Punjab-Haryana High Court
Aarti Arora vs Fortis Hospital Mohali And Others on 13 January, 2025
Neutral Citation No:=2025:PHHC:003140
CWP-75-2025
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
118 CWP-75-2025
Date of Decision : January 13, 2025
AARTI ARORA
-PETITIONER
V/S
FORTIS HOSPITAL MOHALI AND OTHERS
-RESPONDENTS
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Ketan Chopra, Advocate
for the petitioner.
Mr. Pardeep Bajaj, D.A.G., Punjab.
***
KULDEEP TIWARI, J. (ORAL)
1. Through the instant writ petition cast under Article 226 of the
Constitution of India, the petitioner, a tricenarian married woman, craves for
issuance of directions upon the official respondents to terminate her
pregnancy, without her husband’s consent. The petitioner claims her
pregnancy to be medically terminable on account of her pregnancy length
not exceeding the period prescribed for termination in The Medical
Termination of Pregnancy Act, 1971 (hereinafter referred to as the ‘Act of
1971’).
GROUNDS CANVASSED IN THE WRIT PETITION FOR
SECURING THE RELIEF OF PREGNANCY TERMINATION
2. The marriage of the petitioner was solemnized with one Lovish
Batra on 22.08.2024, however, immediately thereafter, she was subjected to
cruelty by her in-laws family on account of bringing less dowry. Moreover,
the husband of the petitioner also maltreated her and he even brought a
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portable camera twice in their bedroom to secretly record their personal
moments. Not only this, the business of the petitioner’s husband also closed
down and he became dependent on the petitioner and her parents for day to
day needs and expenditure.
3. Despite all the atrocities, the petitioner went on performing her
matrimonial obligations and after approx. 1½ months of her marriage, the
petitioner came to know about her pregnancy, whereupon, she informed
about it to her husband and also informed him that their marital life has just
begun and their financial condition is also not stable, therefore, she is not
mentally prepared for the baby. However, in order to restrain the petitioner
from aborting pregnancy by taking contraceptive measures within the
requisite period, the husband of the petitioner orchestrated the scenario of
love and affection towards her. However, the atrocities upon the petitioner
did not pause and she was manhandled by her in-laws family, which
resulted in hers suffering minor pain and mental trauma. Consequently, the
petitioner had to depart from the company of her husband and had to come
to her parents house. The petitioner also made a police complaint about the
atrocities committed upon her. Moreover, owing to the atrocities (supra), the
petitioner started bleeding on 03.12.2024, whereupon, she was taken to
Iqbal Nursing Home by her parents. However owing to lack of proper
treatment, the petitioner’s parents also took her to DMC Hospital, Ludhiana,
where she remained admitted from 03.12.2024 to 06.12.2024. In the medical
summary report (Annexure P-3) prepared at the time of petitioner’s
discharge from hospital, it was specifically observed that the petitioner is
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under stress and a victim of domestic violence.
4. Citing the hereinabove extracted facts and circumstances,
especially her soured matrimonial relationship and her decision to walk out
of her marriage, the petitioner claims that she does not want to continue with
her unwanted pregnancy as it would cause grave injury to her physical and
mental health, therefore, permission be granted to medically terminate her
unwanted pregnancy.
PROCEEDINGS BEFORE THIS COURT AND REPORT OF THE
BOARD OF DOCTORS
5. This Court had passed the hereinafter extracted order on
08.01.2025 upon the instant writ petition.
“On the oral request of the learned counsel for the petitioner,
the State of Punjab, through the Department of Health and Family
Welfare, is impleaded as a necessary party to the instant petition.
The petitioner, who is stated to be in the 19th week of her
pregnancy, has approached this Court, seeking permission to
terminate her pregnancy, without the consent of her husband.
Notice of motion.
Mr. Sahil R. Bakshi, AAG, Punjab, waives service for State of
Punjab, and accepts notice. He seeks some time to file response to
the instant petition.
