X
VERSUS
THE PRINCIPAL SECRETATRY, HEALTH AND
FAMILY DEPARTMENT, GOVT OF NCT DELHI &
ANR
SPECIAL LEAVE PETITION (CIVIL) No. 12612 of
2022
RIGHT TO ABORTION
ABSTRACT
This narrative is the case summary of the judgment pronounced by the Supreme Court
in the case X v The Principal Secretary, Health and Family Department, Govt of NCT,
Delhi & Anr. This is a landmark judgement in which the Supreme Court held that
unmarried women could terminate their pregnancy under Rule 3B of the Medical
Termination of Pregnancy Act, 1971, thereby giving it a much wider interpretation.
The Supreme Court of India has interpreted the provisions to include unmarried
women under the purview of the MTP Act, 1971 and the Rules, 2003 and 2021. The
court held that all women have a right to reproductive autonomy and that the
termination of pregnancy based on marital status was not feasible as it would violate
their right to equality. This judgement has been revolutionary because it has
emphasised the constitutional rights of Articles 14 and 21 to all women. The right to a
life with dignity while upholding the fundamental right of equal rights and equal
protection before law are two important facets that have been highlighted in this
judgement.
1.PRIMARY DETAILS OF THE CASE
Case No. : C.A. No.- 005802-005802/2022
Jurisdiction : Supreme Court of India
Case Decided On : 21st July, 2022
Chief Justice D. Y. Chandrachud,
Justice A.S. Bopanna,
Judges : 2.
Justice J.B. Pardiwala
Legal Provisions Involved : Article 14, Article 21, MTP Act 1971
Anupa Kharabe,
Case Summary Prepared By :
ILS Law College, Pune
BRIEF FACTS OF THE CASE
The present case was an appeal before the Supreme Court of India, arising out of the
judgement of a Division Bench of the High Court of Delhi dated 15 July 2022. The
appellant is an Indian citizen and a permanent resident of Manipur. She is an
unmarried woman aged about twenty-five years old. She invoked the writ jurisdiction
of the High Court of Delhi to seek permission of the Hon’ble High Court to terminate
her pregnancy before the completion of 24 weeks as on 15 July 2022. The appellant
became pregnant, out of wedlock, as a result of a consensual relationship. She wanted
to terminate her pregnancy owing to the “social stigma and harassment” in the society
against unmarried single parents (especially women), as “her partner had refused to
marry her at the last stage”.
The appellant further contended that she, being an unemployed graduate, was not
ready to raise a child as an unmarried single mother and the continuation of the
pregnancy would involve a “risk of grave and immense injury to her mental health”.
However, the High Court of Delhi, by its order dated 15 July 2022, rejected the prayer
of the appellant to grant permission for terminating her pregnancy and to prevent the
respondents from taking any coercive action or criminal proceeding against the
appellant or the Registered Medical Practitioner for terminating the appellant’s
pregnancy, observing that the Medical Termination of Pregnancy Act 1971 did not
apply to the appellant’s case since she was not covered by or under any sub-clause of
Rule 3B of the MTP Rules.
Aggrieved by the order of the High Court, the appellant appealed before the Hon’ble
Supreme Court. The Supreme Court, vide order dated 21 July 2022, modified the
order of the High Court and thereby permitted the appellant to terminate her
pregnancy, only after a Medical Board constituted under the All-India Institute of
Medical Sciences (AIIMS) opines that the pregnancy could be terminated without
danger to the life of the appellant.
3. ISSUES INVOLVED IN THE CASE
I. Whether unmarried women are included under clause (c) of Rule 3B of the MTP
RULES and in section 3(2)(b) of MTP ACT
II. Whether the exclusion of unmarried woman from their right of termination of
unwanted pregnancy is a violation of their right to equality under Article 14 of the
Indian constitution.
III. Whether the right of unmarried women to terminate an unwanted pregnancy is
covered under Right to Life under Article 21 of the Indian Constitution.
4. ARGUMENTS OF THE PARTIES
Appellant
Dr. Amit Mishra, the learned counsel appearing on behalf of the petitioner made the
following submissions:
The petitioner is an unmarried woman, whose partner deserted her and refused
to marry her.
