# [2022] 7 S.C.R. 686

- **Citation:** [2022] 7 S.C.R. 686
- **Court:** Supreme Court of India
- **Decided:** 2022-09-29
- **Case number:** Civil Appeal No. 5802 of 2022
- **Bench:** Dr. Dhananjaya Y. Chandrachud, A. S. Bopanna, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2022-7-s-c-r-686-36339
- **Pages:** 69

## Headnote

Medical Termination of Pregnancy Act 1971(Amended by the
Medical Termination of Pregnancy (Amendment) Act,2021) - s.
3(2)(b) - Medical Termination of Pregnancy Rules,2003 (Amended
by Medical Termination of Pregnancy (Amendment) Rules, 2021) -
Rule 3B - Constitution of India - Article 14, 21 - The Interpretation
of Rule 3B of the MTP Rules - Unmarried or single women fall
within the ambit of Rule 3B - Purpose and object - Right to
reproductive autonomy - Right to dignity - Appellant instituted a
writ petition before the High Court and submitted that appellant
was in a consensual relationship and had become pregnant - As
her partner had refused to marry her and in absence of source of
livelihood, she would be unable to nurture a child as an unmarried
mother - Appellant also instituted a Criminal Miscellaneous
Application for grant of interim relief to terminate her pregnancy
during the pendency of the Writ Petition - High Court declined to
grant relief sought and observed that Section 3(2)(b) of the MTP
Act was inapplicable and since the appellant, being an unmarried
woman, was not covered by any of the sub-clauses of Rule 3B of
the MTP Rules - Appeal was filed before the Supreme Court against
the order of High Court and Supreme Court by ad interim order
modified the order of the High court and permitted the appellant to
terminate her pregnancy - As the case involved substantial question
of law the writ petition before the High Court was transferred to
Supreme Court - The issue involved is the interpretation of Rule 3B
of the MTP Rules - Held: In s.3 of the MTP Amendment Act the
words used are "Any women or her partner", by eliminating the
words (which existed before the amendment) "married women or
her husband" the legislature intended to clarify the scope of s.3 -
Further held, the meaning of the words "sexual assault" or "rape"
[2022] 7 S.C.R. 686
686
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in Rule 3B(a) includes a husband's act of sexual assault or rape
(Marital rape) committed on his wife but solely for the purposes of
the MTP Act - Unmarried women have right to access safe and
legal abortions between twenty and twenty-four weeks, if they face
a change in their material circumstances, similar to married women
- Distinction between married and unmarried women does not bear
nexus to the basic purpose and object which is sought to be achieved
by parliament - In view of the object, there is no rationale for
excluding unmarried or single women (who face a change in their
material circumstances) from the ambit of Rule 3B.
Medical Termination of Pregnancy Act 1971(Amended by the
Medical Termination of Pregnancy (Amendment) Act,2021 ) - Object
and purpose - Discussed.
Medical Termination of Pregnancy Rules,2003 (Amended by
Medical Termination of Pregnancy (Amendment) Rules, 2021) - Rule
3B - Purposive Interpretation of.
Disposing of the appeal, the Court
HELD:1. Despite the enactment of the MTP Act, a number
of hurdles continue to prevent full access to safe and legal
abortions, pushing women to avail of clandestine, unsafe abortions.
These barriers include insufficient infrastructural facilities, a lack
of awareness, social stigma, and failure to ensure confidential
care. In some situations, unmarried women face particular barriers
due to gender stereotypes about women's sexual autonomy
outside marriage. These barriers are a serious impediment and
deter single women from seeking safe and legal abortions. 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. [Para 18][709-B-C]
2. Although the actions of RMPs done in good faith under
the MTP Act are protected under Section 8, the spectre of
criminalization casts a chilling effect on them. The fear faced by
RMPs of prosecution under the penal provisions often leads to
unnecessary delays. It is a common yet lamentable practice for
RMPs to insist on compliance with extra-legal conditions

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SUPREME COURT REPORTS
[2022] 7 S.C.R.
