X versus THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT & ANR.
[2022] 12 S.C.R. 246, Supreme Court of India, 2022
Outcome: Directions issued
Segment: Ratio
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
X
v.
THE PRINCIPAL SECRETARY HEALTH AND FAMILY
WELFARE DEPARTMENT & ANR.
(Special Leave Petition (Civil) No. 12612 of 2022)
JULY 21, 2022
[DR DHANANJAYA Y CHANDRACHUD, SURYA KANT
AND A S BOPANNA, JJ.]
Medical Termination of Pregnancy Act 1971 – s. 3(2)(b), Rule
3B – Medical Termination of Pregnancy Rules 2003 – Termination
of pregnancy of an unmarried woman – Petitioner was in a
consensual relationship and in month of June 2022 she learnt that
she was pregnant (22 weeks) – Petitioner stated that in absence of
source of livelihood, she would be unable to nurture a child –
Petitioner deserted by her partner – She decided to terminate the
pregnancy – Writ petition before the High Court – High Court
declined to grant relief – On appeal, held: Letting the petitioner
suffer from an unwanted pregnancy would be contrary to the intent
of law – Petitioner should not be denied the benefit of MTP Act on
the ground that she is unmarried 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
especially through the provisions of Explanation 1 to s.3 of the
MTP Act – Ad Interim order to carry out abortion safely was passed
– Ad interim direction of High Court stands modified.
Suchita Srivastava v. Chandigarh Administration (2009)
9 SCC 1 : [2009] 13 SCR 989; Justice K.S. Puttaswamy
(Retd.) and Anr. v. Union of India and Ors. (2017) 10
SCC 1 : [2017] 10 SCR 569,  (2016) SCC OnLine Bom
8426; S Khusboo v. Kanniammal (2010) 5 SCC 600 :
[2010] 5 SCR 322 – relied on.
High Court on its Own Motion v. State of Maharashtra
2017 Cri LJ 218 (Bom HC) – referred to.
Case Law Reference
[2009] 13 SCR 989           relied on
Para 19
[2022] 12 S.C.R. 246
246
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[2017] 10 SCR 569          relied on
Para 19
[ 2010] 5 SCR 322
relied on
Para 20
EXTRA-ORDINARY APPELLATE JURISDICTION: Special
Leave Petition (Civil) No. 12612 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) 10602 of 2022.
Dr. Amit Mishra, Rahul Sharma, Advs. for the Petitioner.
Ms. Aishwarya Bhati, ASG, Ms. Deepabali Datta, Ketan Paul,
Aman Sharma, B. L. N. Shibani, G. S. Makker, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Issue notice.
2. Ms Aishwarya Bhati, Additional Solicitor General, with Mr G S
Makker, AOR, accepts notice on behalf of the second respondent.
3. We have heard Dr Amit Mishra, counsel appearing on behalf
of the petitioner. We have requested Ms Aishwarya Bhati to assist the
Court on the interpretative aspects of Section 3(2)(b) of the Medical
Termination of Pregnancy Act 19711 and Rule 3B of the Medical
Termination of Pregnancy Rules 20032.
4. The petitioner is a permanent resident of Manipur and is stated
to be currently residing in Delhi. The petitioner has averred that she was
in a consensual relationship and, 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; her relationship has failed.
She has stated that she
is the eldest amongst five siblings and her parents
are agriculturists. The petitioner has stated that she holds a BA degree
and, in the absence of a source of livelihood, she would be unable to
raise and nurture a child. She moved a writ petition before the High
Court of Delhi.
1 “MTP Act”
2 “MTP Rules”
X v. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE
DEPARTMENT
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5. The Division Bench of the High Court, by an order dated
15 July 2022, issued notice restricted only to prayer C of the petition, in
which the petitioner has sought a direction for the inclusion of an
unmarried woman within the ambit of Rule 3B of the MTP Rules for the
termination of pregnancy in terms of the provisions of clause (b) of sub-
section (2) of Section 3 of the MTP Act.
6. No notice has been issued by the High Court on prayer A or
prayer B of the petition which effectively stand rejected.
7. For convenience of reference, prayers A, B and C of the petition
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;
The petitioner has completed 24 weeks of her pregnancy on 18
July 2022.
