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” 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 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 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 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 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 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 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] S. Khushboo v. Kanniammal, (2010) 5 SCC 600 : [2010]
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