No Judicial Permission Needed for Unmarried Women Seeking Abortion Upto 24 Weeks: Bombay High Court

The Bombay High Court in ABC v. State of Maharashtra & Anr. reaffirmed that unmarried women are equally entitled to seek medical termination of pregnancy up to 24 weeks without judicial permission. Interpreting the Medical Termination of Pregnancy Act, 1971, as amended in 2021, in light of Articles 14 and 21, the Court held that any exclusion of unmarried women under Rule 3-B of the MTP Rules would be discriminatory and unconstitutional. Relying on the Supreme Court decision in X v. Principal Secretary, Health and Family Welfare Department (2023), the Court emphasised that reproductive autonomy stems from a woman’s dignity and bodily integrity, not from her marital status, marking a progressive shift away from patriarchal assumptions in abortion law.

Background of the Case

The petitioner, a 26-year-old unmarried woman, approached the Bombay High Court seeking permission to terminate her 22-week pregnancy. She contended that the pregnancy was unintended and resulted from contraceptive failure. Being unmarried, she feared severe social stigma and a lack of family support. She challenged Section 3(2)(b) of the MTP Act, 1971 (as amended in 2021) and Rule 3-B of the MTP Rules, 2003, arguing that they excluded unmarried women from the category eligible for termination between 20–24 weeks.

Rule 3-B lists specific categories of women who may seek termination up to 24 weeks: survivors of sexual assault, minors, widows, divorcees, women with disabilities, cases of foetal abnormality, etc. The petitioner argued that the absence of “unmarried women” from this list violated Articles 14 and 21 of the Constitution.

During the proceedings, the Court permitted termination based on a medical board report. The constitutional challenge, however, remained for adjudication.

Legal Framework: MTP Act and the 2021 Amendment

Section 3(2)(b) of the MTP Act, 1971 (as amended in 2021)

This provision allows termination of pregnancy up to 24 weeks for certain categories of women as may be prescribed by rules.

Rule 3-B of the MTP Rules (inserted in 2021)

The Rule enumerated specific categories eligible for termination between 20–24 weeks, including:

• Survivors of sexual assault or rape
• Minors
• Change in marital status (widowhood/divorce)
• Women with disabilities
• Mentally ill women
• Cases of substantial foetal abnormalities
• Pregnancies in humanitarian or disaster situations

Notably, unmarried women experiencing contraceptive failure were not expressly included, which formed the crux of the petitioner’s grievance.

Issues for Determination

1. Whether exclusion of unmarried women from Rule 3-B violates Articles 14 and 21 of the Constitution?
2. Whether the petitioner, being an unmarried woman with a consensual pregnancy, was entitled to terminate pregnancy between 20–24 weeks?
3. What is the correct interpretation of Rule 3-B in light of the object of the MTP Act?

Petitioner’s Contentions

• The petitioner argued that denial of access to abortion solely on the basis of marital status is discriminatory and violates the equality clause under Article 14.
• Compelling an unmarried woman to continue an unwanted pregnancy infringes her right to dignity, privacy, bodily autonomy, and mental health under Article 21.
• The legislative intent behind the 2021 amendment was to expand reproductive rights, and a restrictive reading of Rule 3-B defeats that purpose.
• Social stigma attached to unwed motherhood in India aggravates mental trauma, which must be recognised as a legitimate ground for termination.

Respondents Contentions

The Union of India did not file a detailed affidavit opposing the petition but placed reliance on the Supreme Court judgment in X v. Principal Secretary, Health and Family Welfare Department (2023), wherein the same issue had been conclusively decided. The State authorities submitted that they would abide by the law laid down by the Apex Court.

Supreme Court Precedent Considered

During pendency, the Supreme Court delivered a landmark ruling in X v. Principal Secretary, Health and Family Welfare Department, NCT Delhi (2023) 9 SCC 433. The Supreme Court held:

• Rule 3-B must receive a purposive interpretation consistent with the object of the MTP Act.
• The provision aims to address situations where a woman’s material circumstances change, making pregnancy unwanted.
• Excluding unmarried women is arbitrary and violative of Article 14.
• Reproductive autonomy, dignity, and privacy under Article 21 extend equally to married and unmarried women.
• The phrase “change in marital status” cannot be read to deny rights to women who were never married.

The Supreme Court therefore declared that unmarried women are entitled to termination up to 24 weeks on the same footing as married women.

Findings of the Bombay High Court

1. Issue No Longer Res Integra

The High Court observed that the constitutional question raised by the petitioner stood conclusively answered by the three-judge bench decision of the Supreme Court. Therefore, no separate adjudication on the validity of Rule 3-B was required.

2. Equality and Non-Discrimination

Relying on the Supreme Court, the Bench affirmed that:

• Denial of abortion to unmarried women while permitting married women would create an invidious classification based on patriarchal notions of “permissible sex.”
• Such discrimination has no nexus with the object of protecting women’s health and autonomy.

3. Right to Reproductive Autonomy

The Court reiterated principles from Suchita Srivastava v. Chandigarh Administration (2009) that a woman’s right to make reproductive choices is an integral part of personal liberty. Compelling continuation of pregnancy against her will constitutes cruel and degrading treatment.

4. Binding Nature of Supreme Court Ruling

Invoking Article 144 of the Constitution, the Court held that all authorities implementing the MTP Act are duty-bound to follow the interpretation laid down in X v. Principal Secretary. Women should not be forced to litigate repeatedly for relief already recognised by law.

Directions Issued

While disposing of the petition, the Court:

1. Requested the Public Health Department, Maharashtra, to widely circulate the Supreme Court judgment among all hospitals, medical boards, and implementing authorities.
2. Clarified that unmarried status cannot be a ground to deny termination between 20–24 weeks.
3. Emphasised that medical practitioners must act in aid of the law declared by the Supreme Court. 

Ratio Decidendi

1. Rule 3-B of the MTP Rules must be interpreted purposively to include unmarried and single women.
2. Reproductive choice forms part of Articles 14 and 21, encompassing privacy, dignity, and bodily integrity.
3. Marital status cannot be a determinative criterion for access to abortion.

Conclusion

The Bombay High Court’s affirmation that unmarried women need no judicial permission for abortion up to 24 weeks is a milestone in gender justice. It transforms the MTP regime from a charity-based approach to a rights-based constitutional framework.

Motherhood must be a choice, not a penalty for social non-conformity. By placing autonomy above marital labels, the Court has restored to women what the Constitution always promised: dignity over dogma, rights over stereotypes, and life over stigma.

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