The petitioner wishes to terminate unwanted pregnancy and there should be no
bar on the same.
The petitioner is financially incapable to maintain a child which will put the
child’s future in jeopardy.
The petitioner is not mentally prepared to give birth to child in her adverse
situation.
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, thereby
violating Article 14 of the Constitution of India as they are discriminative
against women on grounds of their marital status.
Respondent
Ms. Aishwarya Bhati, the learned senior counsel and Additional Solicitor General
assisted the Court in the interpretation of Section 3(2)(b) of the MTP ACT and Rule
3B(c) of the MTP rules. The following submissions were made in support of the
argument that Rule 3B(c) already includes the unmarried or single women who are in
long continuing relationships:
It is important to understand intention of the legislature to understand the law
and evaluate whether the inclusion of unmarried women for the abortion
procedure is warranted. Here, the intention is to include all women. The literal
meaning is not always the right one, sometimes a liberal interpretation is
important.
If an Act is in place and it contains subordinate rules which are for the effective
implementation, in it can be said that in case of the MTP Act, the Rules support
the Act and are within its limits. In the case of a conflict arising between the
Act and the Rules, then the ACT shall prevail. The MTP Act and the MTP
Rules given by the Amendment of 2021, the very specific wordings were
changed: married woman was changed to “any woman” and husband was
changed to “partner”. This very clearly shows it includes unmarried women. It
can also be concluded the ambit is not limited to a marital relationship but that
it includes any person who can be considered a partner and not necessarily a
husband, given that the relationship was consensual.
To ensure the inclusion of unmarried or single women, the term “change of
marital status” in Rule 3B(c) should be interpreted as a “change in the status of
a relationship.” It would also include women separated from their spouses or
those still undergoing divorce proceedings.
Live-in relationships hold the same value as marital relationships in the eyes of
the law, as both entitle women to maintenance. Several statutes, like MTP Act,
do not differentiate between married or unmarried women.
Women have the right to both bodily autonomy and independence and to
choose whether to procreate. They are entitled to make their own decisions
with no constraints. Even in the case of an unmarried woman, she cannot be
forced to carry an unwanted pregnancy to term by anyone. This decision
remains her absolute right without any prejudice or bias.
5. LEGAL ASPECTS INVOLVED IN THE CASE
The following sections of the MTP Act and its amendments were discussed in this
case:
Section 3(2)(b) of the MTP Act: It states that abortion can be allowed under
two circumstances-
Where any pregnancy is alleged by the pregnant woman to have been caused
by rape, the anguish caused by such pregnancy shall be presumed to constitute
a grave injury to the mental health of the pregnant woman.
and
Where any pregnancy occurs as a result of failure of any device or method used
by any married woman or her husband for the purpose of limiting the number
of children, the anguish caused by such unwanted pregnancy may be presumed
to constitute a grave injury to the mental health of the woman.
Rule 3B(c) of the MTP Rules, Amendment of 2021: This rule lays down
guidelines as to which women are eligible for termination of pregnancy up to
24 weeks.
The following Articles of the Indian Constitution were discussed in this case:
Article 14: This Article provides for equality before the law or equal protection
of the laws within the territory of India.
Article 21: This Article enshrines the right of all citizens to live a dignified life
without undue interference from the State or any individuals.
6. JUDGMENT IN BRIEF
The court while interpreting Rule 3B of the MTP Rules observed that there is no logic
behind excluding unmarried or single women from the ambit of the provision and
such a narrow interpretation leads to violation of Article 14 of the Constitution. The
court held, "A narrow interpretation of Rule 3B, limited only to married women,
would render the provision discriminatory towards unmarried women and violative of
Article 14 of the Constitution. Article 14 requires the state to refrain from denying to
any person equality before the law or equal protection of laws. Prohibiting unmarried
or single pregnant women (whose pregnancies are between twenty and twenty-four
weeks) from accessing abortion while allowing married women to access them during
the same period would fall foul of the spirit guiding Article 14."
