Supreme Court: All Women Entitled To Safe & Legal Abortion, Distinction Between Married & Unmarried Women Unconstitutional

 Medical Termination of Pregnancy Act, 1971 - All women are entitled to safe and legal abortions (Para 56) - There is no rationale in excluding unmarried women from the ambit of Rule 3B of MTP Rules which mentions the categories of women who can seek abortion of pregnancy in the term 20-24 weeks. (Para 121)

Medical Termination of Pregnancy Rules, 2003 - Rule 3B (categories of women who can seek abortion of pregnancy of 20-24 weeks) - 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. 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 140 - Purposive interpretation given to Rule 3B to include unmarried women whose pregnancy arise out of consensual relationship. (Para 121)

Medical Termination of Pregnancy Act 1971 - Section 3(2)(b) - Termination of a pregnancy till twenty-four weeks of women if it causes risk of injury to the mental health – unwanted pregnancy can be construed as injury to mental health. (Para 62, 63, 64)

Marital Rape - Rape includes ‘marital rape’ for the purpose of MTP Rules - Rule 3B(a) -Survivors of sexual assault or rape or incest shall be considered eligible for termination of pregnancy up to twenty-four weeks – Supreme Court holds that meaning of rape must be understood as including marital rape, solely for the purposes of the MTP Act – Woman need not seek recourse to formal legal proceedings to prove sexual assault, rape or incest. (Para 70, 75, 76)

Medical Termination of Pregnancy Rules, 2003 - Rule 3B(b) - Rule 3B(b) includes minors within the category of women who may terminate their pregnancy up to twenty-four weeks – the RMP need not disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act. (Para 81)

Medical Termination of Pregnancy Rules, 2003; Rule 3B(c) -Women going through a change of marital status during the ongoing pregnancy shall be considered eligible for termination of pregnancy – distinction between married and single women is not constitutionally sustainable – benefits in law extend equally to both single and married women. (Para 90, 92)

Marital Rape - Exception 2 to Section 375 of IPC - Exception 2 states that sexual intercourse by a man with his wife is not rape, unless she is below 15 years of age – Supreme Court leaves the constitutional validity of marital rape to be decided in appropriate proceedings but states that for the purpose of MTP Act, meaning of rape includes marital rape. (Para 74, 75, 115)

Protection of Children from Sexual Offences Act, 2012; Section 19(1) - When a minor approaches a Registered Medical Practitioner for a medical termination of pregnancy arising out of a consensual sexual activity, an RMP is obliged to provide information to concerned authorities – Supreme Court states that the RMP need not disclose the identity and other personal details of the minor in the information. (Para 79, 80, 81)

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

 Civil Appeal No 5802 of 2022 (Arising out of SLP (C) No 12612 of 2022) 

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

DR. DHANANJAYA Y. CHANDRACHUD; J., A S BOPANNA; J., J.B. PARDIWALA; J. 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: September 29, 2022 

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Whether victim includes child born out of Rape with minor?

Para 2 (d) of the Scheme defines Victim as follows: 
"victim means a person who himself has suffered loss or injury as a result of crime and requires rehabilitation and includes his dependent family members." 
We may add here that this definition of victim should also include the child born out of illegal act of sexual abuse with minor. The new born child is a victim in the sense that she/he is forced to live a life of shame and stigma without his/her fault. She/he is brought in this world destined to suffer because while the father refuses to lend his name to the child, the mother abandons her/him for social reasons. Injury to reputation is a violation of right to live with dignity. The child is the victim of circumstances. She/he definitely suffers injury of being left in this world to fend for himself without any support. She/he requires rehabilitation, therefore, we have termed the child born on 26.10.2015 as a second victim in our discussion. 
ALLAHABAD HIGH COURT
LUCKNOW BENCH
Writ Petition No.8210 (M/B) of 2015. 
"A" through her Father "F" 
Versus 
State Of U.P. Thru Prin. Secy., Med. & Health Ser. & Ors. 

Hon'ble Shabihul Hasnain, J. 
Hon'ble D. K. Upadhyaya, J. 

