Recently, the Supreme Court of India passed a judgment where an unmarried lady was granted abortion rights under The Medical Termination of Pregnancy Act, 2021. But the question which arises here, in this case, was why an unmarried lady has to approach the highest court of our country for granting her the abortion right when the law of our country itself speaks about the abortion rights of an unmarried lady under the MTP Act, 2021. Actually, in this case, the petitioner was in a live-in relationship with a person for a long time.
It was when the petitioner conceived the person denied her marriage. The petitioner was well aware of societal norms and taboos related to unmarried mothers, so she decided to terminate her pregnancy as its continuance would create mental anguish for her. She approached the Delhi High Court under Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act, 1971, and Rule 3B(c) of the Medical Termination of Pregnancy (MTP) Rules, 2003 to terminate her ongoing 22-week pregnancy through registered medical practitioners at any approved private or government center or Hospital before 15.07.2022 as her relief will be infructuous after that as the pregnancy will be of around 24 weeks because as per the recent amendment done in the MTP Act, 2021 unmarried lady were allowed to terminate her pregnancy till 20 weeks of gestation if the pregnancy occurs as a result of the failure of any device or method used by any woman or her partner to limit the number of children or prevent pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman and for a rape victim, the maximum limit for termination of pregnancy is 24 weeks. But Delhi High Court refused to grant her the relief on the ground that an unmarried woman whose pregnancy arises out of a consensual relationship, is not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act does not apply to the facts of this case. Now for this, we have to know about Section 3(2)(b) along with Rule 3B of MTP Rules, 2021. Section 3(2)(b) of the MTP Act, 2021 states that where the length of the pregnancy exceeds twenty weeks, but does not exceed 24 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. Rule 3B of MTP Rules, 2003 (as amended on 12 October 2021) speaks about Women eligible for termination of pregnancy up to 24 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.” Here in this rule, nothing has been mentioned about the women who are live-in-relationship. That is the failure of the legislature to put the provisions of live-in-relationship here in Rule 3B. Here the Delhi High Court while rejecting the petition fails to consider that whenever there is a conflict of law between the parent act and its rules it’s the parent act that will prevail. Rule 3B should be interpreted along with Section 3 of the MTP Act, 2021.
Even in numerous judgments like in S.P.S. Balasubramanyam v. Suruttayan, 1994 AIR 133, 1994 SCC (1) 460, Payal Sharma v. Nari Niketan, AIR 2001 All 254 and Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 the honorable Supreme Court has accepted the live-in-relationship as legal and the same has been amended in Section 3(2) Explanation 1 of MTP Act, 2021 which states that For clause (a), where any pregnancy occurs as a result of the failure of any device or method used by any woman or her partner to limit the number of children or prevent pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Another important point for discussion here is that the term “anguish” which has been used in the Medical Termination of Pregnancy Act, of 2021 needs an elaborative discussion. For now, only there are two conditions where the pregnancy can cause anguish to the lady which have been mentioned in Explanation 1 and Explanation 2 of Section 3(2) of the MTP Act, 2021. The explanation given in Sec. 3 only speaks about grave injury to the mental health of the pregnant woman only when pregnancy was caused due to rape or due to failure of any contraceptive methods used to limit the number of children. It seems that the phrase does not give any broader definition. On the other hand, Belgian law gives right to women for an abortion when they feel “distressed” due to their pregnancy. Now, what is “distress” here? As per Belgian Abortion law, “distress” will cover all situations when women will not be ready for giving birth to a child. The MTP Act failed to consider the grave injury which can cause to women due to the continuation of forced pregnancy as it is not considered under this Act. The MTP Act of India is doctor centric. The World Health Organization believes that countries who permit abortion on the grounds of health should interpret health according to the definition given by “The WHO” i.e. “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” Now if we follow this definition then, in that case, abortion should be allowed both in physical and mental discomfort but the maker of the abortion law of India fails to understand the definition of health while incorporating the conditions for abortion. This is the reality of the abortion law in India; even though we have the law, we can’t avail this law because of our biased system which gives the right to married women and not to unmarried women even after amendment.
The author is HOD, Faculty of Law, ICFAI University, Raipur Chhattisgarh.