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Judgement of a case in delhi recently was very imp its related to female foeticide
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Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No 5802 of 2022 (Arising out of SLP (C) No 12612 of 2022)
X ... Appellant
versus
The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. …Respondents
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 of the MTP Act and MTP Rules .......................................................................................................... 55
A. Background
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.
(^12) WP(C) 10602/2022“MTP Act” (^34) “MTP Rules”CM Application 30708/
(ii) In the event that the Medical Board concludes that thefetus can be aborted without danger to the life of the petitioner, a team of doctors at the All India Institute ofMedical Sciences shall carry out the abortion in terms of the request which has been made before the High Courtand which has been reiterated both in the Special Leave Petition and in the course of the submissions before thisCourt by counsel appearing on behalf of the petitioner. Before doing so the wishes of the petitioner shall beascertained again and her written consent obtained after due verification of identity.”
B. 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;
(^5) “AIIMS”
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.
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. 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;
requirements to be fulfilled for 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.
“Section 3 - When pregnancies may be terminated byregistered medical practitioners (1) Notwithstanding anything contained in the Indian PenalCode (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that code or under anyother law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of thisAct. (^2) pregnancy may be terminated by a registered medical[(2) Subject to the provisions of sub-section (4), a practitioner,-- (a) where the length of the pregnancy does not exceedtwenty weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twentyweeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rulesmade 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 riskto 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, itwould suffer from any serious physical or mental abnormality. Explanation 1.--For the purposes of clause (a), where anypregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose (^6) “MTP Amendment Act 2021”
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 thepregnant 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 thepregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (2A) The norms for the registered medical practitionerwhose opinion is required for termination of pregnancy at differentprescribed by rules made under this Act. gestational age shall be such as may be
(2B) The provisions of sub-section (2) relating to the lengthof the pregnancy shall not apply to the termination of pregnancytermination is necessitated by the diagnosis of any of the by the medical practitioner where such substantial foetal abnormalities diagnosed by a MedicalBoard.
(2C) Every State Government or Union territory, as thecase may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for thepurposes 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 inthe Official Gazette by the State Government or Union territory, as the case may be. (3) In determining whether the continuance of a pregnancywould involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of thepregnant woman’s actual or reasonably foreseeable environment. (4) (a) No pregnancy of a woman, who has not attained theage of eighteen years, or, who having attained the age of
question (or in the case of pregnancies between twenty and twenty-four weeks, not less than two registered medical practitioners) is, in good faith, of the opinion that:
a. The continuance of the pregnancy would put the pregnant woman’s life at risk (Section 3(2)(i)); b. The continuance of the pregnancy would involve grave danger to the pregnant woman’s physical health (Section 3(2)(i)); c. The continuance of the pregnancy would involve grave danger to the pregnant woman’s mental health (Section 3(2)(i)); or d. There is a substantial risk that the child would suffer from a serious physical or mental abnormality, if it is born (Section 3(2)(ii)).
In determining whether the continuation of the pregnancy would involve grave danger to the pregnant woman’s physical or mental health, her actual or reasonably foreseeable environment may be taken into account.^13 We are of the opinion that significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy.
(^13) Section 3(3), MTP Act
number of children or preventing pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman, if the pregnancy has not exceeded twenty weeks. A similar legal presumption is provided for in Explanation 2, which stipulates that where a woman alleges that a pregnancy was caused as a consequence of rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to her mental health. The legal presumption in Explanation 2 is applicable to all pregnancies which have not exceeded twenty-four weeks.
(^1415) Section 4(a), MTP ActSection 5(1), MTP Act (^1617) Section 5A, MTP ActSection 6, MTP Act (^18) Section 7, MTP Act
(disaster or emergency situations as may be declared by g ) women with pregnancy in humanitarian settings or the Government.” D. Barriers to accessing safe and legal abortions
i. RMPs’ fear of prosecution
pregnancy is a criminal offence under the IPC, unless it fulfils the conditions laid down in the MTP Act, including who can terminate a pregnancy, the place where termination can take place, and the specific conditions in accordance with which such termination is permissible. Section 5(2) provides penalties when termination of pregnancy is carried out by a person who is not an RMP. Section 5(3) provides penalties when termination of pregnancy is carried out in a place other than that mentioned in Section 4. RMPs and women seeking termination of pregnancy are exempted from any legal action under the provisions of the IPC mentioned above only when these conditions are fulfilled.
(^24) Review 2 (2019) (^) Dipika Jain, Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach, 12 NUJS Law (^25) S. Khushboo v. Kanniammal, (2010) 5 SCC 600; Shreya Singhal v. Union of India, (2015) 5 SCC 1
(^28) Maharashtra, 2021 SCC Online Bom 9339; ABC v. State of Maharashtra, (2018) 4 Mah LJ 374, 2018 SCC Online (^) See XYZ v. State of Maharashtra, 2018 SCC OnLine Bom 13751; Prabhavati Dattatray Jadhav v. State of Bom 144; A v. State of Maharashtra, 2022 SCC OnLine Bom 1361; D. Rajeswari v. State of Tamil Nadu, 1996 CriLJ 3795; X v. Govt. of NCT of Delhi, 2013 SCC OnLine Del 4929; Puja Kumari v. State of West Bengal, 2019 SCC Online Cal 1277; Velunatchiyar v. Govt. of Tamil Nadu, 2021 SCC Online Mad 5047; M. Kala v. The Inspector ofPolice, 2015 SCC OnLine Mad 7767 (^2930) Section 3(2)(b), MTP Act 1971(2018) 11 SCC 572
pregnancy before the passage of twenty weeks, despite the woman seeking an abortion on the ground that she was a victim of rape. This Court also rebuked the “negligence and carelessness” of the authorities in failing to terminate the pregnancy as permitted by law. It noted that the proceedings in the High Court were unduly delayed, leading to a situation where the pregnancy could not be terminated without endangering the life of the woman in question. Compensation was awarded to the petitioner (i.e., the pregnant woman).
ii. Social stigma surrounding unmarried women
(^31) (2000) 4 SCC 110