Notice be issued to respondents No.4 to 6 only, at this stage,
for 13.01.2025.
In the meanwhile, the petitioner is directed to appear before
the Chief Medical Officer, Civil Hospital, Ludhiana, on 09.01.2025
itself, and thereupon, the Chief Medical Officer concerned, shall
constitute a Board of Doctors, as per the provisions of the Medical
Termination of Pregnancy Act, 1971, to find out the age of the
foetus, as well as the health condition of mother and the foetus, and
thereupon, shall submit a status report in this regard, positively on3 of 19
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or before 13.01.2025, since the issue relates to the termination of
pregnancy, where the time is the essence, and therefore, this Court
presuppose that there should not be any kind of delay on the part of
the doctors concerned, in making compliance of the directions
(supra).
To be shown in the urgent list.”
6. In deference to the directions enclosed in the hereinabove
extracted order, today the learned State counsel has furnished before this
Court the photocopy of the report submitted by the Board of Doctors, as
constituted under the Act of 1971. This report is taken on record as Mark
‘A’.
7. A perusal of the report (Mark ‘A’) reveals that the age of the
foetus was 18 weeks and 03 days as on 11.01.2025, and, the Board of
Doctors has opined that the pregnancy can be terminated before 20 weeks.
Moreover, the report also voices that no psychopathology was found in the
petitioner. The relevant portion of the report is reproduced hereunder:-
“As per board of doctors Dr. Surbhi Singhal (Medical
Officer), Dr. Anupriya Bajaj (Medical Officer) and Dr. Lakhwinder
Kaur (Medical Officer) was constituted by Dr. Deepika Goyal
(Senior Medical Officer, I/c MCH, Civil Hospital, Ludhiana) on 09-
01-25 for the opinion of Medical Termination of Pregnancy of Aarti
Arora, 32 years female. (CWP No.75 of 2025).
Her LMP: 04-09-2024, EDOD: 11-06-2025
USG (09-01-25) (SAN/10/CH/LDH/25)- Single Live Intra Uterine
pregnancy of average Gestational age 18 weeks, 3 days.
Her Psychological assessment was taken from DMC (MRD
No.1857712 date: 11-01-25)
On analysis of Rorschach test- No Psychopathology was found.
According to the MTP Guidelines Act 1971 and amendment Act
2021, board of doctors is of the opinion that pregnancy can be4 of 19
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terminated before 20 weeks.”
8. Before this Court proceeds to gauge the merits/demerits of the
instant writ petition and consequently evince any opinion thereon, it is
deemed apt to initially capture a glimpse of some significant legal
provisions and judicial precedents germane to the disposal of the instant writ
petition.
ANALYSIS OF SIGNIFICANT LEGAL PROVISIONS AND
JUDICIAL PRECEDENTS GERMANE TO THE DISPOSAL OF THE
INSTANT WRIT PETITION.
9. The first provision, which is of utmost significance and which
is reproduced hereinafter, is enclosed in Section 3 of the Act of 1971
inasmuch as there becomes prescribed the manner in which registered
medical practitioners may terminate pregnancies.
“3. When pregnancies may be terminated by registered medical
practitioners.–(1) Notwithstanding anything contained in the
Indian Penal Code (45 of 1860), a registered medical practitioner
shall not be guilty of any offence under that Code or under any
other law for the time being in force, if any pregnancy is terminated
by him in accordance with the provisions of this Act.
[(2) Subject to the provisions of sub-section (4), a pregnancy may be
terminated by a registered medical practitioner,–
(a) where the length of the pregnancy does not exceed twenty weeks,
if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does
not exceed twenty-four weeks in case of such category of woman as
may be prescribed by rules made under this Act, if not less than two
registered medical practitioners are,
of the opinion, formed in good faith, that–
(i) the continuance of the pregnancy would involve a risk to the life
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health; or
(ii) there is a substantial risk that if the child were born, it would
suffer from any serious physical or mental abnormality.