8. Section 3 of the MTP Act reads as follows:
“3. When pregnancies may be terminated by registered medical
practitioners.-
(1)
Notwithstanding anything contained in the Indian Penal Code
(45 of 1860), a registered medical practitioner shall not be
guilty of any offence under that Code or under any other
law for the time being in force, if any pregnancy is
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terminated by him in accordance with the provisions of this
Act.
(2)
Subject to the provisions of sub-section (4), a pregnancy
may be terminated by a registered medical practitioner,—
(a) where the length of the pregnancy does not exceed
twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty
weeks but does not exceed twenty-four weeks in case
of such category of woman as may be prescribed by
rules made under this Act, if not less than two registered
medical practitioners are, of the opinion, formed in good
faith, that—
(i) 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; or
(ii) there is a substantial risk that if the child were born, it
would suffer from any serious physical or mental
abnormality.
Explanation 1.—For the purposes of clause (a), where any
pregnancy occurs as a result of 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 may be presumed
to constitute a grave injury to the mental health of the
pregnant woman.
Explanation 2.—For the purposes of clauses (a) and (b),
where any pregnancy is alleged by the pregnant woman to
have been caused by rape, the anguish caused by the
pregnancy shall be presumed to constitute a grave injury to
the mental health of the pregnant woman.
(2A) The
norms for the registered medical practitioner whose
opinion is required for termination of pregnancy at different
gestational age shall be such as may be prescribed by rules
made under this Act.
X v. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE
DEPARTMENT [DR DHANANJAYA Y CHANDRACHUD, J.]
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(2B) The provisions of sub-section (2) relating to the length of
the pregnancy shall not apply to the termination of pregnancy
by the medical practitioner where such termination is
necessitated by the diagnosis of any of the substantial foetal
abnormalities diagnosed by a Medical Board.
(2C) Every State Government or Union territory, as the case
may be, shall, by notification in the Official Gazette,
constitute a Board to be called a Medical Board for the
purposes of this Act to exercise such powers and functions
as may be prescribed by rules made under this Act.
(2D) The Medical Board shall consist of the following, namely:—
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in
the Official Gazette by the State Government or Union
territory, as the case may be.
(3)
In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is mentioned
in sub-section (2), account may be taken of the pregnant
woman’s actual or reasonably foreseeable environment.
(4)
(a) No pregnancy of a woman, who has not attained the
age of eighteen years, or, who having attained the age of
eighteen years, is a mentally ill person, shall be terminated
except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy
shall be terminated except with the consent of the pregnant
woman.”
9. 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
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would involve a risk to the life of the pregnant woman or of grave injury
to her physical or mental health”.
10. 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).
11. Rule 3B of the MTP Rules has been made in pursuance of the
provisions of clause (b) of sub-section (2) of Section 3 of the MTP Act.
Rule 3B is as follows:
“3B. 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 (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.”
12. The High Court held that since the petitioner is an unmarried
woman whose pregnancy arose out of a consensual relationship, her
X v. THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE
DEPARTMENT [DR DHANANJAYA Y CHANDRACHUD, J.]
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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.
13. On the submission that Rule 3B, insofar as it excludes an
unmarried woman, is violative of Article 14 of the Constitution, the High
Court has issued notice on the writ petition. However, it held that as of
the date of its order, it was not open to itto traverse beyond the provisions
of Rule 3B in the exercise of the jurisdiction under Article 226 of the
Constitution.
14. Prima facie, quite apart from the issue of constitutionality
which has been addressed before the High Court, 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.
15. The fundamental principle of statutory interpretation is 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. 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.
16. 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. The Parliamentary intent,
therefore, is clearly not to confine the beneficial provisions of the MTP
Act only to a situation involving a matrimonial relationship. On the contrary,
a reference to the expression “any woman or her partner” would indicate
that a broad meaning and intent has been intended to be ascribed by
Parliament. 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
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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.
17. In this case, the petitioner submits that she was deserted by
her partner at the last stage in June 2022 causing her immense mental
agony, trauma, and physical suffering. Excluding unmarried women and
single women from the ambit of the statute goes against the purpose of
the legislation. The Statement of Objects and Reasons of the MTP Act
seeks to “liberalise certain existing provisions relating to termination
of pregnancy … (1) as a health measure—when there is danger to
the life or risk to physical or mental health of the woman”.
