Supreme Court’s boost to Reproductive Rights in India

The Hon’ble Supreme Court of India, in a recent judgment reaffirmed the right of an unmarried woman to safely and legally terminate her pregnancy. Widely hailed as a progressive judgment, the Supreme Court’s interpretation of the Medical Termination of Pregnancy Act, 1971 (“the Act”) can have a significant impact in the lives of scores of women, especially in a country like India.

As observed by the Hon’ble Supreme Court, the stigma associated with pre- marital sex, pregnancies and abortions in India cannot be overstated. The

Supreme Court rightly observed that there is no reasonable basis for denying unmarried women the right to seek a safe and legal abortion. It is not secret that millions of women India are forced to seek unsafe methods of termination of pregnancy which has harmed the lives of the pregnant women as well as the children who were born out of such pregnancies.


The judgment was passed in an appeal against the judgment of the Hon’ble High Court of Delhi dated 15 July, 2022. Ms. X (hereinafter referred to as “the Appellant”) had filed a Writ Petition seeking permission to terminate her pregnancy along with certain other reliefs. The Appellant was a spinster who was in consensual relationship. The Appellant’s “partner had refused to marry her at the last stage.” The Appellant wanted to terminate her pregnancy as she did not want to face the stigma attached with it and was not ready to raise a child.

The Judgment:

In essence, the scope of the appeal was restricted to interpretation of Section 3 (2) (b) of the Act and Rule 3B of the Medical Termination of Pregnancy Rules, 2003 (hereinafter referred to as “the Rules”).

The Hon’ble High Court of Delhi had rejected the Writ Petition stating that the pregnancy in the said case was not covered by the Rules. Therefore, the Act will not be applicable.

The Hon’ble Supreme Court analysed Section 3 (2) (b) of the Act and Rule 3B of the Rules. For ease of reference, the said provisions have been reproduced below:

“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 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, — ….. (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—

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.”

“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 subsection (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 incompatible 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.”

Applying the principle of purposive interpretation, the Supreme Court noted that a subordinate legislation should be interpreted in the context of the parent act. Thus, the subordinate legislation must be interpreted in a manner that gives the appropriate effect to the parent act. It laid down that identifying the intention of the legislature is imperative.

Further, the Supreme Court also emphasized on the transformative nature of the Constitution of India and consequently, the laws made under its mandate. It laid down that laws must be enacted, interpreted and enforced keeping in mind the changing times and societal values. While marriage continues to have an important place in Indian society, the nature of relationships has evolved. The idea of a domestic partnership without entering into a marriage is more common than ever before. Various laws such as the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 have extended the beneficial provisions of the respective statutes to unmarried women as well. It therefore laid down that the Act and the Rules must be interpreted with the same dynamic mind-set.

The Hon’ble Supreme Court noted that the Act was passed to replace the corresponding erstwhile provisions of the Indian Penal Code. The Indian Penal Code had made it a criminal offence for the woman and the doctor in instances of abortions, except where the procedure was done in good faith and to save the woman’s life. The Act as it stood prior the 2021 Amendment made it legal for married women to undergo abortions within 20 weeks and doctors were no longer criminally liable for carrying out the medical procedure. As a result of the amendment of the Act in 2021, the benefits under the Act was extended to unmarried woman as well, besides extending the period within which pregnancy can be terminated to 24 weeks.

Another noteworthy observation of the Supreme Court was the emphasis on mental health. Section 3(2)(b) lays down that the woman can seek termination of pregnancy where the continuance of the pregnancy can cause grave injury to her mental or physical. The Apex Court laid down that the term “mental health” ought to be given a wide connotation. The contours of mental health cannot be confined to medical terms or medical language. There are several

factors such as one’s surroundings that can determine one’s mental health. The Court laid down that instances where young women have parted ways from their partners or otherwise not ready to become mothers or the continuance of the pregnancy would cause grave injury to their mental or physical health are valid grounds for seeking termination of pregnancy. It is thus clear that it is not just under extreme circumstances that a woman seek termination of pregnancy.

However, perhaps the most significant aspect of the judgment is the recognition of the concept of marital rape. On this note, the Supreme Court explicitly stated that the recognition of marital rape under the Act will not have effect of striking down Exception 2 to Section 375 of the IPC, which removes marital rape from the ambit of rape. This issue is sub-judice before the Apex Court. Whether the Apex Court will strike down the exception or not remains to be seen. However, the recognition of marital rape as a ground for seeking termination of pregnancy under the Act is certainly a positive step. Moreover, the Supreme Court also emphasised on the need to protect victims of incestuous rape under the Act. Unfortunately, in India, instances of marital and incestuous rape are not uncommon. Recognition of the problems by the Apex Court in this manner is an important step.

Another important aspect of the judgment is the emphasis on the right to reproductive autonomy. The Court explicitly laid down that the right of women to freely decide whether to have children or not. The Court recognized that the various factors such as caste, family, society, and religion affect the decision of women in such cases. The Court emphasized that such decisions must not be affected by coercion or such factors. A woman undergoing pregnancy often suffers from a myriad of side-effects. Therefore, only a woman undergoing pregnancy should have the right to decide whether she is to carry the pregnancy to term or not. Moreover, the Supreme Court also stated that this right is enshrined in Article 21 of the Constitution of India. The Court further went on to hold that this right is within the realm of personal liberty and the right to privacy.

This article has been written by Ms. Diksha Shetty – Dispute Resolution Team, AAK Legal, Advocates & Solicitors.

Disclaimer – This article is meant for informational purposes only. The contents of this article are not to be construed as legal advice. The views expressed in the article are those of the authors and do not necessarily reflect the views of the firm. The copyright to the article rests solely with the authors and the firm.

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