Explanation 1.–For the purposes of clause (a), where any
pregnancy 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 anguish caused by such
pregnancy may be presumed to constitute a grave injury to the
mental health of the pregnant woman.
Explanation 2.–For the purposes of clauses (a) and (b), where any
pregnancy is alleged by the pregnant woman to have been caused by
rape, the anguish caused by the pregnancy shall be presumed to
constitute a grave injury to the mental health of the pregnant
woman.
(2A) The norms for the registered medical practitioner whose
opinion is required for termination of pregnancy at different
gestational age shall be such as may be prescribed by rules made
under this Act.
(2B) The provisions of sub-section (2) relating to the length of the
pregnancy shall not apply to the termination of pregnancy by the
medical practitioner where such termination is necessitated by the
diagnosis of any of the substantial foetal abnormalities diagnosed
by a Medical Board.
(2C) Every State Government or Union territory, as the case may
be, shall, by notification in the Official Gazette, constitute a Board
to be called a Medical Board for the purposes of this Act to exercise
such powers and functions as may be prescribed by rules made
under this Act.
(2D) The Medical Board shall consist of the following, namely:–
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the Official
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be.]
(3) In determining whether the continuance of a pregnancy would
involve such risk of injury to the health as is mentioned in sub-
section (2), account may be taken of the pregnant woman’s actual or
reasonably foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of
eighteen years, or, who having attained the age of eighteen years, is
a [mentally ill person], shall be terminated except with the consent
in writing of her guardian.]
(b) Save as otherwise provided in clause (a), no pregnancy shall be
terminated except with the consent of the pregnant woman.”
10. Another important provision is encapsulated in Rule 3(B) of
The Medical Termination of Pregnancy Rules, 2003 (hereinafter referred to
the as ‘Rules of 2003’). This Rule prescribes the categories of women, who
shall be considered eligible for termination of pregnancy for a period of upto
twenty-four weeks. Rule 3(B) is reproduced hereunder:-
“3B. Women eligible for termination of pregnancy up to twenty-
four weeks.–The following categories of women shall be
considered eligible for termination of pregnancy under clause (b) of
sub-section (2) Section 3 of the Act, for a period of up to twenty-four
weeks, namely:–
(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
incompatible 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
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emergency situations as may be declared by the Government.”
11. Taking into account the petitioner’s claimed change of marital
status, coupled with the length of her pregnancy, which evidently does not
exceeded twenty weeks, therefore, the provisions concerning the case at
hand are the ones embodied in clause (b) of sub-section (2) Section 3 of the
Act of 1971 and clause (c) of Rule 3(B) of the Rules of 2003.
12. Now, the issue arising for consideration before this Court is
“whether in the given facts and circumstances, where although the
petitioner has departed from the company of her husband on account of
domestic violence but not legally divorced, yet she is eligible for termination
of pregnancy without consent of her husband on the basis of change of
marital status?”.
13. The Hon’ble Supreme Court has, while passing the interim
order dated 21.07.2022, in case titled as “X Vs. Principal Secretary, Health
and Family Welfare Department and Anr.“, 2022(4) RCR(Criminal) 37,
held that the expression “change of marital status” should be given a
purposive rather than a restrictive interpretation. The expressions
“widowhood and divorce” need not be construed to be exhaustive of the
category which precedes it.
14. The Hon’ble Supreme Court has also observed that the
Parliament, by amending the Act of 1971 through Act 8 of 2021, intended to
include unmarried women and single women within the ambit of the Act.
The relevant paragraphs of the interim order (supra) are reproduced
hereunder:-
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“14. Prima facie, quite apart from the issue of constitutionality
which has been addressed before the High Court, it appears that the
High Court has taken an unduly restrictive view of the provisions of
clause (c) of Rule 3B. Clause (c) speaks of a change of marital
status during an ongoing pregnancy and is followed in parenthesis
by the words “widowhood and divorce”. The expression “change of
marital status” should be given a purposive rather than a restrictive
interpretation. The expressions “widowhood and divorce” need not
be construed to be exhaustive of the category which precedes it.
