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X V The Principal Secretary, Health & Family Welfare Department Govt Of Nct Of Delhi: Case Analysis

Title: X V. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.

Division bench of 3 judges:
  • Dr Dhananjaya Y Chandrachud, J
  • A. S. Bopanna, J
  • B. Pardiwala, J
  • Neutral Citation: 2022/INSC/740
  • SCC Citation: 2022 SCC OnLine SC 1321
Date Of Judgement
29th September, 2022

Appellate jurisdiction of the Supreme Court of India

Area Of Law
  • Constitutional law
  • Statutory law
Judgement Author
Dr Dhananjaya Y Chandrachud, J

Law Applied
  • Article 14 and 21 of the Constitution of India
  • The Medical Termination of Pregnancy Act, 1971
  • MTP Amendment Act 2021
  • Medical Termination of Pregnancy Rules, 2003
Ratio Decidendi
The Apex Court bench comprising Judges D.Y. Chandrachud, A.S. Bopanna, and J.B. Pardiwala opined that the Delhi High Court's understanding of the legislation was limited in scope and overly restrictive and narrow. In response to the petitioner's request, the Supreme Court issued a temporary order granting the 25-year-old woman permission to undergo an abortion, subject to the evaluation of a medical board established by AIIMS Delhi.

The bench acknowledged the legislative amendment substituting the term "husband" with "partner" and emphasised the need for a purposive interpretation. It asserted that it is crucial to interpret the law in light of evolving societal norms. The Medical Termination of Pregnancy Act, enacted in 1971, primarily focused on married women, but in response to changing values, the legislation had to adapt to accommodate legally non-traditional family situations.

With this ruling, the Supreme Court declared the Medical Termination of Pregnancy Rules (MTPR) unconstitutional for excluding unmarried women in live-in relationships who become pregnant. The central issue before the highest court was whether this exclusion, as outlined in Rule 3B of MTPR, was justified. Justice Chandrachud, presiding over the case, argued that extending the benefits of MTPR exclusively to married women perpetuated the societal stereotype that sexual activity was confined to married individuals.

The court affirmed that unmarried women possess the same reproductive autonomy rights as their married counterparts. The Supreme Court, in its judgement, held that women have the right to reproductive decisional autonomy. 'Reproductive autonomy' simply means 'to be able to make decisions on your own concerning contraceptive use, pregnancy and childbearing'.

It is a vast spectrum with many rights under its umbrella, like the right to education and information on contraception and sexual health, the right to decide what type of contraceptives to use, the right to safe and legal abortion, etc. All these rights should be exercised freely without any coercion. Hence, women should be able to have the right to choose whether to undergo abortion or not without any third-party influence.

Women's rights have been a subject of ongoing discourse over an extended period. Women's reproductive rights represent a significant focal point within this broader discussion. Women's reproductive rights encompass their ability to make informed decisions concerning their reproductive well-being, encompassing choices related to parenthood, timing, and family size. Within this sphere, the issue of women's access to abortion has been a longstanding and contentious matter of debate.

In a groundbreaking decision in the case of X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., 2022, the Supreme Court of India ruled that unmarried women as well as survivors of marital rape have the legal right to terminate their pregnancies of 20-24 weeks under Rule 3B of the Medical Termination of Pregnancy (MTP) Rules.

The court emphasised that every woman possesses the right to reproductive autonomy, and allowing or denying termination based on marital status would violate their right to equality under the law. The Supreme Court, while delivering a landmark judgement, emphasised that in a gender-equal society, the interpretation of the MTP Act and Rules must consider current social realities.

Speaking for the bench, Justice Chandrachud noted, "A changed social context demands a readjustment of our laws. Law must not remain static, and its interpretation should keep in mind the changing social context and advance the cause of social justice". This judgement and the recent Amendment Act significantly expanded the scope of abortion rights in India.

Appellant - X
Respondent - The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.

The current case represents an appeal that has reached the Supreme Court of India, stemming from the decision rendered by a Division Bench of the High Court of Delhi on July 15, 2022. Currently residing in Delhi, the appellant holds Indian citizenship and maintains permanent residency in Manipur. This particular legal case revolved around the rights of unmarried women by the Medical Termination of Pregnancy Act, 2021 (referred to as the "MTP Act").

The case specifically examined the provisions outlined in section 3(2)(b) of the MTP Act, which permit pregnancy termination within the 20-24 week range, as well as Rule 3B of the Medical Termination of Pregnancy Rules (referred to as the "MTP Rules"), which delineates the circumstances under which such an abortion may be legally obtained.