18. A comparison between the two provisions before and after
the 2021 amendment is tabulated below:
The above table shows 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.
19. 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. In Suchita Srivastava v  Chandigarh
Administration3, this Court has recognized that a woman’s right to
reproductive autonomy is a dimension of Article 21 of the Constitution:
3 (2009) 9 SCC 1
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DEPARTMENT [DR DHANANJAYA Y CHANDRACHUD, J.]
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“22. There is no doubt that a woman’s right to make reproductive
choices is also a dimension of “personal liberty” as understood
under Article 21 of the Constitution of India. It is important to
recognise that reproductive choices can be exercised to procreate
as well as to abstain from procreating. The crucial consideration
is that a woman’s right to privacy, dignity and bodily integrity should
be respected. This means that there should be no restriction
whatsoever on the exercise of reproductive choices such as a
woman’s right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive methods.”
In Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India
and Ors,4 the decision of a woman to procreate or abstain from
procreating has been recognized as a facet of her right to lead a life with
dignity and the right to privacy under Article 21 of the Constitution:
“298. [p]rivacy of the body entitles an individual to the integrity of
the physical aspects of personhood. The intersection between one’s
mental integrity and privacy entitles the individual to freedom of
thought, the freedom to believe in what is right, and the freedom
of self-determination. When these guarantees intersect with
gender, they create a private space which protects all those
elements which are crucial to gender identity. The family, marriage,
procreation and sexual orientation are all integral to the
dignity of
the individual. Above all, the privacy of the individual recognises
an inviolable right to determine how freedom shall be exercised.”
The Bombay High Court in High Court on its Own Motion v.
State of Maharashtra,5 observed as follows:
“14. A woman’s decision to terminate a pregnancy is not a frivolous
one. Abortion is often the only way out of a very difficult situation
for a woman. An abortion is a carefully considered decision taken
by a woman who fears that the welfare of the child she already
has, and of other members of the household that she is obliged to
care for with limited financial and other resources, may be
compromised by the birth of another child. These are decisions
taken by responsible women who have few other options. They
are women who would ideally have preferred to prevent an
4 (2017) 10 SCC 1
5 2017 Cri LJ 218 (Bom HC); (2016) SCC OnLine Bom 8426
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unwanted pregnancy, but were unable to do so. If a woman does
not want to continue with the pregnancy, then forcing her
to do so represents a violation of the woman’s bodily
integrity and aggravates her mental trauma which would
be deleterious to her mental health”
(Emphasis Supplied)
20. Denying an unmarried woman the right to a safe abortion
violates her personal autonomy and freedom. Live-in relationships have
been recognized by this Court. In S Khusboo v. Kanniammal,6 this
Court observed that criminal law should not be weaponized to interfere
with the domain of personal autonomy. It was observed:
“46. While there can be no doubt that in India, marriage is an
important social institution, we must also keep our minds open to
the fact that there are certain individuals or groups who do not
hold the same view. To be sure, there are some indigenous groups
within our country wherein sexual relations outside the marital
setting are accepted as a normal occurrence. Even in the
societal mainstream, there are a significant number of
people who see nothing wrong in engaging in premarital
sex. Notions of social morality are inherently subjective
and the criminal law cannot be used as a means to unduly
interfere with the domain of personal autonomy. Morality
and criminality are not co-extensive.”
(Emphasis Supplied)
21. On the above premises, we are inclined to entertain the Special
Leave Petition. In the meantime, we are of the view 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 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 petitioner had moved the
6 (2010) 5 SCC 600
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High Court before she had completed 24 weeks of pregnancy. The delay
in the judicial process cannot work to her prejudice.
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.
23. The report shall be furnished to this Court after compliance
with this order within a period of one week thereafter.
24. For considering the report of the Medical Board, list the Special
Leave Petition on 2 August 2022.
25. The ad interim direction of the High Court of Delhi declining
to grant interim relief shall stand modified in the above terms.
Ankit Gyan
Directions issued.
(Assisted by
: Aarsh Choudhary, LCRA)
.