X
v.
THE PRINCIPAL SECRETARY, HEALTH AND FAMILY
WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR.
(Civil Appeal No. 5802 of 2022)
SEPTEMBER 29, 2022
[DR. DHANANJAYA Y. CHANDRACHUD,
A. S. BOPANNA AND J. B. PARDIWALA, JJ.]
Medical Termination of Pregnancy Act 1971(Amended by the
Medical Termination of Pregnancy (Amendment) Act,2021) - s.
3(2)(b) - Medical Termination of Pregnancy Rules,2003 (Amended
by Medical Termination of Pregnancy (Amendment) Rules, 2021) -
Rule 3B - Constitution of India - Article 14, 21 - The Interpretation
of Rule 3B of the MTP Rules - Unmarried or single women fall
within the ambit of Rule 3B - Purpose and object - Right to
reproductive autonomy - Right to dignity - Appellant instituted a
writ petition before the High Court and submitted that appellant
was in a consensual relationship and had become pregnant - As
her partner had refused to marry her and in absence of source of
livelihood, she would be unable to nurture a child as an unmarried
mother - Appellant also instituted a Criminal Miscellaneous
Application for grant of interim relief to terminate her pregnancy
during the pendency of the Writ Petition - High Court declined to
grant relief sought and observed that Section 3(2)(b) of the MTP
Act was inapplicable and since the appellant, being an unmarried
woman, was not covered by any of the sub-clauses of Rule 3B of
the MTP Rules - Appeal was filed before the Supreme Court against
the order of High Court and Supreme Court by ad interim order
modified the order of the High court and permitted the appellant to
terminate her pregnancy - As the case involved substantial question
of law the writ petition before the High Court was transferred to
Supreme Court - The issue involved is the interpretation of Rule 3B
of the MTP Rules - Held: In s.3 of the MTP Amendment Act the
words used are "Any women or her partner", by eliminating the
words (which existed before the amendment) "married women or
her husband" the legislature intended to clarify the scope of s.3 -
Further held, the meaning of the words "sexual assault" or "rape"
[2022] 7 S.C.R. 686
686
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in Rule 3B(a) includes a husband's act of sexual assault or rape
(Marital rape) committed on his wife but solely for the purposes of
the MTP Act - Unmarried women have right to access safe and
legal abortions between twenty and twenty-four weeks, if they face
a change in their material circumstances, similar to married women
- Distinction between married and unmarried women does not bear
nexus to the basic purpose and object which is sought to be achieved
by parliament - In view of the object, there is no rationale for
excluding unmarried or single women (who face a change in their
material circumstances) from the ambit of Rule 3B.
Medical Termination of Pregnancy Act 1971(Amended by the
Medical Termination of Pregnancy (Amendment) Act,2021 ) - Object
and purpose - Discussed.
Medical Termination of Pregnancy Rules,2003 (Amended by
Medical Termination of Pregnancy (Amendment) Rules, 2021) - Rule
3B - Purposive Interpretation of.
Disposing of the appeal, the Court
HELD:1. Despite the enactment of the MTP Act, a number
of hurdles continue to prevent full access to safe and legal
abortions, pushing women to avail of clandestine, unsafe abortions.
These barriers include insufficient infrastructural facilities, a lack
of awareness, social stigma, and failure to ensure confidential
care. In some situations, unmarried women face particular barriers
due to gender stereotypes about women's sexual autonomy
outside marriage. These barriers are a serious impediment and
deter single women from seeking safe and legal abortions. 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. [Para 18][709-B-C]
2. Although the actions of RMPs done in good faith under
the MTP Act are protected under Section 8, the spectre of
criminalization casts a chilling effect on them. The fear faced by
RMPs of prosecution under the penal provisions often leads to
unnecessary delays. It is a common yet lamentable practice for
RMPs to insist on compliance with extra-legal conditions such
as consent from the woman's family, documentary proofs, or
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DELHI
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[2022] 7 S.C.R.