The woman is unmarried, approximately twenty-five years of age. On July 15, 2022, she sought the intervention of the High Court of Delhi through its writ jurisdiction to request permission to terminate her pregnancy before reaching the 24-week mark. The appellant's pregnancy resulted from a consensual relationship outside of marriage. She expressed her desire to terminate the pregnancy due to the societal "stigma and harassment" experienced by unmarried single parents, particularly women.

She cited her partner's refusal to marry her as a critical factor in this decision and stated that "her partner had refused to marry her at the last stage." Furthermore, the appellant argued that, as an unemployed graduate, she was ill-prepared to raise a child as a single, unmarried mother, and continuing the pregnancy posed a "grave and significant threat to her mental well- being."

However, on July 15, 2022, the High Court of Delhi declined the appellant's request to grant permission to terminate her pregnancy and to prevent any coercive action or legal proceedings against either the appellant or the Registered Medical Practitioner involved in the termination.

The High Court's reasoning was based on the observation that the Medical Termination of Pregnancy Act 1971 (referred to as the MTP Act) did not apply to the appellant's situation since she did not fall under any of the sub-clauses specified in Rule 3B of the MTP Rules and determined that this rule exclusively applied to married women and could not be extended to unmarried women. Consequently, the court declined to grant the procedure, leading to the subsequent appeal of the case to the Supreme Court.

Dissatisfied with the High Court's decision, the appellant appealed to the Supreme Court requesting permission to terminate her pregnancy in accordance with Rule 3B of the MTP Rules, which permits abortion between the 20th and 24th weeks as stipulated in the MTP Act. Notably, Rule 3B(c) of the MTP Rules allows for pregnancy termination in cases of a "change in marital status during an ongoing pregnancy (widowhood and divorce)."

Subsequently, on July 21, 2022, the Supreme Court altered the High Court's ruling and granted permission to the appellant to terminate her pregnancy. However, this permission was granted on the condition that a Medical Board constituted under the All India Institute of Medical Sciences (AIIMS) would need to ascertain that the termination posed no risk to the appellant's life.

Point Of Law Involved
  • Does the provision in Section 3(2)(b) of the MTP Rules, 2003 raise concerns regarding its compliance with Article 14 of The Indian Constitution?
  • Is it permissible for victims of marital rape to undergo abortion without requiring their husbands' consent?
  • According to Article 21 of the Indian Constitution, do unmarried women have the right to terminate a pregnancy?
  • Does Clause C of Rule 3B in the MTP Rules and Section 3(2)(b) of the MTP Act encompass unmarried women in matters pertaining to abortion?

Submission Of Parties
Submissions by the Appellant: Dr. Amit Mishra, learned counsel appearing on behalf of the appellant, made the following submissions:
  1. The appellant was an unmarried woman whose partner had refused to marry her. She did not wish to continue the pregnancy and have the child out of wedlock as she lacked the financial resources to do so. She was not employed, and her parents were farmers;
  2. She was also not mentally prepared to raise a child by herself. If she was compelled to do so, it would cause grave injury to her physical and mental health. The appellant was not prepared to face the social stigma surrounding unwed mothers;
  3. Section 3(2)(b) of the MTP Act and Rule 3B of the MTP Rules are arbitrary and discriminatory because they exclude unmarried women from their ambit. They discriminate against women on the grounds of marital status, in violation of Article 14 of the Constitution.

Submissions by the respondent: Ms. Aishwarya Bhati, learned senior counsel and Additional Solicitor General, has ably assisted this Court in the interpretation of Section 3(2) of the MTP Act and Rule 3B(c) of the MTP Rules. She made the following submissions in support of the argument that Rule 3B(c) extends to unmarried or single women who are in long-term relationships:
  1. The interpretation of legislation must be guided by the text and context of a statute as well as the object it seeks to achieve. The Statement of Objects and Reasons of a statute must also guide its interpretation;
  2. Modern legislations ought to be read in view of the evolution of society from the time of enactment. The literal construction of beneficial legislations must be avoided, and they ought to be given a purposive interpretation;
  3. A subordinate legislation should give effect to the statute it is enacted under. If two constructions are possible, the interpretation in consonance with the statutory scheme ought to be adopted;
  4. The term "change of marital status" in Rule 3B(c) ought to be interpreted as "change in the status of a relationship" to include unmarried or single women as well as women who are not divorced but are separated or have been deserted.
  5. "Live-in relationships" are equivalent to marital relationships because, in both types of relationships, the woman is entitled to maintenance. Further, the children born out of such a relationship are vested with the right of succession. Various national legislations, including the MTP Act, do not make a distinction between married women and unmarried or single women.
  6. Women enjoy the right to bodily integrity and autonomy, as well as reproductive rights. They are entitled to exercise decisional autonomy.