(Delivered by Shabihul Hasnain, J.) 
Dated:03.11.2015. 
Citation:AIR 2016(NOC)396 ALL

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Guidelines of High court in respect of termination of pregnancy of Rape victim

In view of the foregoing discussion, interim directions are

issued as under:

(i) Principal Secretary, Department of Health & Family

Welfare, Government of Haryana, shall deposit a sum

of `5000/- per month in the account of petitioner No.

1 for food and medical expenses. The deposit shall be

made on or before 7th of each calendar month w.e.f.

01.06.2016 for one year.

(ii) The Chief Medical Officer, Nuh and the Medical

Superintendent of Civil Hospital-cum-SHKM

Government Medical College Malhar shall depute a

senior obstetrician/ gynecologist to examine petitioner

No. 1 from time to time and give proper advice in the

matter of medicine and due medical facilities of

health professionals i.e nurses etc.. This will be in

addition to the help and assistance to be provided to

Petitioner No. 1 by AIIMS, New Delhi.

(iii) The Medical Superintendent of AIIMS shall also

provide the adequate medical help as aforesaid to

victim-petitioner No. 1.

(iv) Whenever Petitioner No. 1 visits for medical checkup

and counselling , the concerned doctors shall deal

with her sympathetically. The counselling shall be

provided to her regularly as per the mental health of

petitioner No. 1 and the requirement for the same in

view of the alleged threat of suicide by her.

(v) The State of Haryana shall also deposit an amount of

Rs.5 lakh in fixed deposit in the name of petitioner

No. 1 as damages and expenses as the officers at the

helm of affairs failed to act with due diligence. This

amount will be in addition to the other claim of

petitioner No. 1 under the provisions of law. The said

amount shall remain in fixed deposit in a scheduled

Bank; however, the interest accruing on it can be paid

to petitioner No.1 only after 31.06.2017, by the

concerned bank, if demanded by petitioner No. 1.

(vi) It is clarified that the amounts awarded by this Court

are in addition to the entitlement as per provisions of

Code of Criminal Procedure.

(vii) This Court has already issued directions in various

cases as Kavita, Vijender and Bashir Khan (supra),

referred in the earlier part of the judgement. It is

emphasized that each of those directions should also

be followed in letter and spirit.

(viii) The Central Government is advised to consider

making amendments to the Medical Termination Of

Pregnancy Act, 1971 and clarify in so many words to

the doctors that they will not be unnecessarily

prosecuted if they act in accordance with the rules in

good faith to save the life of a victim of rape or to

prevent grave injury to her physical and mental

health. Termination of pregnancy in good faith which

results from crime is otherwise permitted under the

provision of MTP Act.

(ix) Seminars for investigating agencies, doctors, lawyers

and judicial officers who have occasion to deal with

such cases should be organized periodically. They

should be sensitized about the urgency and immediate

need of counselling and other medical assistance

required to a rape victim. The respective departments

having control over these agencies should regularly

update its officers/officials about the legal provisions

and settled law on the subject.

(x) The Refresher Courses for the members of the

Superior and Subordinate Judiciary of the States of

Punjab, Haryana and U.T.Chandigarh be held to make

them aware of the provisions of the MTP Act and

urgency in such cases. In order to ensure that if any

case is brought before the gestation period reaches 20

weeks, victim be informed about her choice to seek

termination at the earliest.

(xi) The copy of this judgment be sent to the offices of

Advocate Generals of Punjab and Haryana and the

Standing Counsel for U.T., in order to ensure that if,

and when, any case is brought to Court for passing of

any orders under the MTP Act, the said case can be

determined on the first day itself by sending the

woman to the medical board immediately for quick

action if possible under the provisions of law. The

need for filing of reply should not arise so as to avoid

wasting of precious time available with the pregnant

victim.

(xii) The Registry is directed not to mention the name of

rape victim in the cause list, judgment order, but they

may refer to her name by mentioning the first

alphabet of her name.

(xiii) The Counsel representing the victim of rape are also

requested not to disclose the identity of victim in the

petition in the head-note of petition. They may also

write the first alphabet of name of the victim and may

quote 'name withheld' in particulars.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

 CWP-6733-2016

 Date of Decision: 30.05.2016

R (name withheld) and another

 ... Petitioner(s)

Versus

State of Haryana and others

 ... Respondent(s)

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

 DHALIWAL

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