Giving a blow to the orthodox and patriarchal notions attached to the pregnancy of an
unmarried woman, the Court observed that, “The law should not decide the
beneficiaries of a statute based on narrow patriarchal principles about what constitutes
“permissible sex”, which creates invidious classifications and excludes groups based
on their personal circumstances. The rights of reproductive autonomy, dignity and
privacy under Article 21 give an unmarried woman the right of choice on whether to
bear a child, on the similar footing of a married woman. “The Court also laid down
that women who are going through a change in their marital status during their
ongoing pregnancy shall also be eligible to terminate or abort their pregnancy under
Rule 3B(c) of the MTP Rules.
The judgement intends to significantly elevate the right to privacy and dignity as
guaranteed by Article 21 of the Constitution, as well as the physical and reproductive
autonomy of pregnant women. The freedom to choose whether to have children is
guaranteed under Article 21 for both married and unmarried women equally.
Another observation and decision of the Court in the present case which is worthy of
appreciation is that not just unmarried or single women, but even married women may
also form part of the class of survivors of sexual assault or rape. It was held that, "A
woman may become pregnant as a result of non-consensual sexual intercourse
performed upon her by her husband. We would be remiss in not recognizing that
intimate partner violence is a reality and can take the form of rape. The misconception
that strangers are exclusively or almost exclusively responsible for sex- and gender-
based violence is a deeply regrettable one."
The court disregarded the difference between rape of an unmarried woman by a man
and that of a married woman by her own husband and the assumption that a husband
can never commit rape on his wife, by observing that, “The ordinary meaning of the
word ‘rape’ is sexual intercourse with a person, without their consent or against their
will, regardless of whether such forced intercourse occurs in the context of
matrimony.” It also observed that “The nature of sexual violence and the contours of
consent do not undergo a transformation when one decides to marry.”
The Court held that the term ‘rape’ under Rule 3B of the MTP Act includes ‘marital
rape’ too. "Notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the
words “sexual assault” or “rape” in Rule 3B(a) includes a husband’s act of sexual
assault or rape committed on his wife. The meaning of rape must therefore be
understood as including marital rape, solely for the purposes of the MTP Act and any
rules and regulations framed thereunder."
It was further held that in order to attain the benefit under Rule 3B(a) of the MTP
Rules, a woman does not necessarily need to seek recourse to formal legal
proceedings for the purpose of proving 'factum of sexual assault, rape or incest'. It is
also not necessary to register an FIR or prove the allegations of rape in any court of
law before it could be considered true for the purpose of the MTP Act.
7. COMMENTARY
This case is a great example liberal, progressive, and equitable interpretation of law
propounded by the Supreme Court. This judgement is truly a landmark one as it also
talks about the importance of preserving the mental health as well as physical health.
The court while delivering this judgment reiterated that distinction based on marital
status for termination of pregnancy is ‘artificial and constitutionally unsustainable’. It
imposes a stereotype that only married women are sexually active. While the
evolution of society is towards gender equality, the interpretation of rule and laws
must the social context.
Another aspect of the judgement that has been much appreciated is that it recognizes
the right of an be done on the same basis. Laws, therefore, must be changing
according to the needs of the people and unmarried woman to terminate her pregnancy
arising out of a consensual relationship. The Court interpreted Rule 3B of the MTP
Rules (categories of women who can seek abortion of pregnancy of 20-24 weeks) as
inclusive of unmarried women whose pregnancy arises out of consensual relationship.
They are considered eligible for termination of their pregnancy under the category of
women who go through a change in their marital status during their ongoing
pregnancy.
With the increasing need for reform in Indian Criminal Laws for recognition of
marital rape as an offence, the judgement of the Supreme Court in the present case has
opened doors of hope for the criminalization of this act. The Hon’ble Court did not
criminalize marital rape yet and has left it for the Legislature to decide and recognize
it as an offence or not. However, the Court recognized marital rape as falling under
the category of ‘rape’ for the purposes of the MTP Act, particularly for Rule 3B(a) of
the MTP Rules, thereby, allowing victims of marital rape to terminate their pregnancy
of up to 24 weeks.
The judgement is, therefore, a stepping stone towards recognition of women’s right
relating to their bodily and reproductive autonomy.
8. IMPORTANT CASE REFERRED
Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors. AIR 2017
SC 4161
Suchita Srivastava v. Chandigarh Administration (2009) 14 SCR 989,
S Khushboo v. Kanniammal (2010) 5 SCC 600
Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461
