Source:  Punjab and Haryana High Court  

Why in News? 

The Punjab & Haryana High Court ruled that a woman living separately from her husband without a formal divorce can terminate her pregnancy without her husband's consent under the Medical Termination of Pregnancy Act. 

• Justice Kuldeep Tiwari states a purposive interpretation of "change of marital status," allowing the petitioner to qualify for termination.  
• The court considered her allegations of cruelty, maltreatment, and the potential harm to her mental and physical health, permitting the termination of pregnancy at over 18 weeks. 

What was the Background of XXX v. Fortis Hospital Mohali and Others Case? 

• A married woman in her thirties filed a writ petition under Article 226 of the Constitution of India seeking permission to terminate her pregnancy without her husband's consent. 
• The petitioner's marriage was solemnized on 22nd August 2024, after which she allegedly faced cruelty from her in-laws due to insufficient dowry. 
• Her husband allegedly mistreated her and attempted to secretly record their private moments using a portable camera on two occasions in their bedroom. 
• The husband's business had closed down, making him financially dependent on the petitioner and her parents for daily expenses. 
• Approximately 1.5 months after marriage, the petitioner discovered her pregnancy and expressed to her husband that she wasn't mentally prepared for a baby due to their unstable financial situation. 
• The husband allegedly pretended to show love and affection to prevent her from taking contraceptive measures within the required period for abortion. 
• The petitioner faced physical abuse from her in-laws, leading to minor pain and mental trauma, which ultimately forced her to leave and return to her parents' home. 
• On 3^rd December 2024, the petitioner experienced bleeding and was initially taken to Iqbal Nursing Home, then transferred to DMC Hospital, Ludhiana, where she remained admitted until 6^th December, 2024. 
• The medical summary report from DMC Hospital specifically noted that the petitioner was under stress and was a victim of domestic violence. 

What were the Court’s Observations? 

• The Court observed that as per Section 3 of the Medical Termination of Pregnancy Act, 1971, and Rule 3(B) of the Medical Termination of Pregnancy Rules, 2003, the provisions concerning this case relate to pregnancy termination up to twenty weeks and change in marital status. 
• The Court noted that through the MTP Amendment Act 2021, Parliament intended to include unmarried and single women within the Act's ambit, as evidenced by the replacement of the word 'husband' with 'partner' in Explanation I of Section 3(2). 
• The Court recognized the Supreme Court's position that a change in material circumstances can arise when a woman is abandoned by her family or partner, which may place her in a less advantageous position financially and personally. 
• The Court acknowledged the constitutional right to privacy as established in K.S. Puttaswamy v. Union of India, which enables individuals to retain and exercise autonomy over their body and mind, including reproductive choices. 
• The Court observed that while the petitioner does not fall within the purview of "widow or divorcee," her decision to live separately from her husband without legal divorce still qualifies her for pregnancy termination under a purposive interpretation of "change of marital status." 
• The Court determined that forcing an unwanted pregnancy could result in significant physical and emotional challenges, affecting the woman's ability to pursue life opportunities, as noted in the Amandeep Kaur case (2024). 

What is Medical Termination of Pregnancy? 

• Prior to 1971, termination of pregnancy was illegal in India until the Medical Termination of Pregnancy Act was enacted, which came into force on April 1, 1972. 
• The Act underwent significant amendments in 2020, which became effective in September 2021, extending the maximum gestational age for medical abortion from 20 weeks to 24 weeks. 
• For pregnancies up to 20 weeks, the opinion of a single qualified medical professional is sufficient, while pregnancies between 20-24 weeks require the opinion of two registered medical practitioners. 
• The Act permits termination up to 24 weeks for specific categories including survivors of sexual assault/rape/incest, minors, women whose marital status changes during pregnancy, those with major physical disabilities or mental illness, and women in humanitarian or disaster situations. 
• In cases of fetal abnormalities where pregnancy has exceeded 24 weeks, termination requires approval from a four-member Medical Board established in each state. 
• The 2021 amendments significantly expanded access to safe abortion services while maintaining necessary medical oversight through qualified practitioners and medical boards. 
• The revised law emphasizes protecting vulnerable women by specifically including categories like sexual assault survivors, minors, and those facing changes in marital status during pregnancy. 

What is Section 3 of Medical Termination of Pregnancy?  

• A registered medical practitioner will not be guilty of any offense under IPC or other laws if they terminate a pregnancy in accordance with the Act's provisions. 
• For pregnancies up to 20 weeks, a single registered medical practitioner can perform the termination if they form an opinion in good faith about the required conditions. 
• For pregnancies between 20-24 weeks, at least two registered medical practitioners must form an opinion in good faith, and this applies only to specific categories of women prescribed under the rules. 
• Termination is permitted if continuing the pregnancy would risk the woman's life or cause grave injury to her physical or mental health, or if there's substantial risk of serious physical/mental abnormality in the child. 
• When pregnancy occurs due to contraceptive failure, the mental anguish is legally presumed to constitute grave injury to the woman's mental health. 
• In cases of pregnancy due to rape, the anguish is legally presumed to constitute grave injury to the woman's mental health. 
• The length restrictions don't apply when termination is needed due to substantial fetal abnormalities diagnosed by a Medical Board. 
• Every state/UT must constitute a Medical Board consisting of a Gynecologist, Pediatrician, Radiologist/Sonologist, and other notified members. 
• The woman's actual or foreseeable environment can be considered when determining health risks. 
• For women under 18 or those with mental illness, written guardian consent is required. For all other cases, only the pregnant woman's consent is necessary for termination. 

What are the Landmark Judgments on MTP Act? 

• X v. Principal Secretary case (2022): 
  • The Supreme Court's interpretation that the expression "change of marital status" should be given a purposive rather than restrictive interpretation, and the terms "widowhood and divorce" are not exhaustive of the category.
    
• Suchita Srivastava v. Chandigarh Administration (2009):
  • The Supreme Court held that the right to terminate pregnancy conferred to women under the MTP Act relates to the Constitutional right of women to make reproductive choices under Article 21 of the Constitution of India, 1950.