Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and JB Pardiwala, JJ, while holding that unmarried or single women have the right to safe abortion as much as the married women, went into a detailed discussion around the equal status of married and unmarried or single women for the purpose of the Medical Termination of Pregnancy laws.

While the Court gave a purposive interpretation to Rule 3B(c) of the Medical Termination of Pregnancy Rules, 2003 (MTP Rules) and observed that “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”, it also went ahead to include married women under the scope of Rule 3B(a) i.e. ‘survivors of sexual assault or rape or incest’.

https://www.scconline.com/blog/post/2022/09/29/unmarried-persons-women-cannot-be-denied-right-abortion-based-on-patriarchal-principles-about-permissible-sex-supreme-court-chundrachud-legal-research-updates-news/

This observation of the Court is particularly interesting as the challenge to Exception 2 to Section 375 of the IPC is already pending consideration before the Supreme Court. While the Court left the constitutional validity to be decided in the appropriate proceeding, it observed,

“It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375. Understanding “rape” under the MTP Act and the rules framed thereunder as including marital rape does not have the effect of striking down Exception 2 to Section 375 of the IPC or changing the contours of the offence of rape as defined in the IPC.”

The Court explained that Rule 3B(a) is based on an acknowledgement of the reality that survivors of sexual assault, rape, or incest may face immense stigma if and when they share the fact of their assault with others, including family members. Many survivors, including minors, may not even be aware that pregnancy is a possible consequence of rape. Hence, the delay in revealing the fact that a man has raped them may lead to a delay in discovering the pregnancy. Resultantly, the woman in question may be unable to access medical facilities in a timely fashion and may therefore find herself unable to terminate the pregnancy before the completion of twenty weeks.

In the context of marital rape, the Court held that married women may also form part of the class of survivors of sexual assault or rape.

“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. 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. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women.”

Considering the history of offences against women in India, including sexual assault by family members, the Court observed that it is not inconceivable that married women become pregnant as a result of their husbands having “raped” them.

“The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors.”

The Court also made clear that in order to avail the benefit of Rule 3B(a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant woman can access an abortion. Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act. In fact, Explanation 2 triggers the legal presumption as to mental trauma “where any pregnancy is alleged by the pregnant woman to have been caused by rape.”

Taking note of all these factors, the Court, hence, held that 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. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 1321, decided on 29.09.2022]


*Judgment by: Dr. Justice DY Chandrachud

For Petitioner(s): Advocate Dr. Amit Mishra

For Respondent(s): ASG Aishwarya Bhati

Also Read 

https://www.scconline.com/blog/post/2022/07/22/unmarried-woman-cannot-be-denied-right-to-safe-abortion-supreme-court-delhi-high-court-termination-of-pregnancy-legal-laws-news-research-updates/

Case BriefsSupreme Court

“Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental wellbeing.”

Note: The Court has used the term “woman” in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.

Supreme Court: An unemployed unmarried woman found out in June that she was pregnant. In the same month her partner abandoned her. Delhi High Court held that she does not have a right to a safe abortion as her case was “clearly not covered” in any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (MTP Rules).

When the matter reached before the Supreme Court, on 21.07.2022 the 3-judge bench of Dr. DY Chandrachud, Surya Kant and AS Bopanna, JJ, in a progressive take, held that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried. It observed that after the 2021 amendment to the Medical Termination of Pregnancy Act, 1971 (MTP Act), the phrase ‘married woman’ has been replaced by ‘any woman’ and the word ‘husband’ has been replaced by ‘partner. Which goes on to show that the legislature did not intend to leave out unmarried women from the scope of the Act.

Hence, Rule 3B (c) which provides for “change of marital status during the ongoing pregnancy” should be given purposive interpretation to include an unmarried woman who’s partner has abandoned her.

The Court said that 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, especially when live-in relationships have already been recognized by the Court.

Woman cannot be denied right to safe abortion only on the ground of her being unmarried: Supreme Court

While the interim order was passed in the case on 21.07.2022 in X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 905, allowing the woman to terminate her pregnancy, the Court took over two months to write a far-reaching 75-pages-long verdict, touching upon various aspects like equal status of married and unmarried or single women, right to reproductive autonomy, right to dignity, effect of unwanted pregnancy on mental health of women, etc.. The 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and JB Pardiwala, JJ observed that,

“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. The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances.”