15. The fundamental principle of statutory interpretation is that the
words of a statute must be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of
the Act and the intent of the legislature. Parliament by amending the
MTP Act through Act 8 of 2021 intended to include unmarried
women and single women within the ambit of the Act. This is evident
from the replacement of the word ‘husband’ with ‘partner’ in
Explanation I of Section 3(2) of the Act.”
15. Furthermore, at the time of delivering the final verdict dated
29.09.2022 in the case (supra) bearing Civil Appeal No.5802 of 2022, the
Hon’ble Supreme Court considered at length the question “whether Rule 3B
includes unmarried women, single women, or, women without a partner
under its ambit”, and, while rendering an answer thereto, also referred to the
aims and objects of the Act of 1971. The relevant paragraphs of this verdict
are reproduced hereinafter:-
“51. In this background, the Medical Termination of Pregnancy Bill
was drafted and introduced in the Rajya Sabha on 17 November
1969. On 2 August 1971, the MTP Bill was introduced in the Lok
Sabha with the intent to “liberalise some of the restrictions under
Section 312 of the IPC.” The MTP Act was enacted by Parliament
as a “health” measure, “humanitarian” measure and “eugenic”
measure. The relevant portion of the Statement of Objects and
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Reasons of the MTP Act is extracted below:
“1. The provisions regarding the termination of pregnancy in
the Penal Code, 1860 which were enacted about a century
ago were drawn up in keeping with the then British Law on
the subject. Abortion was made a crime for which the mother
as well as the abortionist could be punished except where it
had to be induced in order to save the life of the mother. It
has been stated that this very strict law has been observed in
the breach in a very large number of cases all over the
country. Furthermore, most of these mothers are married
women, and are under no particular necessity to conceal
their pregnancy.
2. In recent years, when health services have expanded and
hospitals are availed of to the fullest extent by all classes of
society, doctors have often been confronted with gravely ill
or dying pregnant women whose pregnant uterus have been
tampered with a view to causing an abortion and
consequently suffered very severely.
3. There is thus avoidable wastage of the mother’s health,
strength and, sometimes, life. The proposed measure which
seeks to liberalise certain existing provisions relating to
termination of pregnancy has been conceived (1) as a health
measure–when there is 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 whole tenor of the MTP Act is to provide access to safe and
legal medical abortions to women. The MTP Act is primarily a
beneficial legislation, meant to enable women to access services of
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 a purposive construction. The
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interpretation accorded to the provisions of the MTP Act and the
MTP Rules must be in consonance with the legislative purpose.
52. The MTP Amendment Act 2021 intended to extend the benefits
of the statute to all women, including single and unmarried
women. The MTP Amendment Act 2021, which came into force
from 24 September 2021, introduced a major change in Section 3
of the MTP Act by extending the upper limit for permissible
termination of pregnancy from twenty weeks to twenty-four weeks.
In terms of the unamended MTP Act, a pregnancy could only be
terminated under Section 3(2) if it did not exceed twenty weeks.
The MTP Amendment Act 2021 extended the upper limit and
allowed termination of pregnancy up to twenty-four weeks for
specific categories of women based on the opinion of two RMPs.
53. The MTP Amendment Act 2021 also extended the benefit of
the legal presumption of a grave injury to the mental health of a
woman on account of the failure of contraception, to all women
and not just married women. In the unamended MTP Act,
Explanation II provided that the anguish caused by a 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. After the MTP Amendment
Act 2021, Explanation I provides that the anguish caused by a
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. By eliminating the word “married woman or her
husband” from the scheme of the MTP Act, the legislature
intended to clarify the scope of Section 3 and bring pregnancies
which occur outside the institution of marriage within the
protective umbrella of the law.
