Mrs B vs Union of India WPC 13371/23 16/10/23

HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD [ DELHI HIGH COURT ]

 

Medical Termination of Pregnancy Act Section 3(2)(b) (i) and 3(3) Medical Termination of Pregnancy Rules, 2003 Rule 3B(C) Permission to termination of pregnancy of 22 weeks 4 days Petitioner was being tortured, abused verbally, physically, mentally and emotionally by her husband at her matrimonial home She has not filed any FIR against her husband complaining of physical abuse She has not filed any petition for divorce or judicial separation from her husband – A “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy opinion of a Medical Board would be necessary for consideration as to whether it would be safe for the Petitioner to undergo the procedure for termination of pregnancy by a registered medical practitioner and also to ascertain the conditions of the foetus This Court is inclined to direct All India Institute of Medical Sciences, New Delhi to immediately constitute a Medical Board to consider as to whether it will be safe for the Petitioner herein to undergo the procedure for termination of pregnancy or not and also on the condition of fetus. Let the report of the Medical Board, so constituted, be forwarded to this Court within 48 hours.

Relevant Paras:

95. Women may undergo a sea change in their lives for reasons other than a separation with their partner (Rule 3B(c)), detection of foetal “abnormalities” (Rule 3B(f)), or a disaster or emergency (Rule 3B(g)). They may find themselves in the same position (socially, mentally, financially, or even physically) as the other categories of women
enumerated in Rule 3B but for other reasons. For instance, it is not unheard of for a woman to realise that she is pregnant only after the passage of twenty weeks.88 Other examples are if a woman loses her job and is no longer financially secure, or if domestic violence is perpetrated against her,89 or if she suddenly has dependents to support. Moreover, a woman may suddenly be diagnosed with an acute or chronic or life-threatening disease, which impacts her decision on whether to carry the pregnancy to term. If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women.
96. A recognition of the fact that there may be a change in a woman’s material circumstance animates Rule 3B(c), Rule 3B(g) and Rule 3B(f). However,
Rule 3B does not enumerate all the potential changes that a woman’s material circumstances may undergo. It merely specifies some of the potential changes to a woman’s material circumstances, in sub-rules (c), (f) and (g). From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not theintention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.

97. It is not possible for either the legislature or the
courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in.”
(emphasis supplied)

9. Though, in the present case, the facts are entirely different inasmuch as the Petitioner in the present case is a married lady. Moreover, she has not filed any FIR against her husband complaining of physical abuse. She has not filed any petition for divorce or judicial separation from her husband. She has also not approached any Court under the Domestic Violence Act. However, the ratio of the Apex Court is that it is the prerogative of each women to evaluate her life and arrive at the best course of action in view of the change in material circumstance. The Apex Court was of the opinion that change in material circumstance may result when a woman separates from her partner and she may no longer have the financial resources to raise the child. The Apex Court has included the cases of domestic violence perpetrated on a woman under Rule 3B(c) of the MTP Rules wherein a woman is permitted to terminate her pregnancy up to 24 weeks on the ground of change of marital status during the ongoing pregnancy. The Apex Court has held that the right to reproductive autonomy is closely linked with the right to bodily autonomy. The Apex Court has held that theconsequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated and, therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman. The Apex Court has relied on the observations of made by the Apex Court in K S Puttaswamy v. Union of India, (2017) 10 SCC 1, wherein it was held that a “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.” The Apex Court further held that the right to reproductive choice also includes the right not to procreate and in doing so, it situated the reproductive rights of women within the core of constitutional rights and held that decisional autonomy is an integral part of the right to privacy and decisional autonomy is the ability to make decisions in respect of intimate relations. It was finally held by the Apex Court that the MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy. 10. The opinion of a Medical Board would be necessary for consideration as to whether it would be safe for the Petitioner to undergo the procedure for termination of pregnancy by a registered medical practitioner and also to ascertain the conditions of the foetus.
11. For this purpose, this Court is inclined to direct All India Institute of Medical Sciences, New Delhi to immediately constitute a Medical Board to consider as to whether it will be safe for the Petitioner herein to undergo the procedure for termination of pregnancy or not and also on the condition of fetus. Let the report of the Medical Board, so constituted, be forwarded to this Court within 48 hours from today.

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judgement – 2023-10-18 MRS. B vs THE UNION OF INDIA & ANR

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Mrs B vs Union of India WPC 13371/23 16/10/23 [ PRASAD JJ ] [ DELHI HIGH COURT ]