Here are the key takeaways from what the Supreme Court said in the detailed verdict:

Barriers to accessing safe and legal abortions

Despite the enactment of the MTP Act, a number of hurdles, such as insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care, continue to prevent full access to safe and legal abortions, pushing women to avail of clandestine, unsafe abortions. Unmarried women face particular barriers due to gender stereotypes about women’s sexual autonomy outside marriage. Such barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy.

Transcending the institution of marriage as a source of rights

The Court stressed upon the need for the law to remain cognizant of the fact that changes in society have ushered in significant changes in family structures. It observed,

“While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another).”

Societal reality, as observed in Deepika Singh v. Central Administrative Services, 2022 SCC OnLine SC 1088, indicates the need to legally recognize non-traditional manifestations of familial relationships. Such legal recognition is necessary to enable individuals in nontraditional family structures to avail of the benefits under beneficial legislation, including the MTP Act.

Also read: Family” includes domestic, unmarried/queer relationships

Equal status of married and unmarried or single women

In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws.

“Sexual assault” or “rape” under Medical Termination of Pregnancy laws includes “marital rape”: holds Supreme Court, without changing the contours of ‘rape’ defined under Section 375 IPC

Mental Health

Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. The understanding of the term mental health cannot be confined to medical terms or medical language but should be understood in common parlance. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting “grave injury to her physical or mental health”, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. The expression “grave injury to her physical or mental health” used in Section 3(2) is used in an overarching and all-encompassing sense. The two explanations appended to Section 3(2) provide the circumstances under which the anguish caused by a pregnancy may be presumed to constitute a grave injury to the mental health of a woman.

Right to reproductive autonomy

The right to reproductive autonomy is closely linked with the right to bodily autonomy i.e. the right to take decisions about one’s body. The decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman i.e. the right to choose the course of her life as,

“The consequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated. The foetus relies on the pregnant woman’s body for sustenance and nourishment until it is born. The biological process of pregnancy transforms the woman’s body to permit this. The woman may experience swelling, body ache, contractions, morning sickness, and restricted mobility, to name a few of a host of side effects. Further, complications may arise which pose a risk to the life of the woman. A mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy.”

Hence, it is the woman alone who has the right over her body and is the ultimate decisionmaker on the question of whether she wants to undergo an abortion.

Right to dignity

The right to choose for oneself – be it as significant as choosing the course of one’s life or as mundane as one’s day-to-day activities – forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies.

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.

Purposive Interpretation of Rule 3B of the MTP Rules to include unmarried women, single women, or women without a partner under its ambit

The common thread running through each category of women mentioned in Rule 3B[1] is that the woman is in a unique and often difficult circumstance, with respect to her physical, mental, social, or financial state. It is important to note that Rule 3B does not enumerate all the potential changes that a woman’s material circumstances may undergo. It merely specifies some of the potential changes to a woman’s material circumstances. From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not the intention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.

“It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in.”

Rule 3B(c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. However, 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.”

“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.”

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT,2022 SCC OnLine SC 1321, decided on 29.09.2022]


*Judgment by: Dr. Justice DY Chandrachud

For Petitioner(s): Advocate Dr. Amit Mishra

For Respondent(s): ASG Aishwarya Bhati


[1] Rule 3B of the MTP Rules lists down the category of women eligible for termination of pregnancy up to twenty-four weeks.-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being imcompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Sathish Chandra Sharma, CJ and Subramonium Prasad, J refused termination of pregnancy to an unmarried woman whose pregnancy arose out of a consensual relationship after holding that her case was clearly not covered by any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 as on the date of the judgment.

The Petitioner aged 25 years is a 24 weeks pregnant unmarried woman. Her pregnancy arose out of consensual relationship that eventually failed. It was her case that she cannot give birth to the child due to her financial incapacity to raise and handle the child along with mental incapacity to be a mother in order to secure her future from social stigma.

The Court noted that a perusal of Section 3(2)(a) Medical Termination of Pregnancy Act, 1971 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 termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks.

Further, it was noted that a perusal of Section 3(2)(b) Medical Termination of Pregnancy Act, 1971 provides that the said sub-Section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003. Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which permits termination of pregnancy up to 24 weeks, reads as under: –

“3-B. Women eligible for termination of pregnancy up to twenty-four weeks.

The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) section 3 of the Act, for a period of up to twenty-four weeks, namely:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c)change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

The Court observed that 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.

