MTP cannot be denied merely because woman is unmarried: Supreme Court relief to 24 weeks pregnant woman
New Delhi: Dismissing the Delhi High Court order which had barred an unmarried woman from terminating her 24-weeks pregnancy from a consensual relationship, the Supreme Court on Thursday provided ad-interim relief and allowed her for abortion.
However, the nod from the top court bench is subject to the nod from AIIMS Delhi medical board, which must conclude that the abortion would not cause any risk to the life of the woman.
Apart from this, the bench also expressed its opinion that the High Court had opted for an "unduly restrictive view" to note that Rule 3(b) of Medical Termination of Pregnancy Rules, 2003 mentions about "change in marital status" of woman, followed by expressions of widowhood or divorce. The top court opined that the expression "change in marital status" must be given a "purposive interpretation."
Referring to the fact that a widow or a divorcee woman is allowed aborting her pregnancy in up to 24 weeks, the top court bench opined that the Parliamentary intent was not to restrict the reliefs to only marital situations.
At this outset, the bench comprising of Justices DY Chandrachud and Surya Kant also referred to the 2021 amendment of the Medical Termination of Pregnancy Act, which uses the word "partner" instead of "husband" in the explanation to Section 3.
Besides, the top court also observed that the Courts cannot be unmindful of the legislative intent behind the amendment to Explanation 1 to the Section 3 of the Medical Termination of Pregnancy Act. The concerned amendment addresses unwanted pregnancy by failure of method or device used by woman or her "partner" for preventing pregnancy.
Notice has been issued by the top court bench to the Union Government in this regard. The bench has sought the assistance of Additional Solicitor General Aishwarya Bhati on the legislative interpretation.
Medical Dialogues had earlier reported that seeking permission to terminate her 24-week-old fetus, an unmarried woman had recently approached the Supreme Court after the Delhi High Court dismissed her prayer.
The plea in the Supreme Court addressed the question if unmarried women can terminate their pregnancies up to 20 weeks, if the pregnancies are a result of consensual relationships.
Earlier while considering the plea, the Delhi High Court had 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. Referring to Section 3 of the Medical Termination of Pregnancy Act, 1971, which governs
The High Court earlier rejected the woman's plea stating that the termination of certain pregnancies by registered Medical Practitioners, the HC bench had 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 the 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 ( MTP) Rules, 2003, which permits termination of pregnancy up to 24 weeks the bench had 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.
However, despite the dismissal from the High Court the petitioner did not lose hope and being concerned about her physical and mental health condition at the 24 weeks of her pregnancy, she approached the Supreme Court and submitted a plea seeking for termination.
The petitioner submitted before the top court bench that she is the eldest among 5 siblings and her parents are agriculturists. She also referred to the fact that having no source of livelihood, she would be unable to raise and nurture the child.
As per the latest media report by Live Law, while considering the plea, the top court bench on Thursday passed an ad-interim order allowing the pregnant woman to abort her pregnancy of 24 weeks. However, the Supreme Court nod is subject to the decision of a medical board constituted by AIIMS Delhi medical board, which must conclude that the termination of the pregnancy would not cause a risk to the life of the woman.
Opining that the Delhi HC bench had taken a "unduly restrictive" view while dismissing the plea, the top court bench referred to the 2021 amendment of the Medical Termination of Pregnancy Act, which uses the word "partner" instead of "husband" in the explanation to Section 3.
Observing that the inclusion of the word "partner" shows legislative intent to cover "unmarried woman" under the Act, the bench noted, "The use of words "woman or her partner" shows an intention to cover unmarried woman which is in consonance with Article 14 of the Constitution."
Therefore, the bench granted relief to the Petitioner as it held that "Petitioner should not be denied the benefit merely on the ground that she is an unmarried woman."
Further holding that allowing the petitioner to suffer from an unwanted pregnancy would be contradictory to the object and spirit of the legislation, the Supreme Court bench noted, "We are of the view that allowing the petitioner to suffer an unwanted pregnancy will go against the parliamentary intent and the benefits under the Act cannot be denied to her only on the basis of her being unmarried. The distinction between a married and an unmarried woman has no nexus to the object sought to be achieved by the Parliament."
The top court has issued the following directions:
(1) AIIMS Delhi Director has been directed to set up a medical board in compliance of the Section 3(2)(d) MTP Act during the course of July 22.
(2) If the Medical Board concludes that the pregnancy can be terminated without causing any danger to the life of the petitioner, AIIMS shall carry out the abortion in terms of the petition. Following the completion of the procedure, the court has also directed to furnish a report.