Rule Of Law Applied
Rule of Purposive Interpretation: The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the purpose or object of the enactment, the mischief, and its corresponding remedy that the enactment is designed to actualise.

Ordinarily, the language used by the legislature is indicative of legislative intent. When the words or provisions in legislation tend to have two or more interpretations, the interpretation that serves the objective and purpose of the legislation should be considered. The purposive construction of the provision must be "illumined by the goal, though guided by the word."

The whole tenor of the MTP Act is to provide access to safe and legal medical abortions to women. Parliament enacted the MTP Act as a "health" measure, "humanitarian" measure and "eugenic" measure. The MTP Act is primarily beneficial legislation meant to enable women to access services for the medical termination of pregnancies provided by an RMP. Being a beneficial legislation, the provisions of the MTP Rules and the MTP Act must be imbued with purposive construction. The interpretation accorded to the provisions of the MTP Act and the MTP Rules must be in consonance with the legislative purpose.

The relevant portion of the Statement of Objects and Reasons of the MTP Act is, 3.
  1. As a health measure�when there is a danger to the life or risk to physical or mental health of the woman;
  2. On humanitarian grounds-such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.; and
  3. Eugenic grounds�where there is substantial risk that the child if born, would suffer from deformities and diseases.
The 2021 amendments in the MTP Act extended the upper limit from twenty weeks to twenty-four weeks and intended that the benefits of this legislation extend to all women, whether married or unmarried.

In the Act previous to the 2021 amendment Explanation II talked about the anguish caused by pregnancy resulting from a failure of any device or method used by any "married woman or her husband" for the purpose of limiting the number of children may be presumed to constitute a grave injury to the mental health of the woman.

But in MTP Amendment Act 2021, Explanation I provides that the anguish caused by pregnancy (up to twenty weeks) arising from a failure of a contraceptive device used by "any woman or her partner" either for limiting the number of children or for preventing pregnancy can be presumed to constitute a grave injury to a woman's mental health.

Replacing "married woman or her husband" with "any woman or her partner" shows the intent of the legislature to extend the scope of section 3 to all women and pregnancies that occur outside the institution of marriage under the protection of the Act.

Analysis Of Judgement
In the case of X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., the Supreme Court adopted a purposive interpretation rather than a restrictive one. The court's decision is considered groundbreaking due to its progressive stance.

This ruling aims to significantly elevate the importance of the right to privacy and dignity ensured under Article 21 of the Constitution, as well as the physical and reproductive autonomy of women. Article 21 asserts that both married and unmarried women have an equal entitlement to the freedom to make choices regarding parenthood.

The court held:
"A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14."

The judgement intends to significantly elevate the right to privacy and dignity as guaranteed by Article 21 of the Constitution, as well as the physical and reproductive autonomy of pregnant women. The freedom to choose whether or not to have children is guaranteed under Article 21 for both married and unmarried women equally.

The court broadly defined "mental health" to encompass more than just the absence of mental impairment or illness. It recognised that an unwanted pregnancy could be considered detrimental to mental health, in accordance with Section 3(2)(b) of the MTP Act. The court noted, "The determination of the status of one's mental health is located in oneself and experiences within one's environment and social context.

Our understanding of the term mental health cannot be confined to medical terms or medical language but should be understood in common parlance." Additionally, the bench made a noteworthy observation by rejecting the distinction between the rape of an unmarried woman by a man and that of a married woman by her husband, as well as the assumption that a husband cannot commit rape against his wife.

It was ruled that the term 'rape' under Rule 3B of the MTP Act also covers 'marital rape'. "Notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the words "sexual assault" or "rape" in Rule 3B(a) includes a husband's act of sexual assault or rape committed on his wife. The meaning of rape must therefore be understood as including marital rape solely or the purposes of the MTP Act and any rules and regulations framed thereunder."

The Hon'ble Court left the constitutional validity to be decided in other appropriate proceedings by this Hon'ble Court as the challenge to Exception 2 to Section 375 of the IPC 1860 is pending for consideration in the Supreme Court before another Bench of Judges.

