Rule preventing unmarried women from abortion after 20 weeks challenged, Delhi HC seeks Centre’s response


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Dismissing her application seeking permission for termination of a pregnancy of 23 weeks and 5 days, the Delhi High Court in an order released on Saturday said that the 25-year-old unmarried woman’s case is not covered under the Medical Termination of Pregnancy Act.

Also, the court sent notice to the Centre regarding her plea for unmarried women to be included in Rule 3B of Medical Termination of Pregnancy Rules 2003. This rule allows certain women to terminate a pregnancy between 20 and 24 weeks. The government was asked to respond by August 26.

The division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad on Friday had said that it “will not permit” the woman to undergo medical termination of pregnancy at past 23 weeks, saying it would “virtually” amount to “killing the child”, and suggested that she should give birth and opt for adoption instead.

“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. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case,” the division bench said in the order.

The woman is a permanent resident in Manipur, and currently lives in Delhi. According to her lawyer, the pregnancy is a result of a consensual relationship. She cannot have the child because she is unmarried and her partner has refused to marry her. It was further argued before the court by her lawyer that in case the unmarried woman, who is only an Arts graduate, gives birth to the child, it will lead to her “ostracisation” and cause her mental agony. She was “ditched” by her partner at the last moment as he backed out of the promise of marriage, the court was told.

During the hearing on Friday, the court had said, “We will not permit you to kill the child; 23 weeks are over. How many weeks will the child remain in the womb to allow for normal delivery? It is hard to tell how many weeks remain. Adopt the child. Why are you killing the child?” said the division bench.

The woman challenged Rule 3B of Medical Termination of Pregnancy Rules 2003. It states that only certain women are permitted to terminate a pregnancy between 20-24 week.

Women who have suffered sexual assault, rape or incest can apply for relief under the rule. Minors and changes of marital status during an ongoing pregnancy (widowhood or divorce) are eligible. Women with disabilities are also eligible. [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016]The foetus malformation, which may result in serious handicapping or incompatibility with life; and pregnant women in humanitarian or disaster situations.

Dr Amit Sharma, her counsel, had told the court that her case is covered under Section 3(2)(b)(i) of the Medical Termination of Pregnancy Act, according to which a pregnancy between 20-24 weeks can be terminated if two doctors are of the opinion 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”. He claimed that Rule 3B violates Article 14.

In an order, however, the court stated that Section 3 (2)(b) of Act only applies to women who are covered by the 2003 Rules. “Whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this court,” said the bench.

The court stated that Rule 3B was in force as of today. It cannot be extended beyond this statute. “In view of the above, this court is not inclined to entertain the interim application at this stage,” it said.

Friday’s court had ruled that the woman was not required to have the child, and that she would be sent to a good hospital. “Your whereabouts will not be known to anyone. You will deliver the baby. Please come back. The government of India or Delhi or any other good hospital will take care of everything. If the government does not pay… I am there to pay,” it said.

While the law permits termination of a pregnancy of up to 20 and 24 weeks provided the women meet the conditions stipulated under the MTP Act and MTP Rules, the pregnancy beyond that period can only be terminated if doctors are of the view that the termination is “immediately necessary to save the life of the pregnant woman”.


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