Supreme Court of India

XversusM/S SHAPOORJI PALLONJI AND COMPANY PVT. LTD. & ORS.

Citation: 2023 INSC 919
Decided: 16 October 2023
Disposal: Disposed off
Bench: D Y CHANDRACHUD

Holding

A medical termination of pregnancy beyond 24 weeks cannot be permitted absent a substantial fetal abnormality or a risk to the woman's life, and the Court therefore allowed the recall of the earlier order and dismissed the petition for termination.

Summary

The petitioner, a 27‑year‑old mother of two, filed a writ petition under Article 32 seeking a medical termination of her pregnancy after discovering she was about 24 weeks pregnant, citing postpartum depression and financial constraints. The Court initially ordered termination, but a doctor from the AIIMS Medical Board later emailed the ASG requesting clarification on whether a foeticide should be performed, prompting the Union of India to apply for a recall of the earlier order. The Court examined the statutory limits under the Medical Termination of Pregnancy (MTP) Act, noting that the pregnancy had progressed to approximately 26 weeks and five days, exceeding the 24‑week ceiling. No substantial fetal abnormality was found, nor was there a medical necessity to save the woman's life as required by Sections 3(2B) or 5 of the MTP Act. Relying on Article 142, the Court held that its extraordinary powers could not be used to direct a foeticide or permit termination in this circumstance. Consequently, the recall application was allowed, the earlier order permitting termination was set aside, and the delivery was ordered to be carried out by AIIMS with costs borne by the Union. The Court also directed that, should the petitioner wish, adoption arrangements would be facilitated by the Government.

Issues considered

The statutory limit for medical termination of pregnancy under the MTP Act and whether the petitioner’s case falls within any exception.
Whether the Court can, under Article 142, override the statutory provisions to permit termination or direct foeticide.
The appropriate procedural route for challenging a Supreme Court order – recall versus review or curative petition.

Legislation cited

Constitution of Indias. Article 141, s. Article 142, s. Article 32
Medical Termination of Pregnancy Act, 1971s. 2A, s. 2B, s. 2C, s. 2D, s. 3, s. 3(2), s. 3(2)(a), s. 3(2B), s. 3(2)(b)(i), s. 4, s. 5
Medical Termination of Pregnancy Rules, 2003 (as amended 2021)s. Rule 3A(a)(i), s. Rule 3B
Rights of Persons with Disabilities Act, 2016

Subjects

Medical termination of pregnancyMTP ActArticle 32Article 142Recall of orderSupreme Court jurisdictionFetal viabilityPostpartum psychosisAdoptionReview petition

Judgment

[2023] 15 S.C.R. 443 : 2023 INSC 919

CASE DETAILS

X
v.
UNION OF INDIA AND ANR.
(Miscellaneous Application No. 2157 of 2023)
In
(Writ Petition (Civil) No. 1137 of 2023)
OCTOBER 16, 2023
[DR DHANANJAYA Y CHANDRACHUD, CJI,
J. B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Petition under Article 32 ﬁled for directions
to the respondents to permit a medical termination of the Petitioner’s ongoing
pregnancy. Relief sought, if can be granted; and the nature of the jurisdiction
under which this Court is adjudicating this case.
Medical Termination of Pregnancy Act, 1971 – ss.3(2B), 5 –
According to the Petitioner, she did not discover that she was pregnant
until after twenty weeks of the pregnancy had elapsed because she
had lactational amenorrhea as a result of which breastfeeding
women do not menstruate – On undergoing an ultrasound scan, the
pregnancy was estimated to be around twenty-four weeks at that
time – Attempts to medically terminate the pregnancy failed – Writ
petition ﬁled – Petitioner was directed to appear before a Medical
Board constituted by the AIIMS, New Delhi – Report submitted –
Petition allowed, medical termination of the pregnancy permitted
by this Court vide order dtd.09.10.2023 – However, a doctor from
AIIMS (who was a member of the Medical Board) emailed Ms. ‘AB’,
ASG, stating that the foetus has a strong chance of survival and
sought directions from this Court as to whether a foeticide should
be carried out – Application for recall of the order dtd.09.10.2023
ﬁled by ASG, heard by the same bench which had heard the petition
earlier – Split verdict – Petition listed before the present three judge
443
444 SUPREME COURT REPORTS [2023] 15 S.C.R.

