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
Date Of Judgement
- Neutral Citation: 2022/INSC/740
- SCC Citation: 2022 SCC OnLine SC 1321
29th September, 2022
Appellate jurisdiction of the Supreme Court of India
Area Of Law
- Constitutional law
- Statutory law
Dr Dhananjaya Y Chandrachud, J
- 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
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
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").
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
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
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
Submission Of Parties
Submissions by the Appellant: Dr. Amit Mishra, learned counsel appearing on
behalf of the appellant, made the following submissions:
- 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?
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;
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;
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:
Rule Of Law Applied
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;
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;
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;
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.
"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.
Women enjoy the right to bodily integrity and autonomy, as well as reproductive rights. They are entitled to exercise decisional autonomy.
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,
- As a health measure�when there is a danger to the life or risk to
physical or mental health of the woman;
- On humanitarian grounds-such as when pregnancy arises from a sex crime
like rape or intercourse with a lunatic woman, etc.; and
- 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
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
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
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
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,
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
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
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
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  INSC 740,  SCC OnLine SC 1321.