship and it was only in June this year that she learnt about her pregnancy. In the absence of any source of livelihood, she informed the court of her inability to raise and nurture the child.
She also said that forcing her to give birth to the child would cause her immense mental agony and physical hardship.