judicial authorisation. If the woman fails to comply with these
additional requirements, RMPs frequently decline to provide their
services in conducting legal abortions. These extra-legal
requirements have no basis in law. As noted above, it is only the
woman's consent (or her guardian's consent if she is a minor or
mentally ill) which is material. RMPs must refrain from imposing
extra-legal conditions on women seeking to terminate their
pregnancy in accordance with the law. They need only ensure
that the provisions of the MTP Act (along with the accompanying
rules and regulations) are complied with. [Paras 22, 23][710-G;
711-A-C]
3.An RMP's decision to provide medical termination of a
pregnancy is also influenced by social stigma surrounding
unmarried women and pre-marital sex, gender stereotypes about
women taking on the mantle of motherhood, and the role of
women in society. The social stigma that women face for engaging
in pre-marital sexual relations prevents them from realizing their
right to reproductive health in a variety of ways. They have
insufficient or no access to knowledge about their own bodies
due to a lack of sexual health education, their access to
contraceptives is limited, and they are frequently unable to
approach healthcare providers and consult them with respect to
their reproductive health. Consequently, unmarried and single
women face additional obstacles. [Paras 26, 28][712-C-D; 713A-B]
4. The question that arises is whether Rule 3B includes
unmarried women, single women, or women without a partner
under its ambit. The answer may be discerned by imparting a
purposive interpretation to Rule 3B. The cardinal principle of
the construction of statutes is to identify the intention of the
legislature and the true legal meaning of the enactment. The
intention of the legislature is derived by considering the meaning
of the words used in the statute, with a view to understanding the
purpose or object of the enactment, the mischief, and its
corresponding remedy that the enactment is designed to actualise.
[Paras 30, 31][713-E-F]
5. While much of law's benefits were (and indeed are) rooted
in the institution of marriage, the law in modern times is shedding
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the notion that marriage is a precondition to the rights of
individuals (alone or in relation to one another). Changing social
mores must be borne in mind when interpreting the provisions
of an enactment to further its object and purpose. In Navtej Singh
Johar, this Court emphasized the transformative nature of our
Constitution. Transformative constitutionalism promotes and
engenders societal change by ensuring that every individual is
capable of enjoying the life and liberties guaranteed under the
Constitution. This Court observed that transformative
constitutionalism places a duty on the judiciary to "ensure and
uphold the supremacy of the Constitution, while at the same time
ensuring that a sense of transformation is ushered constantly and
endlessly in the society by interpreting and enforcing the
Constitution as well as other provisions of law in consonance
with the avowed object. [Paras 38, 40][718-D-E; 719-C-D]
6. The MTP Amendment Act 2021 also extended the benefit
of the legal presumption of a grave injury to the mental health of
a woman on account of the failure of contraception, to all women
and not just married women. In the unamended MTP Act,
Explanation II provided that the anguish caused by a pregnancy
resulting from a failure of any device or method used by any
"married woman or her husband" for the purpose of limiting the
number of children may be presumed to constitute a grave injury
to the mental health of the woman. After the MTP Amendment
Act 2021, Explanation I provides that the anguish caused by a
pregnancy (up to twenty weeks) arising from a failure of a
contraceptive device used by "any woman or her partner" either
for limiting the number of children or for preventing pregnancy
can be presumed to constitute a grave injury to a woman's mental
health. By eliminating the word "married woman or her husband"
from the scheme of the MTP Act, the legislature intended to
clarify the scope of Section 3 and bring pregnancies which occur
outside the institution of marriage within the protective umbrella
of the law. [Para 53][724-C-E]
7. 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
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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.
