In a significant order, the Supreme Court Thursday expanded the scope of the Medical Termination of Pregnancy Act to include 'unmarried woman' and allowed a woman to abort her 24-weeks pregnancy arising out of a consensual relationship.
A bench of Justices DY Chandrachud, Surya Kant, and AS Bopanna directed the All India Institute of Medical Sciences director to set up a medical board of two doctors to examine the woman by Friday under the provisions of the Medical Termination of Pregnancy Act.
It asked the board to determine whether the pregnancy if terminated could risk the life of the woman or not.
"We request the AIIMS director to constitute a medical board in terms of provisions of section 3(2)(d) MTP Act by tomorrow (Friday). In the event the medical board concludes that the foetus can be aborted without any danger to the life of the petitioner (woman), the AIIMS shall carry out the abortion in terms of the petition...," the bench said.
The top court sought the report of the medical board within one week of the procedure and said that the order of the Delhi high court stands modified to the above extent.
The bench said that provisions of the MTP Act amended in 2021 include the word "partner" instead of "husband" in the explanation to section 3, which shows the intent of Parliament that it was not to confine the situations arising only out of matrimonial relationships.
It said that the use of the word "partner" ascribes to an intention of Parliament to cover "unmarried woman" under the Act which is in consonance with the Constitution.
It added that the Delhi high court had taken an unduly restricted view by not allowing the woman to undergo medical termination of pregnancy at 23 weeks arising out of a consensual relationship on the ground that she was "unmarried".
The bench sought the assistance of additional solicitor general Aishwarya Bhati on the interpretation of the provisions of the Act and observed that allowing the petitioner woman to suffer an unwanted pregnancy will be contrary to the object and spirit of the legislation.
It said that the petitioner should not be denied the benefit of the law merely on the ground that she is an unmarried woman.
The bench noted that she is the eldest of five siblings and her parents are agriculturists.
It said that the woman has submitted that she being qualified in Bachelor of Arts and without any adequate source of livelihood, it would be difficult for her to raise and nurture the child.
The top court said that the woman who was in a consensual relationship in the month of June had come to know about her pregnancy and during the examination, it was found that she was 22 weeks pregnant and she decided to terminate the pregnancy.
The high court had denied the permission to abort saying that it virtually amounts to killing the foetus.
In an order issued on July 16, a Delhi HC bench refused to grant permission to the woman to abort the 23-week foetus, saying it is not permitted under the abortion law after 20 weeks for pregnancy arising out of a consensual relationship.
The high court, however, sought the Centre's response on the woman's contention that the exclusion of unmarried women from being allowed to undergo medical termination of pregnancy up to 24 weeks, was discriminatory.
The petitioner, a 25-year-old woman, had told the court that her partner, with whom she was in a consensual relationship, had refused to marry her.
She had stressed that giving birth outside wedlock would cause her psychological agony as well as social stigma and she was not mentally prepared to be a mother.
The high court, while dealing with the plea, had said the court cannot go beyond the statute while exercising its power under Article 226 of the Constitution.
"The petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003," the high court noted in its order dated July 15.
"As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (which excludes unmarried women) stands, and this court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the statute," it had said.
Before passing the order, the high court had suggested that the petitioner can be kept "somewhere safe" until she delivers the child who can subsequently be given up for adoption.
"We will ensure that the girl is kept somewhere safe and she can deliver and go. There is a big queue for adoption," the court had said.
After the lawyer turned down the court's suggestion, it said that it would pass an order on the petition.
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