54. The Statement of Objects and Reasons of the Amendment Act
locates the purpose within the framework of reproductive rights:
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“With the passage of time and advancement of medical
technology for safe abortion, there is a scope for
increasing upper gestational limit for terminating
pregnancies especially for vulnerable women and for
pregnancies with substantial foetal anomalies detected late
in pregnancy. Further, there is also a need for increasing
access of women to legal and safe abortion service in
order to reduce maternal mortality and morbidity caused
by unsafe abortion and its complications. Considering the
need and demand for increased gestational limit under
certain specified conditions and to ensure safety and well-
being of women, it is proposed to amend the said Act. The
proposed Bill is a step towards safety and well-being of
women and will enlarge the ambit and access of women to
safe and legal abortion without compromising on safety
and quality of care. The proposal will also ensure dignity,
autonomy, confidentiality and justice for women who need
to terminate pregnancy.” (emphasis supplied)
55. The Statement of Objects and Reasons indicates that the MTP
Amendment Act 2021 is primarily concerned with increasing
access to safe and legal abortions to reduce maternal mortality
and morbidity. The increase in the upper gestational limit for
terminating pregnancies under “certain specified conditions”
was considered necessary to fulfil the goal of ensuring “dignity,
autonomy, confidentiality and justice for women who need to
terminate pregnancy.” (EMPHASIS SUPPLIED)
56. The unamended MTP Act of 1971 was largely concerned with
“married women”, as evident from paragraph 1 of its Statement
of Objects and Reasons, which stated that most of the women
seeking abortions were married, and thus “under no particular
necessity to conceal their pregnancy.” Significantly, the 2021
Statement of Objects and Reasons does not make a distinction
between married and unmarried women. Rather, all women are
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entitled to the benefit of safe and legal abortions. (EMPHASIS
SUPPLIED)”
16. Moreover, the Hon’ble Supreme Court also held that, the
words “widowhood and divorce”, which are mentioned in brackets at the
tail end of Rule 3B(c) does not hinder interpretation of the rule because
they are illustrative. The change in material circumstances when a woman
is abandoned by her family or her partner was also recognized by the
Hon’ble Supreme Court. Relevant paragraphs of the verdict (supra) in this
regard are reproduced hereunder:-
“89. Rule 3B(c) states that a “change in the marital status during
the ongoing pregnancy (widowhood and divorce)” renders
women eligible for termination of their pregnancy under Section
3(2)(b). The impact of the continuance of an unwanted pregnancy
on a woman’s physical or mental health should take into
consideration various social, economic, and cultural factors
operating in her actual or reasonably foreseeable environment, as
provided in Section 3(3). The rationale behind Rule 3B(c) is
comparable to the rationale for Rule 3B(g) i.e., a change in a
woman’s material circumstances during the ongoing pregnancy.
90. Rule 3B(c) is based on the broad recognition of the fact that a
change in the marital status of a woman often leads to a change
in her material circumstances. A change in material circumstance
during the ongoing pregnancy may arise when a married woman
divorces her husband or when he dies, as recognized by the
examples provided in parenthesis in Rule 3B(c). The fact that
widowhood and divorce are mentioned in brackets at the tail end
of Rule 3B(c) does not hinder our interpretation of the rule
because they are illustrative.
91. A change in material circumstance may also result when a
woman is abandoned by her family or her partner. When a
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woman separates from or divorces her partner, it may be that she
is in a different (and possibly less advantageous) position
financially. She may no longer have the financial resources to
raise a child. This is of special concern to women who have opted
to be a homemaker thereby forgoing an income of their own.
Moreover, a woman in this situation may not be prepared to raise
a child as a single parent or by coparenting with her former
partner. Similar consequences may follow when a woman’s
partner dies.
93. 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 the intention 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.”