Furthermore, it was established that to qualify for the provisions outlined in Rule 3B(a) of the MTP Rules, a woman is not obligated to initiate formal legal proceedings to demonstrate the occurrence of 'sexual assault, rape, or incest.' There is also no requirement to file an FIR or substantiate the rape allegations in a court of law for them to be recognised as valid under the purview of the MTP Act.

Consequently, this verdict represents a significant milestone in acknowledging women's right to their physical and reproductive autonomy.

The court, whilst delivering the judgment, reiterated that distinction based on marital status for termination of pregnancy is 'artificial and constitutionally unsustainable'. It reinforces the stereotype that only married people are engaged in sexual activities. With the evolution of society, the laws and interpretations of legislation must evolve to meet the aspirations of the masses and society.

The abortion law, while touted as a legal framework protecting pregnant persons' rights, was not a rights-based legislation. The right to access safe abortions 'at will' remain aspirational for the majority of pregnant persons in India. This landmark, historic decision paved the way for abortion on demand, creating a pregnant person's right in India. Further, the criminalisation of abortion is acknowledged by Justice Chandrachud to impede access.

As we move forward, decriminalising abortion will reverse the "chilling effect" on RMPs (Registered Medical Practitioners), making it more likely that they will grant abortions rather than involve courts. And most importantly, the decision to terminate an unwanted pregnancy now vests only with the pregnant person in India, making it a rights-based legal framework. The MTP Act must, therefore, be read and implemented accordingly. However, in order for the impact of this verdict to translate on the ground, the legislative framework must be amended to remove the ambiguities and other barriers taken note of by the Court.

Until recent decades, marital rape was commonly perceived as non-existent. Many countries worldwide once exempted married couples from prosecution for rape if the perpetrator was not a stranger and was the spouse of the victim at the time of the offence. Consequently, it was not until the 1970s-80s that the United States saw its first conviction for marital rape.

In India, a significant percentage (32%) of married women have experienced spousal violence, encompassing physical, sexual, or emotional abuse. Out of 195 countries globally, 150 have recognised marital rape as a criminal offence, taking steps to criminalise it as of 2019. These countries include Norway, Canada, New Zealand, France, Sweden, all fifty U.S. states, the Soviet Union, and Poland.

However, in India, marital rape has not been officially recognised as a crime and has not been criminalised to this day. India is among the 32 countries that have yet to criminalise marital rape. Exception 2 to Section 375 of the Indian Penal Code 1860 exempts sexual intercourse or sexual acts by a husband with his wife, provided the wife is not under fifteen years of age, from being considered rape. This exception is seen as a violation of women's rights to personal liberty, dignity, and equality. The right to life under Article 21 of the Indian Constitution extends beyond mere survival and includes the right to live with dignity.

There has been a prevailing assumption that in a marital relationship, there is implied, absolute, and irrevocable consent from the wife to engage in sexual activity. As a result, victims of spousal rape in India had to either seek their husband's consent or approach the courts to obtain an order for pregnancy termination. With the growing need for reform in Indian criminal laws to recognise marital rape as an offence, the Supreme Court's judgment in the current case has kindled hope for the criminalisation of this act. The court, while not criminalising marital rape itself, has deferred the decision to the legislature.

However, the court has categorised marital rape as a form of 'rape' for the purposes of the Medical Termination of Pregnancy (MTP) Act, especially under Rule 3B(a) of the MTP Rules. This categorisation allows victims of marital rape to terminate pregnancies of up to 24 weeks. The judgment is being celebrated for its progressive stance and is considered historic. It is particularly noteworthy at a time when the United States, a developed and highly progressive country, has recently rolled back abortion rights by overturning the 50-year-old Roe v. Wade decision, which legalised women's right to abortion and ensured it as a constitutional right.

Another aspect of the judgment worth appreciating is its recognition of the right of unmarried women to terminate pregnancies resulting from consensual relationships. The Court has interpreted Rule 3B of the MTP Rules (which outlines categories of women eligible for abortion between 20-24 weeks) as inclusive of unmarried women whose pregnancies arise from consensual relationships. Such unmarried women are deemed eligible for pregnancy termination under the category of women experiencing a change in their marital status during an ongoing pregnancy.

In conclusion, this judgment represents a significant milestone in recognising women's rights related to their bodily and reproductive autonomy.

  • X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi & Anr [2022] INSC 740, [2022] SCC OnLine SC 1321.

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