Bench – A further report called from AIIMS on certain speciﬁc issues
– Report submitted:
Held: Length of the pregnancy has crossed twenty-four weeks – It is
now approximately twenty-six weeks and ﬁve days – A medical termination
of the pregnancy cannot be permitted as having crossed the statutory limit of
twenty-four weeks, the requirements in either of s.3(2B) or s.5 must be met;
there are no “substantial foetal abnormalities” diagnosed by a Medical Board,
in terms of s.3(2B) – A second medical report was called from AIIMS to
ensure that the facts of the case were accurately placed before this Court and
no foetal abnormality was detected; and neither of the two reports submitted
by the Medical Boards indicate that a termination is immediately necessary
to save the life of the Petitioner, in terms of s.5 – Under Article 142, this
Court has the power to do complete justice – However, this power may not
be attracted in every case – If a medical termination were to be conducted
at this stage, the doctors would be faced with a viable foetus – One of the
options before this Court, which the email from AIIMS had ﬂagged, was for
it to direct the doctors to stop the heartbeat – This Court is averse to issuing
a direction of this nature – Petitioner, too, did not wish for this Court to
issue such a direction – In the absence of a direction to stop the heartbeat,
the viable foetus would be faced with a signiﬁcant risk of lifelong physical
and mental disabilities – Prayer for the medical termination of the pregnancy
not acceded to– Application for recall of the order dtd. 09.10.2023 allowed–
Delivery will be conducted by AIIMS at the appropriate time– Union
Government has undertaken to pay all the medical costs for the delivery
and incidental to it– In case, the petitioner is inclined to give the child up
for adoption, the Union Government has stated that they shall ensure that
this process takes place at the earliest, and in a smooth fashion– Medical
Termination of Pregnancy Rules 2003 (as amended in 2021)– Constitution
of India– Article 142. [Paras 24-29]
Practice and Procedure – Final judgment/order – Challenge
to – Union of India ﬁled application for the recall of the order dtd.
09.10.2023 passed by a two-Judge Bench of this Court, whereby the
Petitioner’s writ petition was allowed and medical termination of her
pregnancy was permitted, on the ground that one of the doctors on
the Medical Board emailed the ASG, seeking a clariﬁcation of that
X v. UNION OF INDIA AND ANR. 445

order – Nature of the jurisdiction under which the present case is
being adjudicated:
Held: Once a judgment or order attains ﬁnality, a party seeking to
challenge the decision rendered may do so only by invoking the jurisdiction
of the court to review the judgment or order; preferring an appeal against
the judgment or order (where an appeal lies); or in the case of the Supreme
Court, ﬁling a curative petition – In the present case, the Union of India
ﬁled an application for recall because certain aspects of the situation at
hand were brought to its attention after the petition was disposed of by
the order dtd.09.10.2023 – No doubt, there was no intention to abuse the
process of the law– However, the appropriate procedure which it ought
to have followed would be to ﬁle a Review Petition, accompanied by an
application for urgent listing and an application for hearing in open court,
given the urgency of the matter – The Bench consisting of Kohli and
Nagarathna, JJ agreed to hear the matter – The immense urgency at that
time did not permit this Court to address the reasons for doing so which
are being addressed presently – Under Article 142, this Court has the
power to pass such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it – In the present
case, this Court is justiﬁed in exercising its jurisdiction u/Article 142 as
this is not an ordinary civil case; certain aspects of the case which ought
to have been brought to the attention of this Court came to light after the
order dtd. 09.10.2023 was passed and this was not within the control of
any of the parties to the case but was the result of the actions of a third
party altogether (the Medical Board); and there was immense urgency in
this matter – Constitution of India – Article 142 – Medical Termination
of Pregnancy Act, 1971 – Medical Termination of Pregnancy Rules, 2003
(as amended in 2021). [Paras 19-22]
Medical Termination of Pregnancy Act, 1971 – ss.3(2)(a), (b)
(i); Explanation 1, 2 to s.3(2); s.3(2)(b)(ii) Medical Termination of
Pregnancy Rules, 2003 (as amended in 2021) – r.3B:
Held: The MTP Act is a progressive legislation which regulates the
manner in which pregnancies may be terminated – MTP Act recognizes
the autonomy of the pregnant woman and respects her right to choose the
course of her life – The design of the statute makes it evident that saving
446 SUPREME COURT REPORTS [2023] 15 S.C.R.