17. Moreover, in “K.S. Puttaswamy Vs. Union of India“, (2017)
10 SCC 1, a nine Judge Bench of the Hon’ble Supreme Court has held
that the right to privacy enables individuals to retain and exercise
autonomy over the body and mind. This issue came to be considered in
“X Vs. Principal Secretary, Health and Family Welfare Department and
Anr.” (supra) also, whereupon, it has been held as under:-
“100. In K S Puttaswamy v. Union of India, a nine-judge bench
of this Court recognized the right to privacy as a constitutionally
protected right under Article 21 of the Constitution. In14 of 19
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Puttaswamy (supra), this Court held that the right to privacy
enables individuals to retain and exercise autonomy over the body
and mind. The autonomy of the individual was defined as “the
ability to make decision on vital matters of concern to life.” The
judgement delivered on behalf of four judges described the right
to privacy in the following terms:
“297. … Privacy postulates the reservation of a private
space for the individual, described as the right to be let
alone. The concept is founded on the autonomy of the
individual. The ability of an individual to make choices lies
at the core of the human personality. The notion of privacy
enables the individual to assert and control the human
element which is inseparable from the personality of the
individual. The inviolable nature of the human personality
is manifested in the ability to make decisions on matters
intimate to human life. The autonomy of the individual is
associated over matters which can be kept private. These
are concerns over which there is a legitimate expectation
of privacy. The body and the mind are inseparable
elements of the human personality. The integrity of the
body and the sanctity of the mind can exist on the
foundation that each individual possesses an inalienable
ability and right to preserve a private space in which the
human personality can develop. Without the ability to
make choices, the inviolability of the personality would be
in doubt.” (emphasis supplied)
101. Importantly, Puttaswamy (supra) also deals with facets of
reproductive autonomy. Chelameshwar, J. 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.”93 This Court
recognized the right to bodily integrity as an important facet of
the right to privacy. Puttaswamy (supra) considered Suchita
Srivastava v. Chandigarh Administration to reiterate that the
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under the MTP Act is relatable to the constitutional right to make
reproductive choices under Article 21 of the Constitution.
102. In Suchita Srivastava (supra) this Court explicitly
recognized the concept of reproductive autonomy. In this case, the
victim, an orphaned woman of around 19 years, with mental
retardation, became pregnant as a result of a rape that took place
while she was an inmate at a government-run welfare institution.
After the discovery of her pregnancy, the Chandigarh
Administration approached the High Court of Punjab and
Haryana seeking approval for the termination of her pregnancy.
The High Court constituted an expert body to conduct an enquiry
into the facts. The expert body recorded that the victim had
expressed her willingness to bear the child and accordingly
recommended the continuation of the pregnancy. However, the
High Court directed the termination of the pregnancy on the
ground that the victim was mentally incapable of making an
informed decision on her own.
103. A three-judge Bench of this Court disagreed with the High
Court’s decision. In a judgment authored by K G Balakrishnan,
C.J., this Court emphasized that the consent of the pregnant
woman is an essential requirement to proceed with the
termination of a pregnancy under the MTP Act. It was held that
the state administration cannot claim guardianship of the woman
as she was a major. It was further held that the woman only had
“mild mental retardation” and was therefore competent to give
her consent in terms of Section 3(4)(a) of the MTP Act. This
Court concluded that the state must respect the reproductive
rights of women with “mental retardation” with regard to
decisions about terminating their pregnancy. In the process, this
Court recognized that a woman’s right to reproductive autonomy
is a dimension of Article 21 of the Constitution:
“22. There is no doubt that a woman’s right to make
reproductive choices is also a dimension of “personal
liberty” as understood under Article 21 of the16 of 19
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Constitution of India. It is important to recognize that
reproductive choices can be exercised to procreate as well
as to abstain from procreating. The crucial consideration
is that a woman’s right to privacy, dignity and bodily
integrity should be respected. This means that there should
be no restriction whatsoever on the exercise of
reproductive choices such as a woman’s right to refuse
participation in sexual activity or alternatively the
insistence on use of contraceptive methods. Furthermore,
women are also free to choose birth control methods such
as undergoing sterilisation procedures. Taken to their
logical conclusion, reproductive rights include a woman’s
entitlement to carry a pregnancy to its full term, to give
birth and to subsequently raise children. However, in the
case of pregnant women there is also a “compelling State
interest” in protecting the life of the prospective child.
