New Delhi: In a significant order, the Supreme Court on Thursday, July 21, expanded the scope of the Medical Termination of Pregnancy Act to include unmarried women and allowed a woman to abort a 24-week pregnancy arising out of a consensual relationship.
“Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom,” a bench of Justices D.Y. Chandrachud, Surya Kant, and A.S. Bopanna said, according to LiveLaw.
The apex court directed the AIIMS director to set up a medical board of two doctors to examine the woman by Friday, July 22, under the provisions of the Medical Termination of Pregnancy (MTP) Act
It asked the board to determine whether the pregnancy if terminated could risk the life of the woman or not.
“We request the AIIMS director to constitute a medical board in terms of provisions of section 3(2)(d) MTP Act by tomorrow (Friday). In the event the medical board concludes that the foetus can be aborted without any danger to the life of the petitioner (woman), the AIIMS shall carry out the abortion in terms of the petition..,” the bench said.
The top court sought the report of the medical board within one week of the procedure and said that the order of the Delhi high court stands modified to the above extent.
‘Partner instead of husband’
The petitioner, a 25-year-old woman, had told the court that her partner, with whom she was in a consensual relationship, had refused to marry her. She had stressed that giving birth outside the wedlock would cause her psychological agony as well as social stigma and she was not mentally prepared to be a mother.
The bench said that provisions of the MTP Act amended in 2021 include the word “partner” instead of “husband” in the explanation to section 3, which shows the intent of Parliament that it was not to confine the situations arising only out of matrimonial relationships.
“Clause (c) [of the Act] 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’.2021 amendment substitutes ‘husband’ with ‘partner’; legislative intent to cover unmarried woman,” the court said, according to LiveLaw.
It said that the use of the word “partner” ascribes to an intention of the Parliament to cover “unmarried woman” under the Act which is in consonance with the constitution.
The bench sought the assistance of Additional Solicitor General Aishwarya Bhati on the interpretation of the provisions of the Act and observed that allowing the petitioner woman to suffer an unwanted pregnancy will be contrary to the object and spirit of the legislation.
It said that the petitioner should not be denied the benefit of the law merely on the ground that she is an unmarried woman.
Criticism of high court’s order
It added that the Delhi high court had taken an “unduly restricted view” by not allowing the woman to undergo medical termination of pregnancy at 23 weeks arising out of a consensual relationship on the ground that she was “unmarried”.
The high court had denied the permission to abort saying that it virtually amounts to killing the foetus.
Also read: Abortion in India Is Still Mediated by Institutional Moral Policing
The high court, while dealing with the plea, had said the court cannot go beyond the statute while exercising its power under Article 226 of the Constitution.
“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,” the high court noted in its order dated July 15.
“As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (which excludes unmarried women) stands, and this court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the statute,” it had said.
Before passing the order, the high court had suggested that the petitioner can be kept “somewhere safe” until she delivers the child who can subsequently be given up for adoption.
“We will ensure that the girl is kept somewhere safe and she can deliver and go. There is a big queue for adoption,” the court had said.
After the lawyer turned down the court’s suggestion, it said that it would pass an order on the petition.
(With PTI inputs)