[Para 56][725-D]
8 .The expression "mental health" has a wide connotation
and means much more than the absence of a mental impairment
or a mental illness. The World Health Organization defines mental
health as a state of "mental well-being that enables people to
cope with the stresses of life, realize their abilities, learn well
and work well, and contribute to their community." The
determination of the status of one's mental health is located in
one's self and experiences within one's environment and social
context. Our 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. [Para 64][729-B-D]
9. 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. [Para 75][733-A-B]
10. 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
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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." [Para 76][733-C-D]
11. 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. A recognition of the fact that there may be a
change in a woman's material circumstance animates Rule 3B(c),
Rule 3B(g) and Rule 3B(f). However, 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, in sub-rules (c), (f) and (g).
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.
[Paras 92, 93][738-C-F]
12. The ambit of reproductive rights is not restricted to
the right of women to have or not have children. It also includes
the constellation of freedoms and entitlements that enable a
woman to decide freely on all matters relating to her sexual and
reproductive health. Reproductive rights include the right to
access education and information about contraception and sexual
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health, the right to decide whether and what type of
contraceptives to use, the right to choose whether and when to
have children, the right to choose the number of children, the
right to access safe and legal abortions, and the right to
reproductive healthcare. Women must also have the autonomy
to make decisions concerning these rights, free from coercion
or violence. [Para 96][739-B-D]
13. If women with unwanted pregnancies are forced to carry
their pregnancies to term, the state would be stripping them of
the right to determine the immediate and long-term path their
lives would take. Depriving women of autonomy not only over
their bodies but also over their lives would be an affront to their
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-today 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. [Para 110][744-G-H; 745-A]
14. The object of Section 3(2)(b) of the MTP Act read with
Rule 3B is to provide for abortions between twenty and twentyfour weeks, rendered unwanted due to a change in the material
circumstances of women. In view of the object, there is no rationale
for excluding unmarried or single women (who face a change in
their material circumstances) from the ambit of Rule 3B. 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. Article 14 requires
the state to refrain from denying to any person equality before
the law or equal protection of laws. 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. The rights of reproductive autonomy, dignity, and
privacy under Article 21 give an unmarried woman the right of
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choice on whether or not to bear a child, on a similar footing of a
married woman. [Para 121][749-E-G; 750-A]
15. The state must ensure that information regarding
reproduction and safe sexual practices is disseminated to all parts
of the population. Further, it must see to it that all segments of
society are able to access contraceptives to avoid unintended
pregnancies and plan their families. Medical facilities and RMPs
must be present in each district and must be affordable to all.
The government must ensure that RMPs treat all patients equally
and sensitively. Treatment must not be denied on the basis of
one's caste or due to other social or economic factors. It is only
when these recommendations become a reality that we can say
that the right to bodily autonomy and the right to dignity are
capable of being realized. [Para 134][753-E-F]
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[1958] SCR 360
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[1977] 3 SCR 412
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[1965] SCR 626
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[1978] 1 SCR 423
referred to
Para 33
[1987] 2 SCR 1
referred to
Para 33
[1955] 2 SCR 603
referred to
Para 35
[1988] 2 Suppl. SCR 24
referred to
Para 35
[1995] 3 SCR 785
referred to
Para 36
[1986] 2 SCR 169
referred to
Para 36
[2009] 13 SCR 1139
referred to
Para 36
[2008] 7 SCR 673
referred to
Para 36
[1996] 3 Suppl. SCR 439
referred to
Para 37
[2019] 14 SCR 928
referred to
Para 37
[2019] 6 SCR 307
referred to
Para 38
[2013] 10 SCR 259
referred to
Para 39
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B
C
D
E
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[2018] 7 SCR 379
referred to
Para 40
[2010] 5 SCR 322
referred to
Para 41
[1950] SCR 869
referred to
Para 49
[1992] 1 SCR 917
referred to
Para 49
[2004] 1 SCR 180
referred to
Para 49
[1962] 3 Suppl. SCR 973
referred to
Para 60
[2017] 1 SCR 687
referred to
Para 62
[2017] 1 SCR 261
referred to
Para 62
2017] 8 SCR 212
referred to
Para 63
[2017] 10 SCR 569
referred to
Para 100
[2009] 13 SCR 989
referred to
Para 101
[2018] 6 SCR 1
referred to
Para 104
[1973] Suppl. SCR 1
referred to
Para 111
[1981] 2 SCR 516
referred to
Para 112
[2017] 13 SCR 821
referred to
Para 115
[1959] Suppl. SCR 394
referred to
Para 117
[1961] 2 SCR 295
referred to
Para 117
[1989] 2 SCR 544
referred to
Para 117
[1982] 1 SCR 629
referred to
Para 117
[1992] 1 SCR 220
referred to
Para 117
[1959] SCR 12
referred to
Para 119
[1999] 1 SCR 669
referred to
Para 120
[1997] 1 SCR 923
referred to
Para 123
[1996] 2 Suppl. SCR 331
referred to
Para 133
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5802
of 2022.
