Special Leave to Appeal (C) No.12612/2022-SC-Woman’s right to reproductive choice is inseparable part of her personal liberty under Article 21 of Constitution: SC allows unmarried woman to terminate 24-week pregnancy; asks AIIMS to constitute Medical Board Justices D.Y.Chandrachud, Surya Kant & A.S.Bopanna [21-07-2022]

Read Order: X  vs.  THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT & ANR.

Tulip Kanth

New Delhi, July 22, 2022: In a significant ruling, while observing that there is no basis to deny unmarried women the right to medically terminate the pregnancy, the Supreme Court has allowed an unmarried pregnant woman to terminate her 24-week pregnancy after the Medical Board concludes that the fetus can be aborted without danger to the life of the woman.

While modifying the direction of the Delhi High Court declining to grant interim relief to the woman in this matter pertaining to the Medical Termination of Pregnancy Act, 1971, the Larger Bench of Justice D.Y.Chandrachud, Justice Surya Kant and Justice A.S.Bopanna said, “ Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman. 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 which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act.”

The petitioner, currently residing in Delhi, had averred that she was in a consensual relationship and, in the month of June 2022 she learnt that she was pregnant. Later, her relationship failed and when an ultrasound scan revealed a single intrauterine pregnancy of a term of twenty-two weeks, the petitioner decided to terminate the pregnancy. She stated that in the absence of a source of livelihood, she would be unable to raise and nurture a child. She moved a writ petition before the High Court of Delhi but the High Court did not permit her  to terminate her ongoing pregnancy.Aggrieved thereby, the present petition was filed by her.

The High Court had held that since the petitioner is an unmarried woman whose pregnancy arose out of a consensual relationship, her case was “clearly not covered” by any of the clauses of Rule 3B of the Medical Termination of Pregnancy Rules, 2003, and as a consequence, Section 3(2)(b) was not applicable. The Apex Court did not affirm this view and held that the High Court had taken an unduly restrictive view of the provisions of clause (c) of Rule 3B. Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. The expression “change of marital status” should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it, noted the Bench.

It was further asserted by the Bench that the Parliament by amending the MTP Act through Act 8 of 2021, intended to include unmarried women and single women within the ambit of the Act and the same was evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act.

Considering that in this case, the petitioner was deserted by her partner at the last stage causing her immense mental agony, trauma, and physical suffering, the Bench opined that  excluding unmarried women and single women from the ambit of the statute goes against the purpose of the legislation.

Referring to its Judgment in Suchita Srivastava v Chandigarh Administration wherein  a woman’s right to reproductive autonomy has been recognised as  a dimension of Article 21 of the Constitution ,the Apex Court said, “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.”

Thus, the Bench asked the Director of the All India Institute of Medical Sciences, Delhi to constitute a Medical Board. The Bench held that in the event the Medical Board concludes that the fetus can be aborted without danger to the life of the petitioner, a team of doctors shall carry out the abortion.