the life of the pregnant woman is of paramount importance, notwithstanding
the length of the pregnancy. [Para 15]
Practice and Procedure – Judgment/order – Application for recall,
cannot be entertained except in exceptional circumstances:
Held: The reason for the availability of a limited number of routes
by which a judgment can be challenged is that there must be quietus to a
dispute – Unlimited modes by which judgments or orders can be challenged
would result in chaos, uncertainty, and unpredictability – This is also the
reason why an application for recall of an order or judgment cannot be
entertained by this Court, save and except in exceptional circumstances
such as where a party which is directly aﬀected was not served with notice
of the proceedings – Otherwise, the hearing and disposal of an application
for recall may even have the eﬀect of creating an intra-court appeal, which
is impermissible and wholly unknown to this Court. [Para 19]
Medical Termination of Pregnancy Act, 1971 – ss.3(2), 5 – Length
of the pregnancy – Requirements for termination – Position of law
summarized – Medical Termination of Pregnancy Rules, 2003 (as
amended in 2021) – rr.3B, 3A (a)(i).
LIST OF CITATIONS AND OTHER REFERENCES
Delhi Admn. v. Gurdip Singh Uban (2000) 7 SCC 296 : [2000] 2
Suppl. SCR 496; X v. Principal Secretary, Department of Health and Family
Welfare, GNCTD 2022 SCC OnLine SC 1321; State v. Kalyan Singh (2017)
7 SCC 444: [2017] 6 SCR 946 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
ORIGINAL WRIT JURISDICTION: Miscellaneous Application
No.2157 of 2023 in Writ Petition (Civil) No.1137 of 2023.
From the Judgment and Order dated 09.10.2023 in W.P. (C) No.1137
of 2023 of the Supreme Court of India.
Appearances:
Dr. Amit Mishra, Rahul Sharma, Mrs. Uzma Ashraf, Advs. for the
Petitioner.
X v. UNION OF INDIA AND ANR. 447

Ms. Aishwarya Bhati, ASG, Gurmeet Singh Makker, Ms. Rukhmini
Bobde, Ms. Sthavi Asthana, Abhijeet Singh, Ms. Ameyavikrama Thanvi,
Ms. Poornima Singh, Ms. Manisha Chava, Ms. B.L.N. Shivani, Ms.
Shagun Thakur, Ms. Chitrangda Rastravara, Rustam Singh Chauhan,
Nithin Chowdhary Pavuluri, Ms. Anupriya Srivastava, Ms. Shivika
Mehra, Ketan Paul, Ashwin Joseph, Pratham Sagar, Ms. Anuradha
Arputham, Anirudh Singh, Manvendra Singh, Ms. Shreya Jain, Advs.
for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT

DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents
A. Facts and procedural history ..................................................3
B. The medical termination of pregnancies ..............................10
C. Analysis ..................................................................................15
i. The jurisdiction of this Court to hear this case ..............15
ii. Decision on the prayer ...................................................18

A. Facts and procedural history
1. The Registry is directed to anonymize the name of the petitioner
in this judgment, all orders that have been passed as well as in the records
which are publicly available.
2. The petitioner is a married woman of twenty-seven years. She
and her husband have two children, the younger of which is about one
year old. She ﬁled the petition under Article 32 for directions to the
respondents to permit a medical termination of her ongoing pregnancy.
The petitioner states that she did not discover that she was pregnant
until after twenty weeks of the pregnancy had elapsed because she had
lactational amenorrhea. As a result of lactational amenorrhea, women who
are breastfeeding do not menstruate. She therefore did not realize that
448 SUPREME COURT REPORTS [2023] 15 S.C.R.

