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Synopsis

To what may be called otherwise as a historic day, a decision that will affect women across the country, a Bench of Justice Dr. D.Y Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala recognised a series of life changing facets that women from every walk of life faced.

The Court held:

-that even unmarried women are eligible to seek termination of pregnancy of 20-24 weeks, from a consensual relationship.

-to extend benefit of Rule 3B(b) Medical Termination of Pregnancy Rules, to all women under 18 years of age.

-meaning of rape to include marital rape.

The Court was of the opinion that when a choice is available to other women, then excluding unmarried women from the purview, is unreasonable and unconstitutional, when the issue pertains to health.

The Bench took note of the objects and reasons that MTP Amendment Act 2021, that primarily puts forth, where the object is to ensure safety and provide safeguards to legal abortions to reduce maternal mortality and morbidity. 

The Bench further asked to ensure that the benefit of Rule 3B(b) is extended to all women under 18 years of age who engage in consensual sexual activity, it is necessary to harmoniously read both the POCSO Act and the MTP Act.

In the matter, it was noted that not including unmarried pregnant women in the Rules, who have conceived out of a consensual relationship, is unconstitutional. Further considering the amendment to the MTP Act, the Court highlighted the fact that, the Act does not make any disparity between a married and an unmarried woman.

The Court made very important observations in the matter:

"...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".

"The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women...".

"...The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party."

"The unamended MTP Act of 1971 was largely concerned with “married women”, as evident from paragraph 1 of its Statement of Objects and Reasons, which stated that most of the women seeking abortions were married, and thus “under no particular necessity to conceal their pregnancy.” Significantly, the 2021 Statement of Objects and Reasons does not make a distinction between married and unmarried women. Rather, all women are entitled to the benefit of safe and legal abortions".

"Women may undergo a sea change in their lives for reasons other than a separation with their partner (Rule 3B(c)), detection of foetal “abnormalities” (Rule 3B(f)), or a disaster or emergency (Rule 3B(g))...Moreover, a woman may suddenly be diagnosed with an acute or chronic or life-threatening disease, which impacts her decision on whether to carry the pregnancy to term. If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women".

"Notwithstanding Exception 2 to Section 375 of the IPC,85 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"

The Court gave due consideration to each aspect associated with the situation at hand. Every situation that could arise, could impede or might arise in due course of time, for instance, financial issues, social stigma attached, the need for abortion for heath, and lack of awareness. The Court opined,

"True realization of reproductive autonomy is possible only by addressing problems in the societal contexts within which individuals, particularly women, are situated. It is not only social stigma which prevents women from realizing the right to health but also caste and economic location. The cost of an abortion at a private hospital may be prohibitive for those whose monthly salaries are a fraction of that cost. Public hospitals in rural areas are often not equipped with the resources to provide the kind and quality of healthcare that ought to be provided free of cost or at highly subsidized rates. A lack of awareness about the resources that public hospitals offer coupled with the discriminatory attitudes of many health providers only serve to exacerbate this problem".

Background: The Court was to decide why and how an unmarried girl who suffers unwanted pregnancy has been excluded from Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (Women eligible for termination of pregnancy up to twenty-four weeks). 
Earlier, the Supreme Court had allowed termination of the pregnancy subject to the medical opinion while keeping the aspect of including unmarried women within the ambit of Rule 3B of the Medical Termination of Pregnancy Rules 2003 (as amended on 21.10.2021) for termination of pregnancy, open.

 

Case Title: X vs. The Principal Secretary Health and Family Welfare Department Govt. of NCT of Delhi and Anr.