-Report by Ishika Sehgal
The Supreme Court of India, in the case of X vs. Principal Secretary Health and Family Welfare Department & Anr, allowed an unmarried woman to abort a pregnancy resulting from a consensual relationship with her partner.
The petitioner is a permanent resident of Manipur and is currently residing in Delhi. She was in a consensual relationship and in learned that she was pregnant in the month of June 2022. On July 5th, she a scan revealed single intrauterine pregnancy of a term of twenty-two weeks. She decided to terminate the pregnancy and filed a petition before the Delhi High Court. The High Court did not allow abortion, as a pregnancy arising out of a consensual relationship of an unmarried woman does not fall within the ambit of the rules MTP rules and the MTP act.
The petitioner had also prayed before the High Court that the non-inclusion of the unmarried woman within the act and rules was violative of article 14. The High Court has issued a notice for the same.
The petitioner aggrieved by the decision of the High Court in respect of abortion filed a special leave petition before the Supreme Court. The Supreme Court after hearing the petitioner observed that the High Court has taken a restrictive view rather than a purposive view. According to the Supreme Court, explanation 1 to section 3 of the Medical Termination of Pregnancy Act, was amended to substitute the words “any woman” instead of a married woman and “husband” to “a partner”. This amendment clearly shows the intent of the legislature to include unmarried women as well.
Further, the court observed:
“it appears 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……..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.“
The court further said that rule 3B of the MTP rules recognizes all women except an unmarried woman, however, there is no basis to deny unmarried women the right to terminate the pregnancy when the same is available to other categories of women. The objective of the MTP Act and the MTP rules is to protect a woman from any danger to her physical or mental health and therefore this statute has recognized the reproductive choice of a woman and her body autonomy and integrity. There is no intention of the legislature to discriminate against an unmarried woman.
The Supreme Court further relied on the judgment of Suchita Srivastava v Chandigarh Administration 3 (2009) 9 SCC 1, wherein the right to reproductive choice has been held as a part of personal liberty under Article 21 of the Indian Constitution. The same has been recognized in Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors 4 (2017) 10 SCC 1 and in the High Court on its own Motion vs state of Maharashtra 5 2017 Cri LJ 218 (Bom HC). The right to a live-in relationship has also been recognized by the Supreme Court in S Khusboo v. Kanniammal 6 (2010) 5 SCC 600.
In light of the above, the petitioner was allowed to abort and a team of doctors at the All India Institute of Medical Sciences was directed to carry it out.