From the Judgment and Order dated 15.07.2022 of the High Court
of Delhi at New Delhi in C. M. Application No.30708 of 2022 in W.P.
(C) No.10602 of 2022.
X v. PR. SECY., HEALTH & FAMILY WELFARE DEPTT., GNCT
DELHI
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
Dr. Amit Mishra, Rahul Sharma, Advs. for the Appellant.
Ms. Aishwarya Bhati, ASG, Ms. Ameyavikrama Thanvi,
Ms. Manisha Chava, Ms. Shivani, Ms. Shivika Mehra, Aman Sharma,
Manvendra Singh, Ms. Chitrangada Rastravara, Nithin Pavuluri, Abhijeet
Singh, Ms. Shagun Thakur, Ms. Poornima Singh, Gurmeet Singh Makker,
Ms. Aakanksha Kaul, Ms. Preeti Rani, Ms. Ruchi Kohli, Ketan Paul,
Adit Khorana, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
Table of Contents
A. Background ...................................................................... 4
B. Submissions ....................................................................... 7
C. The Medical Termination of Pregnancy Act 1971 and the
rules framed thereunder ........................................................ 9
D. Barriers to accessing safe and legal abortions ........... 16
i. RMPs' fear of prosecution....................................... 16
ii. Social stigma surrounding unmarried women....... 20
E. Analysis ........................................................................... 22
i. The rule of purposive interpretation .....................22
ii. Transcending the institution of marriage as a
source of rights..........................................................27
a. Modern or atypical forms of familial relationships ... 29
b. The equal status of married and unmarried or
single women ................................................................ 30
iii. The object and purpose of the MTP Act.............. 32
iv. The MTP Act as an aid of interpretation:
Understanding "injury to mental health" .................. 39
v. Construing Rule 3B.................................................. 43
F. Constitutional values animating the interpretation
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B
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of the MTP Act and MTP Rules ........................................... 55
i. The right to reproductive autonomy ...................... 55
ii. The right to dignity ...................................................62
G. Purposive interpretation of Rule 3B furthers the
constitutional mandate ................................................... 66
H. India's obligations under international law ................. 69
I.
