Court Name:- The Supreme Court Of India
Jurisdiction:- Civil Appellate Jurisdiction
Appeal Number:- Civil Appeal No 5802 of 2022(Arising out of SLP (C) No 12612 of 2022)
Petitioner:- X
Respondent [s]:-The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr
Bench:-Dr Dhananjaya Y Chandrachud J.,A S Bopanna J.,J B Pardiwala J.
Date of Judgement:-September 29, 2022
Legal Provisions:- Medical Termination of Pregnancy Rules,2003, Medical Termination of Pregnancy Act,1971[1], Article 21 and Article 14 of the constitution of India.
Facts of Case:- Appellant, a 25 year old citizen of India is an unmarried woman. She became pregnant as a result of a consensual affair and wished to terminate her pregnancy before 24 weeks under Section 3(2)(b) of Medical Termination of Pregnancy Act,1971[2] and Rules 3(B) of Medical Termination of Pregnancy Rules, 2003 with the permission of the court on 15 July 2022. The reason behind her decision was refusal of a partner to marry with her, unmarried mother is treated as a stigma on society and for not being financially independent. The Hon’ble High Court of Delhi while exercising the powers conferred under article 226 of the Constitution of India held that above rules and act is inapplicable in instant case as the pregnancy of unmarried woman which occurs as a result of consensual affair is not covered within the ambit of MTP Rules 2003. Special leave petition is filed before The Hon’ble Supreme Court of India against the order of the High Court in the present case.[3]
Issues Raised
- Whether unmarried or single or deserted women are covered under Rule 3B(c) of the Medical Termination Of Pregnancy Rules,2003 for the termination of pregnancy?
- Whether the denial of women’s right to make reproductive choices violates article 21 of the constitution of India?
- Whether excluding a single woman from the gamut of Rule 3B violates article 14 of the constitution of India?
Submissions Of The Parties
Appellant Side:- The counsel on the behalf of appellant humbly submits before this hon’ble court that
- Appellant was an unmarried pregnant woman who wanted to terminate her pregnancy because of lack of means of support as her parents were agriculturalists and her partner refused to marry her.
- She was not willing to raise a child by herself as it will impact her mental and physical health.
- It is pertinent to note that excluding unmarried women from the from the clause 3(2)(b) Medical Termination Of Pregnancy Act, 1971 and Rule 3B(c) of Medical Termination Of Pregnancy Rules, 2003 is discriminatory. Thus violates article 14 of the constitution.
Respondent Side:- The learned senior counsel provides assistance to this court in interpreting the MTP Rules and the counsel made the following submission in favour of her argument i.e, married or unmarried women who are in the long term relationship are covered under Rule 3B(c).
- To determine the interpretation of a statute, legislative intent behind that law along with the words and object which it sought to achieve should be taken into account.
- In the interpretation of legislation which is framed in one’s best interest the rule of litera legis must be avoided rather than need to determine a purposeful meaning.
- In Rule 3B(c), provision change of marital status has to be interpreted as change in status of relationship so as to cover maiden or single woman or who stops living together with her spouse or forsaken woman.
- Live-in relationships are identical to matrimonial relationships as in both cases women acquire the right of maintenance and moreover the right of succession is also vested in the children born from such relationships. There are numerous legislation including the MTP Act which makes no difference between married and unmarried women.
- Every woman enjoys the right to make her own choices about her body and is entitled to take an independent decision in matters relevant to reproduction.
Rationale
The underlying reasons for the decision of the bench comprising Chief Justice Dhananjaya Y Chandrachud , Justice A S Bopanna, Justice B Pardiwala are mentioned below:-
‘Barriers and Stigma Attached To The Pregnancy Of Unmarried Women’. The bench observed that despite the provisions mentioned in the MTP Act for safe and legal abortion still numerous social and legal hurdles are involved especially in case of unmarried women. These barriers resist the woman from availing the beneficiary legislation violating her rights to reproductive autonomy. Every unmarried woman confronts the social stigma for entering in premarital sexual intercourse which compels her to abort the child by unlicensed doctors which leads to the catastrophic results. Moreover if the conditions laid down under the MTP Act are not fulfilled then abortion becomes a criminal offence under the Indian Penal Code also the apprehension of prosecution refrain the RMP (Registered Medical Practitioner) from navigating the provisions of MTP Act. This court observed that ‘The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and exclude groups based on their personal circumstances’.
‘Married Woman and Unmarried Woman Are On Equal Footing’.Court observed that enactment such as section 5 of Maternity Benefit Act 1961[4], section 6 of Hindu succession Act 1956[5], section 8 of Hindu Adoption and Maintenance Act 1956[6] provides equal rights and benefits to all women without any discrimination between married and unmarried. Likewise while interpreting the MTP Act and rules societal actuality of present should be taken into account. The MTP Amendment 2021 substituted ‘any woman or her partner’ for ‘married woman or her husband’ which extends the benefit of the legislation to all women and to include the pregnancy which occurs outside the marital relation.
