The Apex Court directed that Rule 3-B of the Medical Termination of Pregnancy Rules, 2003, must be interpreted purposively to include unmarried or single women, ensuring that the right to reproductive autonomy and equality is upheld, thereby preventing discriminatory exclusion based on marital status.

ORAL JUDGMENT (PER : BHARATI DANGRE, J.):-

1. The petitioner, apart from seeking permission of the Court to undergo medical termination of pregnancy through a registered medical practitioner, also challenged the validity of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 2021 (“MTP Act”) as ultra vires the Constitution qua, “in case of such category of woman as may be prescribed by rules made under this Act” being

violative of Articles 14 and 21 of the Constitution of India. Though, by order dated 23.08.2022, this Court had directed the petitioner to be examined by expert Committee of Sir J.J. Group of Hospitals and Grant Government Medical College, Mumbai, and pursuant to the said report, the petitioner was permitted to terminate the pregnancy at a Government recognized center, however, as regards the challenge to the validity of the provision, notice was issued to the respondents.

2. The petition being filed by a 26 years old unmarried woman and her pregnancy having advanced to 22 weeks, raise a challenge to Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (as amended in 2021), by contending that she was carrying an unwanted pregnancy arising out of failure of contraceptive device and being an unwed mother, she apprehended that she may face social stigma and will not receive the support of her family, and, therefore, she is desirous of seeking termination of the pregnancy.

In the wake of the amendment under Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 in the year 2021, as regards the gestational period and also introduction of Rule 3-B in the year 2021, specifying the categories of woman who were considered eligible for termination of pregnancy, the petitioner apprehended that she would stand excluded, as there was exclusion of unmarried women and only the following were included:-

(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 imcompatible 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."

3. Since the aforesaid provision did not include an unmarried and single woman, the petitioner raise the challenge to the said provision, and according to her not permitting unwed/single woman to undergo termination of the pregnancy upto 24 weeks under the Medical Termination of Pregnancy Act, 1971 (as amended in 2021) was violative of Articles 14 and 21 of the Constitution of India.

Pitching her case on the right conferred on her by the Constitution i.e. her right to live with dignity and free from cruel, inhuman or degrading treatment, according to her was violated because of the exclusion, the Act itself would make the petitioner suffer physical pain, where she run the risk of pregnancy by compromising her mental health due to severe trauma of giving birth to an infant, unwanted to the society.

4. With this challenge being raised, we requested for assistance of the Assistant Solicitor General as the Rules were framed by the Union of India, and we do not have any affidavit on record opposing the said petition.

However, during the pendency of the petition before us, the learned counsel representing Union of I