The Supreme Court on Thursday observed that a woman cannot be denied the opportunity to terminate her pregnancy merely on the grounds that she is unmarried and allowed a woman to terminate her 24-week-old pregnancy subjecting to AIIMS Delhi concluding that the foetus can be aborted without risking her life.
A bench of Justices DY Chandrachud, Surya Kant and PS Narasimha said allowing the woman to suffer an unwanted pregnancy will be contrary to the object and spirit of the legislation.
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“We are of the view that allowing the petitioner to suffer an unwanted pregnancy will go against the parliamentary intent and the benefits under the Medical Termination of Pregnancy (MTP) Act cannot be denied to her only on the basis of her being unmarried. The distinction between a married and an unmarried woman has no nexus to the object sought to be achieved by the Parliament,” the apex court said in its order.
It noted that after the 2021 amendment in the Act, it uses the word “partner” instead of “husband” in the explanation to Section 3 saying that this shows the legislative intent to cover “unmarried woman” under the Act.
The 25-year-old woman had approached the apex court after the Delhi High Court declined to grant permission to abort her pregnancy which had arisen out of a consensual sexual relationship, saying that it virtually amounts to killing the foetus.
The top court in the order said that the Delhi High Court took an “unduly restrictive view” of the provisions of the MTP Rules while declining the woman to terminate her pregnancy.
The apex court directed AIIMS Delhi Director to constitute a medical board in terms of provisions of Section 3(2)(d) MTP Act during the course of July 22.
It said, “In the event the medical board concludes that the foetus can be aborted without any danger to life of the petitioner, the AIIMS shall carry out the abortion in terms of the petition. The report shall be furnished to the court after completion of the procedure.”
The Supreme Court also issued notice to the Central government and has sought the assistance of Additional Solicitor General Aishwarya Bhati on the legislative interpretation of the Act.
It said courts cannot be unmindful of the legislative intent behind the amendment in the Act, which expressly contemplates unwanted pregnancy by failure of method or device used by woman or her partner to prevent pregnancy.
“The use of words ‘woman or her partner’ shows an intention to cover unmarried woman which is in consonance with Article 14 of the Constitution,” the bench opined.
The apex court in its order noted the contentions of woman that she is eldest among five siblings and her parents are agriculturists. It was submitted that in the absence of a source of livelihood, she will be unable to raise and nurture the child.
In her plea, the woman said she is unmarried and her partner “ditched” her at the last moment (about 18 weeks of pregnancy). Social stigma coupled with mental and financial constraints compelled her to approach the court to terminate the pregnancy at an advanced stage, her counsel contended.
The High Court on July 15 said that permitting abortion at this stage would virtually amount to killing the foetus and asked the woman to rather put up her child for adoption.
“We will not permit you to kill that child. (We are) very sorry. This virtually amounts to killing (the foetus),” I had observed.
The upper limit for the termination of pregnancy is 24 weeks for special categories, including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.