‘Purposive Interpretation of Rule 3B of the MTP Rules,2003′. The Apex court while interpreting rule 3B observed that rule 3B(c) provides for ‘change of marital status during ongoing pregnancy ‘which can be interpreted as change in her marital circumstances. Widowhood and divorce are mentioned at the end of Rule 3B(c) did not restrict the interpretation of the rule as they are explanatory. A narrow interpretation of rule 3B(c) would grant benefit only to married women and would cause to continue the cliché that only married women can engage in sexual intercourse accordingly law only provides benefit to them. ‘This artificial distinction between married and single women is not constitutionally sustainable.’ Both the married and unmarried woman are equally entitled for the benefits in law. This Court referred to the judgement of Bombay High Court in case of XYZ v. State of Maharashtra[7] and Siddhi Vishwanath Shelar v. State of Maharashtra[8] wherethe court permitted the unmarried woman to terminate her unwanted pregnancy.
‘Inclusion of Married Women Under The Category Of Survivors of Sexual Assault or Rape’. The bench was of opinion that a woman may become a victim of rape when her husband performs sexual intercourse without her consent. The myth that only strangers are responsible for sex- gender based violence is reprehensible. For the purpose of any rules and regulation framed under the MTP Act the meaning of rape must include marital rape also.
‘The Right To Reproductive Autonomy and Article 21’. The Court held that reproductive rights cover a wide range of freedom including the decision making power of a woman related to her ‘sexual and reproductive health’. Rights of a pregnant woman to decide whether to bear the child or not is intrinsic to reproductive autonomy. Court relied on the judgement Suchita Srivastava v. Chandigarh Administration of the ‘right of women to
make reproductive choices is a dimension of personal liberty under Article 21′[9]. The Court ruled that Article 21 of the constitution protects the right of a woman to choose whether she wants to abort the child or not, especially in case of unwanted pregnancy posing a risk to her physical and mental health. Further, right to dignity is an important facet of article 21 and forcing a woman for the continuance of unwanted pregnancy would be an attempt to infringe this right.
‘Constitutional Mandate under Article 14 of the Constitution’. The Court held that considering the purpose behind section 3(2)(b) of the MTP Act read with Rule 3B of MTPR there can be no justification for the exclusion of unmarried or maiden women from the gamut of Rule 3B. Therefore including only married women would amount to a restrictive interpretation of Rule 3B and would be violative of article 14 for being discriminatory towards single women.
‘Reliance on International Laws’. Every woman is entitled for reproductive rights and these rights must be in consonance with the conventions and the international laws ratified by India and the fundamental principles of constitution.
The three judges bench of this court unanimously passed ad interim order for the constitution of a medical board under section 3(2D) of the Act.[10] The board finds out that the procedure of abortion can be performed without any risk to the life of the appellant. In the report submitted by AIIMS, the appellant undergoes a safe abortion.
Defects of Law
The MTP Amendment Act came into force on September 24, 2021 provides for significant change by including all women for the termination of pregnancy from 20 weeks to 24 weeks and also extends the benefits of presumption of severe injury to woman mental well being.[11] The High Court of Delhi can give the decision in favour of the appellant relying on the above amendment and decision of other High Courts in matters of termination of unwanted pregnancy of a single woman rather than contributing in delay for safe abortion where the life of the person is in question.
Inference
In the present case the three-judge bench preferred to adopt an interpretation which furthered the basic constitutional mandate to avoid the absurdity of statute. Court recognises the right of an unmarried woman to abort her pregnancy which occurs as a result of consensual affair. This judgement breaks the stereotype that a woman can be sexually assaulted only outside the home not by her husband. This judgement paves the way for the protection of reproductive and decisional autonomy of every woman.
Samridhi Srivastava
University of Lucknow
[1]The Medical Termination of Pregnancy Act,1971,No. 34, Acts of Parliament, 1971(India).
[2]TheMedical Termination of Pregnancy Act,1971, § 3(2)(b),No. 34, Acts of Parliament, 1971(India).
[3] X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr, Civil Appeal No.5802 of 2022.
[4] The Maternity Benefit Act,1961,§5,No.53, Acts of Parliament, 1961(India).
[5] The Hindu Succession Act,1956,§6,No.30, Acts of Parliament, 1956(India).
[6] The Hindu Adoption and Maintenance Act, 1956,§8,No.78, Acts of Parliament, 1956(India).
[7] XYZ v. State of Maharashtra,Writ Petition(L.) No.21977 OF 2021.
[8] Siddhi Vishwanath Shelar v. State of Maharashtra,Writ Petition (L) No.15599 Of 2021
[9] Suchita Srivastava and Anr v. Chandigarh Administration, Civil Appeal No.5845 of 2009(Arising out of S.L.P. (C) No. 17985 of 2009).
[10]The Medical Termination of Pregnancy Act,1971,§3(2D),No. 34, Acts of Parliament, 1971(India).
[11] The Medical Termination of Pregnancy (Amendment) Act,2021,No.8, Acts of Parliament,2021(India).
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