Reiterating the positive obligations of the state ........... 72
A. Background
1. Leave granted.
2. This appeal arises out of the judgment of a Division Bench of
the High Court of Delhi dated 15 July 2022. The appellant invoked the
writ jurisdiction of the High Court seeking its permission to terminate
her pregnancy before the completion of twenty-four weeks on 15 July
2022. Other ancillary reliefs were sought. For convenience of reference,
the reliefs claimed before the High Court are extracted below:
"A. Permit the Petitioner to terminate her ongoing pregnancy
through registered medical practitioners at any approved private
or government center or Hospital before 15.07.2022 as her relief
will be infructuous after that as the pregnancy will be of around
24 Weeks by that time;
B. Restrain the Respondent from taking any coercive action or
criminal proceedings against the Petitioner or any Registered
Medical Practitioner terminating the pregnancy of the petitioner
at any approved private center or hospital registered by Govt NCT
of Delhi;
C. Direct the Respondent to include unmarried woman also within
the ambit of the Rule 3B of the Medical Termination of Pregnancy
Rules 2003 (as amended on 21.10.2021) for termination of
pregnancy under clause (b) of sub-section (2) Section 3 of the
MTP Act, for a period of up to twenty-four weeks;
D. Order an immediate Interim Relief of Stay during the course
of proceedings"
X v. PR. SECY., HEALTH & FAMILY WELFARE DEPTT., GNCT
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3. The appellant is an Indian citizen and a permanent resident of
Manipur. She is currently residing in New Delhi. The appellant averred
that she is the eldest amongst five siblings and that her parents are
agriculturists. At the time of the institution of the Writ Petition before the
High Court of Delhi,1 the appellant was carrying a single intrauterine
pregnancy corresponding to a gestational age of twenty-two weeks.
The appellant is an unmarried woman aged about twenty-five years,
and had become pregnant as a result of a consensual relationship. The
appellant wished to terminate her pregnancy as "her partner had refused
to marry her at the last stage." She stated that she did not want to carry
the pregnancy to term since she was wary of the "social stigma and
harassment" pertaining to unmarried single parents, especially women.
Moreover, the appellant submitted that in the absence of a source of
livelihood, she was not mentally prepared to "raise and nurture the child
as an unmarried mother." The appellant stated that the continuation of
the unwanted pregnancy would involve a risk of grave and immense
injury to her mental health.
4. The appellant sought permission to terminate her pregnancy in
terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act
19712 and Rule 3B(c) of the Medical Termination of Pregnancy Rules
20033 (as amended on 12 October 2021). The appellant instituted a
Criminal Miscellaneous Application4 for grant of interim relief to terminate
her pregnancy during the pendency of the Writ Petition.
5. By its order dated 15 July 2022, the High Court issued notice
restricted only to prayer C of the Writ Petition, and rejected the Criminal
Miscellaneous Application, effectively rejecting prayers A and B. The
High Court observed that Section 3(2)(b) of the MTP Act was
inapplicable to the facts of the present case since the appellant, being an
unmarried woman, whose pregnancy arose out of a consensual
relationship, was not covered by any of the sub-clauses of Rule 3B of
the MTP Rules. The High Court held that:
"8. 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
1 WP(C) 10602/2022
2 "MTP Act"
3 "MTP Rules"
4 CM Application 30708/2022
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Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is
not applicable to the facts of this case.
9. Learned counsel for the Petitioner states that Rule 3B of the
Medical Termination of Pregnancy Rules, 2003 is violative of
Article 14 of the Constitution of India, 1950, inasmuch as it excludes
an unmarried woman. 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.
10. As of today, Rule 3B of the Medical Termination of Pregnancy
Rules, 2003, stands, and this Court, while exercising its power
under Article 226 of the Constitution of India, 1950, cannot go
beyond the Statute. Granting interim relief now would amount to
allowing the writ petition itself."
6. The order of the High Court gave rise to the present appeal.
Notice was issued on the Petition for Special Leave to Appeal on 21
July 2022. This Court, by its order dated 21 July 2022 modified the order
of the High Court and permitted the appellant to terminate her pregnancy.
This Court passed the following ad interim order:
"22. In the above background, we pass the following ad interim
order:
(i) We request the Director of the All India Institute of Medical
Sciences, Delhi to constitute a Medical Board in terms of the
provisions of Section 3(2D) of the Act, extracted in the earlier
part of this order, during the course of 22 July 2022; and(ii) In the
event that the Medical Board concludes that the fetus can be
aborted without danger to the life of the petitioner, a team of doctors
at the All India Institute of Medical Sciences shall carry out the
abortion in terms of the request which has been made before the
High Court and which has been reiterated both in the Special
Leave Petition and in the course of the submissions before this
Court by counsel appearing on behalf of the petitioner. Before
doing so the wishes of the petitioner shall be ascertained again
and her written consent obtained after due verification of identity."
