[MTP Amendment 2021] While S.3 travels beyond conventional relationships, Rule 3B of MTP Rules does not include unmarried women: Supreme Court

While comparing the Medical Termination of Pregnancy Act 1971 and the new amended 2021 Act, the Supreme Court on Thursday opined that there is an 'evident' gap in the law, as, while Section 3 of the amended Act travels beyond conventional relationships based on marriage, Rule 3B of the MTP Rules does not envisage a situation involving unmarried women, but recognizes other categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.

The top court further noted that the phrase ‘married woman’ has been replaced by ‘any woman’ and the word ‘husband’ by ‘partner’, and said,

"There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women."

These observations came to be made by the Court while allowing an unmarried, over 24 weeks pregnant woman to abort her pregnancy.

The 24-year old woman had moved initially moved a writ petition before the Delhi High Court, and on July 15, 2022, a division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad refused to allow her plea seeking direction to terminate the ongoing pregnancy.

Relying on the case of Suchita Srivastava vs. Chandigarh Administration, the top court on Thursday reiterated that a woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution and she has a sacrosanct right to bodily integrity.

On the decision of the High Court, a bench of Justices Chandrachud, Surya Kant and Bopanna noted 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", said the bench.

Court further opined that Parliament by amending the MTP Act intended to include unmarried women and single women within the ambit of the Act as was evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act.

Adverting to the facts of the present case, the bench found that the petitioner had submitted that she was deserted by her partner at the last stage in June 2022 causing her immense mental agony, trauma, and physical suffering.

Justice Chandrachud led bench also noted that Explanation I of Section 3(2) of the Act expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy.

"The Parliamentary intent, therefore, is clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship", held the top court.

Case Title: X vs. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT GOVT. OF NCT OF DELHI AND ANR.