A noteworthy mention was made by the counsel for petitioners regarding non-inclusion of unmarried women under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 being violative of Article 14 of the Constitution of India. The Court, however, observed that whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court.

Noting that granting interim relief to the petitioner now would amount to allowing the writ petition itself, the Court held that in light of the law prevailing on the date of the passing of the order, Rule 3B Medical Termination of Pregnancy Rules, 2003, stands, and thus “this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute.”

This order, however, stands modified by the Supreme Court vide order dated 21-07-2022 wherein it has been held that woman cannot be denied right to safe abortion only on the ground of her being unmarried.

[X v. Principal Secretary, 2022 SCC OnLine Del 2171, decided on 15-07-2022]


Advocates who appeared in this case :

Dr. Amit Mishra, Advocate, for the Petitioner;

Ms. Hetu Arora Sethi, ASC for GNCTD with Mr. Arjun Basra, Advocate for R-1 Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor, Ms. Kunjala Bhardwaj, Advocates for R-2, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case relating to the termination of pregnancy of an unmarried woman, whose pregnancy arose out of a consensual relationship, the 3-judge bench of Dr. DY Chandrachud, Surya Kant and AS Bopanna, JJ has given a progressive ruling by holding that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried.

“Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.”

Facts

In the case at hand, the woman, a permanent resident of Manipur currently residing in Delhi, was in a consensual relationship but the relationship failed. In the month of June 2022 she learnt that she was pregnant. On 5 July 2022, an ultrasound scan revealed a single intrauterine pregnancy of a term of twenty-two weeks. The petitioner decided to terminate the pregnancy by averring that she has stated that she is the eldest amongst five siblings and her parents are agriculturists. She holds a BA degree and, in the absence of a source of livelihood, she would be unable to raise and nurture a child. It is the case of the woman that she was deserted by her partner at the last stage in June 2022 causing her immense mental agony, trauma, and physical suffering.

The laws in question

The woman sought a direction for the inclusion of an unmarried woman within the ambit of Rule 3B of the Medical Termination of Pregnancy Rules 2003 (MTP Rules) for the termination of pregnancy in terms of the provisions of clause (b) of sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act 1971 (MTP Act).

Section 3(2) of the MTP Act

Clause (a) of sub-section (2) of Section 3 permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks. Clause (b) permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty four weeks for such categories of women “as may be prescribed by Rules made under this Act”. However, an opinion must be formed by not less than two registered medical practitioners that inter alia “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”.

Explanation 1 to Section 3 stipulates that for the purpose of clause (a), where a pregnancy has occurred as a result of a failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 1 evidently qualifies clause (a) but not clause (b).

Rule 3B of the MTP Rules

This rules lists down the category of women eligible for termination of pregnancy up to twenty-four weeks.-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being imcompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

Delhi High Court’s order

The High Court denied the right to safe abortion to the woman by holding that since she is an unmarried woman whose pregnancy arose out of a consensual relationship, her case is “clearly not covered” by any of the above clauses of Rule 3B and, as a consequence, Section 3(2)(b) is not applicable.

Supreme Court’s observations

Disagreeing with the view, the Supreme Court observed that the High Court has 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.”

Explaining the fundamental principle of statutory interpretation that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intent of the legislature, the Court said that 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. This is evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act.

It was further explained that Explanation 1 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. Hence, it cannot be said that the Parliamentary intent is to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship.

“The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child. In recognizing the right the legislature has not intended to make a distinction between a married and unmarried woman, in her ability to make a decision on whether or not to bear the child. These rights, it must be underscored, are in consonance with the provisions of Article 21 of the Constitution.”

Drawing a comparison between the two provisions before and after the 2021 amendment, the Court noticed that the phrase ‘married woman’ was replaced by ‘any woman’ and the word ‘husband’ was replaced by ‘partner’. But evidently, there is a gap in the law : while Section 3 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. 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, especially when live-in relationships have been recognized by the Supreme Court.

“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.”

Holding that 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 Court was, hence, of the opinion that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament. 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 Court also took note of the fact that the petitioner had moved the High Court before she had completed 24 weeks of pregnancy, hence, the delay in the judicial process cannot work to her prejudice.

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 905, order dated 21.07.2022]


For Petitioner(s): Advocates Dr. Amit Mishra and Rahul Sharma

For Respondent(s): ASG Aishwarya Bhati, Advocates Deepabali Datta, Ketan Paul, Aman Sharma, B.L.N. Shibani, G.S. Makker