7. Counsel for the petitioner and the respondent stated that a
Medical Board was constituted at the All India Institute of Medical
X v. PR. SECY., HEALTH & FAMILY WELFARE DEPTT., GNCT
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Sciences.5 The Board noted that the petitioner had consented to the
termination of her pregnancy and the procedure could be undertaken
without danger to her life. The report submitted by AIIMS indicates that
the termination of the pregnancy was safely carried out.
8. As the case involves a substantial question of law, this Court
has taken it up for further consideration. The Writ Petition before the
Delhi High Court shall stand transferred to this Court. The significant
issue which comes up for determination in this appeal turns on the
interpretation of Rule 3B of the MTP Rules.
B. Submissions
9. Dr. Amit Mishra, learned counsel appearing on behalf of the
appellant made the following submissions:
a.
The appellant was an unmarried woman whose partner had
refused to marry her. She did not wish to continue the
pregnancy and have the child out of wedlock as she lacked
the financial resources to do so. She was not employed and
her parents were farmers;
b.
She was also not mentally prepared to raise a child by herself.
If she was compelled to do so, it would cause grave injury to
her physical and mental health. The appellant was not prepared
to face the social stigma surrounding unwed mothers; and
c.
Section 3(2)(b) of the MTP Act and Rule 3B of the MTP
Rules are arbitrary and discriminatory because they exclude
unmarried women from their ambit. They discriminate against
women on the ground of marital status, in violation of Article
14 of the Constitution.
10. Ms. Aishwarya Bhati, learned senior counsel and Additional
Solicitor General has ably assisted this Court in the interpretation of
Section 3(2) of the MTP Act and Rule 3B(c) of the MTP Rules. She
made the following submissions in support of the argument that Rule
3B(c) extends to unmarried or single women who are in long-term
relationships:
a.
The interpretation of legislation must be guided by the text
and context of a statute as well as the object it seeks to achieve.
5 "AIIMS"
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The Statement of Objects and Reasons of a statute must also
guide its interpretation;
b. Modern legislations ought to be read in view of the evolution
of society from the time of enactment. The literal construction
of beneficial legislations must be avoided, and they ought to
be given a purposive interpretation;
c. A subordinate legislation should give effect to the statute it is
enacted under. If two constructions are possible, the
interpretation in consonance with the statutory scheme ought
to be adopted;
d. The term "change of marital status" in Rule 3B(c) ought to be
interpreted as "change in the status of a relationship" to include
unmarried or single women as well as women who are not
divorced but are separated or have been deserted;
e. "Live-in relationships" are equivalent to marital relationships
because in both types of relationships, the woman is entitled
to maintenance. Further, the children born out of such a
relationship are vested with the right of succession. Various
national legislations, including the MTP Act, do not make a
distinction between married women and unmarried or single
women; and
f.
Women enjoy the right to bodily integrity and autonomy, as
well as reproductive rights. They are entitled to exercise
decisional autonomy.
C. The Medical Termination of Pregnancy Act 1971 and
the rules framed thereunder
11. Before we embark upon a discussion on the law and its
application, it must be mentioned that we use 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.
12. In India, termination of pregnancies is to be done strictly in
terms of the MTP Act. The preamble of the MTP Act states that it is an
"Act to provide for the termination of certain pregnancies by registered
medical practitioners and for matters connected therewith or incidental
thereto." The MTP Act specifies the requirements to be fulfilled for
X v. PR. SECY., HEALTH & FAMILY WELFARE DEPTT., GNCT
DELHI [DR DHANANJAYA Y CHANDRACHUD, J.]
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[2022] 7 S.C.R.
terminating a pregnancy, including the persons who are competent to
perform the termination procedure, circumstances when abortion is
permissible, and places where the procedure may be performed.
13.