Therefore, the termination of a pregnancy is only permitted
when the conditions specified in the applicable statute
have been fulfilled. Hence, the provisions of the MTP Act,
1971 can also be viewed as reasonable restrictions that
have been placed on the exercise of reproductive choices.”
104. Suchita Srivastava (supra) rightly recognised that the right
of women to make reproductive choices is a dimension of
personal liberty under Article 21. It held that reproductive rights
include a woman’s entitlement to carry the pregnancy to full term,
give birth, and raise children. More importantly, it also
recognised that the right to reproductive choice also includes the
right not to procreate. In doing so, it situated the reproductive
rights of women within the core of constitutional rights.
105. Decisional autonomy is an integral part of the right to
privacy. Decisional autonomy is the ability to make decisions in
respect of intimate relations. In Puttaswamy (supra) this Court
held that personal aspects of life such as family, marriage,
procreation, and sexual orientation are all intrinsic to the dignity
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of the individual. The right to privacy safeguards and respects
the decisional autonomy of the individual to exercise intimate
personal choices and control over the vital aspects of their body
and life. In Common Cause v. Union of India, this Court
observed that right to privacy protects decisional autonomy in
matters related to bodily integrity:
“441. The right to privacy resides in the right to liberty
and in the respect of autonomy. The right to privacy
protects autonomy in making decisions related to the
intimate domain of death as well as bodily integrity. Few
moments could be of as much importance as the intimate
and private decisions that we are faced regarding death.
Continuing treatment against the wishes of a patient is not
only a violation of the principle of informed consent, but
also of bodily privacy and bodily integrity that have been
recognised as a facet of privacy by this Court.”
106. The right to decisional autonomy also means that women
may choose the course of their lives. Besides physical
consequences, unwanted pregnancies which women are forced to
carry to term may have cascading effects for the rest of her life by
interrupting her education, her career, or affecting her mental
well- being.”
18. In “Amandeep Kaur Vs. The Postgraduate Institute of
Medical Education and Research, Chandigarh”, CWP-474-2024,
Decided on: 20.01.2024, the Co-ordinate Bench of this Court has held
that “Forced into an unwanted pregnancy, a woman is likely to experience
significant physical and emotional challenges. Dealing with the aftermath
of such a pregnancy, even after childbirth, places an extra burden on the
petitioner, affecting her ability to pursue other opportunities in life, such
as employment and contributing to her family’s income.”
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FINAL ORDER
19. In view of the hereinabove discussed legal propositions,
especially the one rendered in “X Vs. Principal Secretary, Health and
Family Welfare Department and Anr.” (supra), and, Rule 3(B)(c) of the
Rules of 2003, and, giving a purposive interpretation to the expression
“change of marital status”, this Court can safely conclude that although the
petitioner does not fall within the purview of “widow or divorcee”, however,
since she has decided to live separately from the company of her husband
without legally obtaining divorce, hence she is eligible for termination of
pregnancy. Consequently, the issue framed by this Court in paragraph 12 of
this verdict is answered in affirmative.
20. Therefore, the petitioner, who has a pregnancy length of
approx. 18 weeks and 05 days as on today, is eligible for medical
termination of her unwanted pregnancy. Consequently, the instant petition is
allowed. The petitioner is directed to approach the C.M.O. concerned within
three days from today, whereupon, the latter shall, in accordance with the
requisite Act and Rules, take expeditious measures for medically terminating
the pregnancy of the petitioner.
21. A copy of this order be supplied to the learned counsel for the
petitioner and to the learned State counsel, under signatures of Special
Secretary of this Court, for information and compliance.
(KULDEEP TIWARI)
January 13, 2025 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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