NEW DELHI: The Supreme Court on Tuesday said it would interpret the Medical Termination of Pregnancy (MTP) Act and the related rules in such a manner that discrimination between married and unmarried women is removed to allow abortion till 24 weeks of pregnancy.
Observing there is a need to "fine-tune" the provisions in the MTP rules, the top court also said it would like to add a category of women who suffer desertion irrespective of marital status to the seven categories of women eligible to seek abortion till 24 weeks of pregnancy.
A bench of Justices DY Chandrachud, JB Pardiwala and AS Bopanna said it is reserving its verdict on the issue of interpretation of the MTP Act and will include "unmarried woman" or "single woman" to allow them the benefit of abortion up to 24 weeks.
The Centre told the top court that discrimination, if any, is not in the Act passed by the Parliament and if the court is willing to intervene, then it should do so in the Medical Termination of Pregnancy(MTP) Rules, 2003.
Additional Solicitor General Aishwarya Bhati, appearing for the Centre and assisting the court on the issue, said there is no discrimination under the MTP (Amendment) Act of 2021 and that categorisation has been provided in the relevant rules under the Act.
She said experts have their own views on these issues and according to them categorisation has been done to avoid the misuse of laws including the Pre-Conception and Pre-Natal Diagnostic Techniques (PC-PNDT) Act due to sex determination of the foetus.
"One thing, we should make it clear that we are going to draft our judgement in such a way that we are not going to dilute the provisions of PC-PNDT Act", the court said.
The court perused exception one of section 3 of the MTP Act which says that a pregnancy may be terminated by a registered medical practitioner when the length of the pregnancy does not exceed 20 weeks and occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy.
The top court said it should not be an exception as mental anguish caused by an unwanted pregnancy is presumed to constitute a grave injury to the health of the pregnant woman, irrespective of her marital status, due to failure of a medical device.
It said women who got unwanted pregnancy due to failure of medical device should be allowed to terminate the pregnancy up to 24 weeks.
"We need to fine tune the provisions in the MTP Rules."
It said that under the Rule 3B of the MTP Rules, seven categories of women are eligible for termination of pregnancy up to 24 weeks.
The bench said the seven categories include survivors of sexual assault or rape or incest, minors, change of marital status during the on going pregnancy (widowhood and divorce), women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 and mentally ill women including mental retardation.
It said the other two categories include 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 women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.
"What we see is that in the category of change of marital status during the on-going pregnancy only widowhood and divorce is considered as valid category but there is no mention of woman, irrespective of her marital status, who suffers abandonment during the pregnancy", the bench said, and added that it would include "desertion" also in the category to include those women, who are left by their partner during the pregnancy period.
It said the legislative intent is clear from the word "partner" used in the amendment Act to include that it could be married or unmarried woman and therefore exclusion of single women does not make any sense.
The top court had on August 5 said it would interpret the MTP Act and the related rules to see if unmarried women could be allowed to abort a 24-week pregnancy on medical advice.
"When there are exceptions provided under the law, then why unmarried women can't be included to terminate 24-weeks pregnancy, if the medical advice so permits," it had observed.
The parliamentary intent appears to be clear as it has replaced "husband" with "partner".
It shows that they have considered unmarried women also in the bracket of those allowed to terminate 24-weeks pregnancy.
On July 21, the top court had expanded the scope of the MTP Act to include unmarried women and allowed a 25-year-old to abort her 24-week pregnancy arising out of a consensual relationship.
"A woman's right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution and she has a sacrosanct right to bodily integrity," it said.
"Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. Live-in relationships have been recognized by this Court."