X v. Principal Secretary, Health & Family welfare, Govt. of NCT Delhi

Citation- SPL (C) No. 12612 of 2022

Date of Judgment- 29th September, 2022 

Author- J. D.Y ChandrachudBench- Justice D.Y Chandrachud, Justice A.S. Bopanna, Justice J.B. Pardiwala

INTRODUCTION 

In India, the history of women has been a history of not being heard, one that has come to solidify into a mark of showing respect. This has eventually hindered their full participation and late realization of their rights, leading them to grapple till date for their basic fundamental rights. One such entitlement being right to abortion.

Quoting Ruth Bader Ginsburg, “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

Ultimately, this realization was adhered by the Supreme Court of India in the case of Suchita Srivastava v. Chandigarh Administration [2009]. It recognized reproductive rights as integral to women’s dignity and autonomy. The court emphasized that women have the right to make decisions about their own bodies, including whether or not to continue a pregnancy.

Further, expanding the scope of abortion rights in India, the Supreme Court gave a landmark judgment in the case of X v. Principal Secretary, Health & Family welfare, Govt. of NCT Delhi. It ruled that unmarried women as well as survivors of marital rape have the legal right to terminate their pregnancies of 20-24 weeks under Rule 3B of the Medical Termination of Pregnancy [MTP] Rules.

The court emphasized that every woman possesses the right to reproductive autonomy, and allowing or denying termination based on marital status would violate their right to equality [Article 14] under the law. The Supreme Court, while delivering a landmark judgment, emphasized that in a gender-equal society, the interpretation of the MTP Act and Rules must consider current social realities. [1] 

FACT

The present case was an appeal brought before the Supreme Court of India, stemming from the decision made by a Division Bench of the High Court of Delhi on July 15, 2022.

The appellant, X being an Indian citizen permanently resides in Manipur. At the time of filing the Writ Petition before the High Court of Delhi, X was carrying a single intrauterine pregnancy of 24 weeks. X, an unmarried woman aged about 25 years, conceived during a consensual relationship. She sought to terminate her pregnancy as “her partner had refused to marry her at the last stage”, thus making her reluctant to complete the pregnancy due to the “social stigma and harassment” pertaining to unmarried single woman. Moreover, X cited her lack of financial stability as a reason for not being mentally prepared to “raise and nurture the child as an unmarried mother.” [2]

Thus, claiming the following reliefs before the High Court:

  1. Permit her to terminate the ongoing pregnancy through registered medical practitioners before 15.07.2022 as her relief will be of no value after that; 
  2. Protection from the Respondent from taking any legal action against the petitioner or any Registered Medical Practitioner terminating her pregnancy;
  3. Inclusion of unmarried women within the ambit of the Rule 3B of the Medical Termination of Pregnancy Rules 2003 (as amended on 21.10.2021) for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the MTP Act, for a period of up to 24 weeks; 
  4. Order an Interim Relief of Stay during lis pendens. [3]

However, the Delhi High Court considered only prayer (c.) of the Writ Petition, and rejected prayers (a.) and (b.) stating that Section 3(2) (b) of the MTP Act was inapplicable as the facts of the present case where the appellant, being an unmarried woman, got pregnant out of a consensual relationship, were outside its ambit. [4]

Subsequently, aggrieved by the order, the appellant approached the Hon’ble Supreme Court for relief.

ISSUES RAISED

  1. Does the provision in Section 3(2) (b) of the MTP Rules, 2003 raise concerns regarding its compliance with Article 14 of The Indian Constitution?
  2. Can victims of marital rape undergo abortion without needing their husbands’ consent?
  3. Do unmarried women possess the right to terminate a pregnancy as per Article 21 of the Indian Constitution? 
  4. Do Clause C of Rule 3B in the MTP Rules and Section 3(2) (b) of the MTP Act cover unmarried women concerning abortion matters?

CONTENTION

Appellant

Dr. Amit Mishra, learned counsel representing the appellant, argued the following points:

  1. The appellant, an unmarried woman, faced refusal from her partner to marry her. And due to financial constraints—being unemployed with farming parents—she expressed her desire not to continue the pregnancy and raise a child alone. 
  2. Mentally unprepared to raise a child all by herself, she emphasized that doing so would severely harm her physical and mental well-being. Also, she feared the societal stigma attached to unmarried motherhood.
  3. Section 3(2) (b) of the MTP Act and Rule 3B of the MTP Rules are arbitrary and discriminatory as they exclude unmarried women from their ambit, violating Article 14 of the Constitution. [5]

Respondent 

Ms. Aishwarya Bhati, learned senior counsel and Additional Solicitor General has made the following contentions in support of the argument that Rule 3B(c) extends to unmarried or single women who are in long-term relationships:

  1. The legislative interpretation of the statute must be guided by the text, context and the object it seeks to achieve as well as by its Statement of Objects and Reasons;
  2. Laws should evolve with changes in the society and be rather interpreted purposively; 
  3. A subordinate legislation should give effect to the intent of the statute it is enacted under. If more than one interpretation tend to exist, the one consistent with the statute should be considered;
  4. The term “change of marital status” in Rule 3B(c) ought to be interpreted as “change in the status of a relationship” to include unmarried-single women as well as women who are not divorced but have been deserted;
  5. “Live-in relationships” are equivalent to marital relationships because in both, the woman is entitled to maintenance. Further, the children born out of such a relationship is entitled to right of succession. The MTP Act, doesn’t differentiate between married women and unmarried-single women; and
  6. Women enjoy the right to bodily integrity and autonomy, as well as reproductive rights including decisional autonomy. [6]

RATIONALE

The Apex Court bench opined that the Delhi High Court’s understanding of the legislation was limited in scope and overly restrictive and narrow. Therefore, granting the appellant the permission to undergo an abortion, subject to the evaluation of a medical board established by AIIMS Delhi.

The court ruled that a narrow interpretation of Rule 3B, limited only to married women, is discriminatory towards unmarried women and violative of Article 14 of the Constitution. It affirmed that both, an unmarried woman and a married woman, have the same rights of reproductive autonomy, dignity and privacy under Article 21 granting them the right of choice on whether to continue a pregnancy.

Additionally, the Court ruled that women undergoing through a change in their marital status during their ongoing pregnancy are eligible for abortion under Rule 3B(c) of the MTP Rules.

Another observation and decision of the Court in the present case worthy of appreciation is that the court disregarded the difference between rape of an unmarried woman by a man and of a married woman by her own husband, by stating that consent dynamics do not undergo a transformation when one decides to marry. Consequently, the Court clarified that the term ‘rape’ under Rule 3B of the MTP Act includes instances of ‘marital rape’. [7]

DEFECTS OF LAW

Though the judgment of the Supreme Court in the present case is worthy of applauds and is accredited as historic, the Hon’ble Court left the constitutional validity of Exception 2 to Section 375 of the IPC to be decided in other appropriate proceeding.

Exception 2 to Section 375 of the IPC exempts the act of rape by a husband on his wife from falling under the ambit of the offence of rape. Here is an assumption that in a marital relationship, there is always an implied, absolute and irrevocable consent to have sex from the wife’s end. Therefore, to abort a pregnancy arising out of spousal rape, the victim had to seek consent of her husband or approach Courts to obtain order for termination of her pregnancy. Thus, not recognizing marital rape as an offence and not criminalizing it till date. [8]

However, this exception under the IPC is violative of women’s right to personal liberty, dignity, equality etc., under Article 21 of the Constitution.

Nevertheless, the judgment of the Supreme Court in the present case has opened doors of hope for the criminalization of this act.

INFERENCE

The judgment is, nevertheless, a stepping stone towards recognition of women’s right relating to their bodily and reproductive autonomy. It is undoubtedly a progressive one as while the Indian judiciary is giving recognition to legal abortion and is expanding its scope, a developed and highly progressive country like America has recently rolled back abortion rights.

But, the biggest irony about the fight for women’s rights is that women are not a part of the decision making process. The governments and Non-Profits organizations may lead campaign by placing women on the front, but they won’t put a woman in a position of authority to steer the wheel. Men are making laws about women’s bodies and ironically then holding conferences promoting equality. It couldn’t get more biased.

[1] Legal Service India, www.legalserviceindia.com, (20th March, 2024). 

[2] 2022 LiveLaw (SC) 809, 3, www.livelaw.in.

[3] Id at 2.

[4] Id at 3

[5] Id at 4

[6] Id at 4&5

[7] Rashmi Singh & Shreya Singh, X VERSUS THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR, Vol. 31, Supremo Amicus, 2022, www.supremoamicus.org.

[8] Id.

Name- Shilpi Sinha

College- LC-II, Faculty of Law, University of Delhi