Pregnancies up to 24 weeks of unmarried women arising out of consensual relationships not covered under MTP Act: Delhi HC

New Delhi: Turning down the plea of medical termination of pregnancy for a 25-year-old pregnant woman, the Delhi High Court bench recently held that pregnancies up to 24 weeks of unmarried women, arising out of consensual relationships are not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003.

However, the bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad has agreed to consider the plea urging to include unmarried women within the ambit of the Rule 3B of the Medical Termination of Pregnancy Rules 2002 for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the MTP Act, for a period of up to twenty-four weeks.

Issuing notice in the matter, the bench has listed the matter for further hearing on August 26.

Such observations came from the HC bench while it was considering a plea by a 25 years old unmarried woman who is carrying a single intrauterine pregnancy corresponding to gestation age of 23 weeks 5 days. The 24 weeks' period of pregnancy, as stipulated under the Medical Termination of Pregnancy Act, 1971, was due to be completed on 18.07.2022.

The petitioner, who hails from Manipur and currently stays in New Delhi, submitted before the Court that her pregnancy arose out of a consensual relationship. She informed the Court that she could not give birth to the child since she is an unmarried woman and her partner has refused to marry her. 

Stating that giving birth out of wedlock will entail in her ostracisation and cause her mental agony, she also submitted that she is solely B.A graduate who is non-working and she will not be able to raise and handle the child. She also stated that not being mentally prepared for being a mother, continuing with the pregnancy will lead to grave physical and mental injury for her. She also informed the court that in case she continues with the pregnancy, it would not be possible for her to get married in the future because of her child and the ensuing social stigma.

The petition had been opposed by the State, which had argued that Section 3(2) (b) of the Medical Termination of Pregnancy Act, 1971 was not applicable for the petitioner.

After taking note of the submissions made by the petitioner, the HC bench referred to Medical Termination of Pregnancy Act, 1971, which governs termination of certain pregnancies by a registered Medical Practitioners. Section 3 of the Act provides for circumstances where pregnancies can be terminated by registered Medical Practitioners. Referring to this, the Court noted, "A perusal of Section 3(2) (a) of the Act provides that the Medical Practitioner can terminate the pregnancy, provided, the pregnancy does not exceed 20 weeks. Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks."

"A perusal of Section 3 (2) (b) of the Act provides that the said sub Section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003," noted the bench.

Referring to Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which permits termination of pregnancy up to 24 weeks the bench observed, "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."

As per Rule 3B of the Medical Termination of Pregnancy Rules, 2003, women who are eligible for termination of pregnancy up to twenty-four weeks include- survivors of sexual assault or rape, minors, whose marital status changes during the ongoing pregnancy, women with physical disabilities, mentally ill and retarded women, foetal malformation, women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.

Also Read: Performing MTP Beyond 24 Weeks: What Doctors need to know

It had been argued by the counsel for the petitioner that the need for permission from the Court would not have been necessary if she had been a widow or a divorcee and not an unmarried woman. Referring to the legislative intent of amending Section 3(2)(b) in 2021, the petitioner argued that the amended law permitted termination of pregnancy considering the new medical advancements.

The counsel for the petitioner argued that the 2021 amendment had substituted the word "husband" with "Partner" and the law intended to cover unmarried woman too. However, the Court observed that the Rules, as of now, do not cover unmarried women.

At this outset, the counsel for the petitioner contended that Rule 3B of the Medical Termination of Pregnancy Rules, 2003 is violative of Article 14 of the Constitution of India, 1950, inasmuch as it excludes an unmarried woman.

However, the Court noted, "Whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court."

Therefore, granting no interim relief to the petitioner, the bench dismissed the plea and noted, "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."

Although the bench turned down the request for an interim relief, it has issued notice on the prayer seeking directions for including unmarried woman within the ambit of the Rule 3B of the Medical Termination of Pregnancy Rules 2002 for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the MTP Act, for a period of up to twenty-four weeks.

The matter would be heard next on August 26.

As per the latest media report by Live Law, while reserving the order, the bench had earlier suggested that since the petitioner had passed significant period of the pregnancy, she should consider delivering the child and giving it in adoption. It had observed, "Why are you killing the child? There are big queue for adoptions...We are not forcing her (Petitioner) to raise the child. We will ensure that she goes to a good hospital. Her whereabouts will not be known. You give birth and come back."

Medical Dialogues had earlier reported about the Medical Termination of Pregnancy (Amendment) Act, 2021. As per the 2021 Act, those women who will be termed to be eligible to terminate their pregnancies up to twenty-four weeks are- 

"The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:-
(a) survivors of sexual assault or rape or incest;
(b) minors;
(c) change of marital status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) mentally ill women including mental retardation;
(f) the 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
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government."

To view the order, click on the link below.

https://medicaldialogues.in/pdf_upload/delhi-hc-mtp-181178.pdf

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