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India grants unmarried women RIGHT to ABORTION
X Vs The Principal Secretary Health and Family Welfare Department
Petition(s) for Special Leave to Appeal (C) No(s). 12612/2022
About/from the judgment:
The top court allowed an unmarried woman, who became pregnant due to consensual sex, to abort her 24-week-old foetus.
Beneficial provisions of the Medical Termination of Pregnancy Act cannot be denied to a woman solely on the ground that she is unmarried, the Supreme Court held while allowing an unmarried woman, who became pregnant due to consensual sex, to abort her 24-week-old foetus.
The Court overturned a July 15 decision of the Delhi High Court which had declined to permit the abortion on the ground that the length of pregnancy had exceeded 20 weeks which is the outer limit laid down by the Medical Termination of Pregnancy Act (MTP Act) and the MTP Rules for termination of pregnancy arising from consensual sexual relationships.
The High Court had said that Section 3(2)(b) of the Act is not applicable to the facts of this case since an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered in cases beyond 20 weeks.
However, the top court said that the law has to be given a broad interpretation and the intention of the parliament should be examined.
In this regard, the Court noted that the Amendment Act of 2021 had inserted an explanation to the Section 3(2)(a) of MTP Act which uses the words 'woman or her partner' instead of 'husband'.
The Court read this along with clause (c) of Rule 3B which allows termination of pregnancy in case of change in marital status. The clause has words 'widowhood' and 'divorce' in brackets.
"The parliamentary intent is not to confine beneficial provision of the Act only to a matrimonial relationship. In fact any woman or her partner would indicate that broad meaning has been escribed by the parliament by keeping in mind broad bodily autonomy of a woman in consonance with Article 21," the Court observed.
It, therefore, said that allowing the petitioner to suffer an unwanted pregnancy will go against the parliamentary intent and it cannot be denied to her only on the basis of her being unmarried and being married or unmarried has no nexus to the object sought to be achieved.
The Court, therefore, directed the Director of All India Institute of Medical Sciences (AIIMS) to form a medical board in terms of provisions Section 3 of MTP Act preferably by tomorrow.
In the event the medical board concludes that foetus can be aborted without danger to life of petitioner, AIIMS shall carry out abortion, the Court said.
The petitioner, who hails from Manipur and currently a resident of Delhi, had moved the Delhi High Court after she came to know about her pregnancy.
However, the division bench of the High Court had refused relief to the woman, holding that an unmarried woman who is carrying a child out of a consensual sexual relationship cannot be permitted to terminate pregnancy older than 20 weeks.
"The Petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case," the Court said in its order.
As per the MTP Rules, only victims of rape, minors, women whose marital status changed during pregnancy, mentally-ill women, or women with foetal malformation are allowed to terminate pregnancy upto 24 weeks.
The High Court added that, as of today, the Rule 3B MTP Rules does not allow termination of pregnancy of an unmarried woman beyond 20 weeks and therefore, the Court cannot go beyond the statute.
However, the High Court kept the petition pending and issued notice to Delhi's Health and Family Welfare Department directing it to file its response on the petition by August 26.
The High Court had said that notice was limited only to the prayer in the petition that seeks to include unmarried woman within the ambit of the Rule 3B of the MTP Rules.
During the course of hearing, the judges had orally remarked that termination of pregnancy at this stage will virtually amount to killing the child.
The CJ-led bench had suggested that the child can be given up for adoption.
“Why are you killing the child? There is a big queue for child adoption,” the Chief Justice Sharma had said.
The woman then moved the Supreme Court in appeal.
The Supreme Court while allowing the plea observed that the High Court took an unduly restrictive view in interpreting the MTP Act and Rules.
Read the Judgment
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