Article

“The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child.” – Supreme Court of India.

The law of abortion in India, as on date, lays down that a Medical Practitioner can terminate the pregnancy, provided, the pregnancy does not exceed 20 weeks [Section 3(2) (a) of the Medical Termination of Pregnancy Act, 1971 (“1971 Act”)]. Where the pregnancy exceeds 20 weeks but does not exceed 24 weeks, pregnancy may be terminated if not less than two registered medical practitioners, in good faith, are of an opinion 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 or there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality [Section 3(2) (b) of 1971 Act]. The law further lays down the presumption that 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, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. [Explanation 1 to Section 3(2) of the 1971 Act]

As per Rule 3B of the Medical Termination of Pregnancy Rules, 2003 certain cases shall be considered eligible for termination of pregnancy under section 3(2)(b) of the 1971 Act. They are – survivors of sexual assault or rape or incest; minors; women whose marital status changed during the ongoing pregnancy (widowhood and divorce); women with physical major disabilities as per criteria laid down under the Rights of Persons with Disabilities Act, 2016; women with mental illness including mental retardation; Women developing foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

A Division Bench of Delhi High Court comprising of Justices Sathish Chandra Sharma, CJ and Subramonium Prasad, J recently came across a pressing question where the Petitioner, an unmarried woman of 25 years, in her interim application in the Writ sought the relief of termination of pregnancy ( being 24 weeks pregnant) that arose out of a consensual relationship. that did not last. The Court dismissed the application and declined the interim relief stating that “As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself.” [Ms. X v. The Principal Secretary Health And Family Welfare Department, Government of India W.P.(C) 10602/2022 CM APPL. 30708/2022 decided on 15.07.2022]

The Hon’ble Supreme Court in the appeal against the said order of the Hon’ble High Court [X v. Health And Family Welfare Department, Special Leave to Appeal (C) No(s).12612/2022] passed an order dated 21.07.2022 observing that the order of the High court was unduly restrictive. Although the Court observed that Rule 3B of the 2003 Rules does not contemplate a situation involving unmarried women, the Court also did not find any reason to deny the relief to an unmarried woman. The Court cited the following reasons:

• the legislature has not intended to make a distinction between a married and unmarried woman;
• same choice is available to other categories of women;
• the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament under the Legislation;
• The Parliamentary intent, is not to confine the beneficial provisions of the 1971 Act only to a situation involving a matrimonial relationship;
• Parliament by amending the 1971 Act in 2021 intended to include unmarried women and single women within the ambit of the Act which is evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act;
• allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament;
• allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute;
• Explanation 1 to Section 3 of the Act – Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy;
• The expression “change of marital status” in clause (c) of Rule 3B should be given a purposive rather than a restrictive interpretation and expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes;
• Now even live-in relationships have been recognized by the Supreme Court. [In S Khusboo v. Kanniammal (2010) 5 SCC 600 it was held that “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”]

The Court in unequivocal terms has laid down the law that “A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity.”The Court further observed that denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.

The Court while delivering the judgment relied on Suchita Srivastava v Chandigarh Administration [(2009) 9 SCC 1]wherein the Court had held that “If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health”. Similarly, in Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, [(2017) 10 SCC 1], the Court had held that the decision of a woman to procreate or abstain from procreating has been recognized as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution.