X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi

Case Title: X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi
Citation: 2022 SCC Online SC 905
Court: Supreme Court of India

Name of the Judges: Justice D.Y. Chandrachud, Justice A.S. Bopanna, and Justice J.B. Pardiwala

Bench Type: Division Bench (Three-Judge Bench)

Exact Date: 29 September 2022

Brief Description of the Petitioner (X):

• The petitioner was about 14 years of age. Who became pregnant as a result of assault.
• The petitioner approached the Delhi high court seeking termination of her 28-week pregnancy under the Medical Termination of Pregnancy (MTP) Act, 1971.
• The petitioner challenged the limitations imposed by the MTP Act on terminating pregnancy beyond 24 weeks, expect in certain cases.

Brief Description of the Respondent:

• The respondent was the Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi.
• The respondent represented the state health department, responsible for the implementation of the MTP Act and providing access to medical services.
• The state has the task to respond to the plea and constitute a Medical Board to assess the health and viability of termination of the pregnancy before 24 weeks.

Facts:

This case relates to unmarried women’s rights to an abortion under the 2021 Medical Termination of Pregnancy (MTP) Act. It specifically involves the interpretation of Section 3(2) (b) of the MTP Act, which permits termination of pregnancy between 20 to 24 weeks, and Rule 3B of the Medical Termination of Pregnancy Rules, 2021, which lays down specific categories of women eligible for such termination.

A 23-year-old unmarried woman approached the Delhi High Court seeking permission to terminate her 23-week-old pregnancy. The appellant claimed that although her partner later declined to marry her, the pregnancy was the consequence of a consensual relationship. The pregnancy consequently became undesired.

She submitted that continuing with the pregnancy would subject her to social stigma, mental anguish, and harassment, to which women particularly unmarried women are more vulnerable in Indian society.

The petitioner sought termination of her pregnancy under Section 3(2) (b) read with Rule 3B(c) of the MTP Rules, which allows termination in cases involving a “change in marital status when the pregnancy is still going on (for example, widowhood or divorce). However, the Delhi High Court ruled that married women are the only ones who can benefit from this clause, while unmarried women are not covered under Rule 3B(c).Accordingly, the High Court denied permission for the termination of pregnancy. The appellant then challenged this decision before the Supreme Court of India.[1]

Issues:

• Whether the exclusion of unmarried women from the scope of Rule 3B of the Medical Termination of Pregnancy Rules, 2003 is constitutionally valid.
• Whether an unmarried woman who becomes pregnant after 20 weeks as a result of a consensual relationship is entitled to seek termination of pregnancy under Section 3(2) (b) of the MTP Act, 1971.
• Whether such exclusion violates the fundamental rights guaranteed under Articles 14 (Right to Equality), 19(1) (a) (Freedom of Expression), and 21 (Right to Life and Personal Liberty) of the Constitution of India.

Arguments of both sides:

Arguments by the Petitioner (Unmarried women) –

1. The petitioner argued that keeping in mind the changes in the society Rule 3B(c) of MTP Rule, 2003 should be broadly interpreted to include unmarried women as well.
2. The petitioner argued that denying her permission to terminate her unwanted pregnancy which has arisen out of a consensual relationship will cause her emotional and mental turmoil as she will be subject to social stigma that comes due to engaging in pre-marital sexual relationship.
3. Denying her access to safe and legal abortion because of her marital status will violate her fundamental rights, such as- a) Article 14(right to equality) the discrimination between married and unmarried women is not constitutionally justified, as it violates principle of equality. b) Article 19 (right to make reproductive choices). c) Article 21 (right to bodily autonomy).

Arguments by the Respondent (State/ Health department) –

1. The state submitted that Rule 3B(C) of MTP Rule merely applies to married women, facing changes in their marital status during ongoing pregnancy.
2. It is argued that the rule nowhere includes unmarried women and thus the termination of the pregnancy must be done considering the statutory limitation placed by the MTP Rules and any modification would require an amendment by the legislature.
3. The respondent submitted that these Rules carefully draws a balance between Reproductive Rights of the women and states interest in protecting potential life by specifying conditions under which termination of pregnancy is allowed.

Judgment:

Regardless of marital status, the Supreme Court ruled that all women have the right to a safe and legal abortion. The apex court held that the marital status of a woman cannot be the basis to deprive her of the right to abort an unwanted pregnancy, as it would violate her fundamental right under Article 14 of the Constitution (right to equality), as the discrimination between married and unmarried women is “artificial” and constitutionally unsustainable, because the idea that only married women engage in sexual activity is maintained.

 The Supreme Court noted that the meaning of rape must be held to include marital rape for the purpose of medical termination of the pregnancy. The court further held that the decision to abort or continue the pregnancy is intrinsic to reproductive autonomy, and denying the woman a safe and legal abortion would be violative of her fundamental right under Article 21, and the right to dignity is an important part of Article 21; therefore, forcing a woman to continue her pregnancy would infringe this right.

According to the court, there is no justification for excluding unmarried women from the scope of Rule 3B, especially in light of Rule 3(2)(b) of the MTP Act. The Court said that there should be an inclusive interpretation of Rule 3B, and that the use of the phrase “any woman” in Section 3(2)(b) of the MTP Act, after the 2021 amendment, signifies clear legislative intent to extend the benefit of abortion rights to all women, not just specific groups like married women, widows, etc. Therefore, excluding unmarried women will lead to a restrictive interpretation of Rule 3B, which will lead to discrimination between married and single women, violating Article 14 of the Constitution. Therefore, the Supreme Court interpreted the 2021 amendment in a purposive and inclusive manner in which the word “married women” was replaced by any women and the word “her husband” was replaced by partner and held that the distinction between married and unmarried women is unconstitutional and in violation of Articles 14 and 21, and expanded the scope of the amendment, holding that all women, regardless of their marital status, have the right to safe and legal abortion. The Court further explained that women have the right to bodily autonomy, which must be respected, and that licensed medical professionals cannot refuse abortions based on a patient’s marital status.[2][3]

 Legal Reasoning:

1. Article 21 (Right to dignity, autonomy of the body, and privacy):

The Court rightly applied Article 21, according to which every person should have the right over their own body. Article 21 gives the right of reproductive autonomy, and it depends upon the discretion of a woman to bear a child or not. Furthermore, the dignity of a woman, which is a central facet of Article 21, cannot be compromised by denying a woman safe and legal abortion based merely on her marital status.

Additionally, the Court cited the ruling in K.S. Puttaswamy v. Union of India (2017), the Supreme Court ruled that a woman’s freedom to make decisions about her own body and reproductive options is protected by Article 21’s guarantee of the right to privacy.

2. Article 14 (Right to Equality):

Since it creates a “artificial” division between married and unmarried women, denying a woman the ability to abort an undesired child because of her marital status is a flagrant breach of her rights as a woman under Article 14 of the Constitution, which assures equal rights to all.

A single woman may have suffered from similar circumstances as that of a married woman, like a change in marital status, being a victim of domestic violence during pregnancy, being abandoned without a job, or going through physical disabilities.

3. Expanded the Scope of Rule 3B:

The Court held that Rule 3B, which specifies the categories under which women are allowed to terminate the pregnancy between 20–24 weeks, should be interpreted in a purposive and inclusive manner to include unmarried women with unwanted pregnancies. Although the Rule does not explicitly cover unmarried women in consensual relationships, the Court expanded its scope to include them, stating that a woman’s marital status should not be the justification for denying her access to a safe and authorized abortion. Therefore the court expanded the interpretation of the word “married women” and “her husband” in Rule 3B to include any women and partner, this interpretation of Rule 3B perfectly aligns with the purpose and object of the MTP Act and constitutional values.[4]

4. Recognition of Marital Rape for Abortion Purposes:

The Supreme Court recognized for the first time that marital rape must be included in the definition of rape under the MTP Rules in order for it to be covered by the MTP Act and Rules.

The Court ruled that the definition of “sexual assault or rape” in Rule 3B (a) should be read to encompass forced sexual relations by a husband, notwithstanding the IPC’s marital rape exception. This is reflects a progressive take of the court that married women are not excluded from accessing safe and legal abortion just because marital rape is an exception under section 375 of IPC. The court has expanded the meaning of “rape or “sexual assault” under Rule 3B (a) (categories of women who are allowed to access abortion between 20-24 weeks old gestation) of the MTP Rules, which address rape crimes as well as non-criminal forceful sexual intercourse such as –  Rape victims under IPC , Victims of marital rape, Minors and children who are pregnant due to sexual assault, Women in abusive and coercive relationship, Mentally ill or mentally challenged women, Women who became pregnant due to incestuous relationship, Women in precarious situations who might not be able to approach the court.Married women may also be among those who have survived rape or sexual assault. A husband’s non-consensual actions may result in a wife becoming pregnant. All forms of sex and gender-based violence have occurred within families, according to Justice Chandrachud.

Significances and Impact of Supreme Court Ruling on Unmarried Women Seeking Abortion

Significance:

The Supreme Court’s decision in the case X v. Principal Secretary, Health and Family Welfare Department (2022), is a significant step that reinforced reproductive autonomy for unmarried women seeking abortion in following ways:

• The court gave purposive and inclusive interpretation of Rule 3B of the MTP Rules, by making it clear that the listed categories are illustrative and not exhaustive and the laws must be broadly interpreted.
• The judgment struck down the basis that refusal to terminate an unwanted pregnancy shall not be done solely on the basis of women’s marital status and doing so will result in the arbitrary division of women into married and single categories.  This reinforced Article 14 (Right to equality).
• The decision of the Supreme Court made it perfectly clear that the decision to abort an unwanted child is a part of women’s bodily autonomy and the right to choose is one of the main aspects of Article 21.
• The judgment’s observations regarding teenage access to abortion make up a sizable portion. According to Section 19 of the POCSO Act, 2012, which mandates the reporting of any sexual conduct involving a “child,” the RMP is required to report a statutory rape offense when a teenager seeks abortion services. The court read the MTP with POCSO and determined that doctors are exempt from disclosing the identity and personal information of the adolescent seeking an abortion when they file a report under Section 19 of the POCSO Act since these requirements make it more difficult for minors to receive abortions.
• The court broke a new legal ground by recognizing marital rape as valid ground for abortion under Rule 3B of MTP.
• The ruling is not only significant from legal point of view, but also marks a shift in how bodily autonomy, marital status, and reproductive decisions are interpreted in Indian constitutional Law.

Impact:

The judgment had a very transformative and progressive impact, such as:

• The ruling broke down the stereotype that only married women engage in sexual activity.
• The judgment expands access to necessary reproductive healthcare so that individuals are not forced to take steps that to lead to unsafe abortions, thereby reducing instances of unsafe abortion and maternal mortality.
• The judgment acknowledge the mental agony and emotional distress women face due to social stigma attached to premarital sexual intercourse.
• This historical judgment will have a direct & positive impact on the reproductive rights of unmarried or single women in India.
• In any registered facility authorized by the government, any unmarried or single woman can now end an unintended pregnancy up to 24 weeks without needing the permission of her parents, spouse, or partner.

Critical Opinion

I agree with the Supreme Court’s judgment in X v. Principal Secretary because, in a world where there has been considerable backsliding of women’s reproductive rights, this landmark judgment not only recognized the fundamental rights of women but also helped in creating a conducive environment that expands access to safe and legal abortion.

 The judgment not only considered the mental agony and emotional distress women experience due to pregnancies before marriage as they are subjected to social stigma and harassment but It also took into account the fact that women are more likely than men to leave their jobs.

 One of the biggest reasons for this burden that unwanted marriage and motherhood poses for them, along with stigma that working mothers have to face. Therefore, this judgment not only covers the impact on mental and physical health outcomes of women, but also considers economic prosperity by emphasizing freedom of reproductive choice and breaking down the notion that all women are destined for motherhood and domesticity, against their will.

The judgment of the Supreme Court was delivered keeping in mind the changing norms of society. It reflects a modern outlook by recognizing live-in relationships and making it clear that moral or social disapproval cannot form the basis for constitutional restrictions. In the case Navtej Singh Johar v. Union of India (2018)[5], the Court held that constitutional morality prevails over social morality.

The Supreme Court rightly held that denying abortion would violate Article 21 — a woman’s right to make reproductive choices as part of her personal liberty — as recognized in Suchita Srivastava v. Chandigarh Administration[6] and further reinforced in K.S. Puttaswamy v. Union of India.[7]

Even after the 2021 amendment, which expanded access to safe and legal abortions, the law still fails to provide absolute reproductive autonomy, as it gives more power to medical practitioners than to the woman herself. A woman who is already undergoing emotional distress due to an unwanted or premarital pregnancy must still seek approval from a registered medical practitioner (RMP), who decides whether her case fits within the legal conditions. This makes the MTP Act provider-centric rather than rights-based.

Reference(S):

1. Legal Relevance:
   

In the legal context, it is a milestone judgment that reinforces the constitutional principles of equality, dignity and reproductive autonomy. It will serve as a legal safeguard for all women, ensuring safe and legal access to abortion.

An inclusive interpretation of the MTP Act resulted from the ruling. The Supreme Court’s decision that denying abortion to unmarried women leads to discrimination between married women and unmarried women and such discrimination is not constitutionally sustainable. The Court emphasized that such distinction arbitrary and violative of Article 14 of the constitution, and described as an “artificial” discrimination.

2. Social Relevance:

It address the stigma attached to premarital pregnancy in Indian society and how this effects the mental state of women that experience such stigma. The judgment also considered the environment of the women which will enable her to continue with the pregnancy such as her financial condition, mental and physical health, and the social circumstances.

The ruling is pragmatic as it focuses on real-world hurdles that often prevent women, especially unmarried women, from accessing safe and legal abortions. It acknowledges the social stigma, emotional distress, and institutional barriers such as judgmental medical professionals or fear of legal consequences that prevents women from seeking reproductive healthcare. By recognizing these challenges, the judgment not only protects women’s constitutional rights but also ensures that legal protections are meaningfully available in practice, not just on paper.

[1] Supreme Court of India Judgment on Abortion as a Fundamental Right: Breaking New Ground, National Library of Medicine, available at: https://pmc.ncbi.nlm.nih.gov/articles/PMC10321178/

[2] On Abortion Right of Unmarried Women, Supreme Court Gives a Major Order, Times of India, available at:
imesofindia.indiatimes.com/life-style/parenting/pregnancy/marital-status-of-a-woman-cant-be-a-ground-to-deny-or-grant-right-to-abortion-supreme-court/articleshow/94526283.cms

[3] Unmarried Persons cannot be Denied Rights Based on Narrow Patriarchal Principles on “Permissible Sex”: Key Takeaways from SC’s Historic Verdict on Right to Safe Abortion, SCC Online, available at:
https://www.scconline.com/blog/post/2022/09/29/unmarried-persons-women-cannot-be-denied-right-abortion-based-on-patriarchal-principles-about-permissible-sex-supreme-court-chundrachud-legal-research-updates-news/

[4] Is an Unmarried Woman Legally Allowed To Have an Abortion in India? Writing Law, available at: https://www.writinglaw.com/abortion-for-unmarried-woman/

[5] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, available at: https://indiankanoon.org/doc/168671544/

[6] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, available at: https://indiankanoon.org/doc/1500783/

[7] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, available at: https://indiankanoon.org/doc/127517806/