the absence of menstruation was indicative of pregnancy. The petitioner
states that she visited the gynaecologist for the ﬁrst time after the delivery
of her second child because she was feeling weak, nauseous, dizzy and
experiencing abdominal discomfort. She underwent an ultrasound scan,
upon which she realized that she was pregnant. The pregnancy was
estimated to be around twenty-four weeks at that time.
3. The petitioner avers that she and her husband attempted to medically
terminate the pregnancy at various hospitals but that they were unable to
because of the Medical Termination of Pregnancy Act 19711 read with the
Medical Termination of Pregnancy Rules 20032 (as amended in 2021). She
therefore approached this Court by invoking its writ jurisdiction. She sought
permission for the medical termination of her pregnancy on the following
grounds:
a. She suﬀers from post-partum depression and her mental condition
does not permit her to raise another child; and
b. Her husband is the only earning member of their family and they
already have two children to care for. Additionally, they have
other family members who depend on them.
4. The matter was listed before a two-Judge Bench comprising Hima
Kohli, J. and B V Nagarathna, J. on 5 October 2023. On the same day, the
Bench directed the petitioner to appear before a Medical Board constituted
by the All India Institute of Medical Sciences, New Delhi. 3 The report
submitted to this Court by the Medical Board is extracted below:
“Details of the woman seeking termination of pregnancy:
1. …
2. Age: 27 years.
3. Registration/Case Number:UHID–107060237.
4. Additional review done at AIIMS:

1 “MTP Act”
2 “MTP Rules”
3 “AIIMS”
X v. UNION OF INDIA AND ANR. 449
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

S.No. Investigations done Key ﬁnding
1 Ultrasound done Ultrasonography suggest: Single
a t A I I M S o n live intra uterine fetus of 25
20.09.2023 weeks 5 days POG. Estimated
Fetal Weight – 886 gm. Placenta
upper segment.
5. Opinion by Medical Board for termination of pregnancy:
(a) Allowed (X)
(b) Denied ( )
Justiﬁcation for the decision:
The case has been reviewed by the medical board. The weight
of the baby by the scan done on 06/10/2023 is 886gm with
gestational age of 25 weeks 5 days.
As per the current status, the baby is viable and has a reasonable
chance of survival.
The chances of post partum psychosis of which the couple is
worried of,are present even at this gestation following delivery.
The mother is a previous 2 LSCS and the chances of complications
due to hysterotomy are there at this gestation.
In such a scenario, the termination of pregnancy may be
reconsidered.
The option of antenatal care and delivery at AIIMS, New Delhi
has been discussed with the couple.
6. Physical fitness of the woman for the termination of
pregnancy:
(a) Yes( )
(b) No( ) ”
By its order dated 9 October 2023, this Court allowed the petition
and permitted the medical termination of the pregnancy on the ground that
continuing with the pregnancy could seriously imperil the mental health of
450 SUPREME COURT REPORTS [2023] 15 S.C.R.

the petitioner. The order was pronounced in Court and the reasons were to
follow later.
5. On 10 October 2023, a doctor from AIIMS (who was a member of
the Medical Board which examined the petitioner) emailed Ms. Aishwarya
Bhati, learned ASG, stating that the foetus has a strong chance of survival
and seeking directions from this Court as to whether the foetal heartbeat
ought to be stopped. The email also stated that if the foetal heartbeat was
not stopped, the baby would be placed in an intensive care unit and that
there was a high possibility of immediate and long-term physical and mental
disability. AIIMS sought a direction from the Court as to whether a foeticide
should be carried out. The email is extracted below:
“…
This is regarding the Supreme Court order dated 9.10.2023, regarding
termination of pregnancy of Ms .... Before proceeding for termination,
we would request the following clariﬁcations from the Hon Supreme
Court: As the baby is currently viable (will show signs of life and
have a strong possibility of survival), we will need a directive from
the Supreme court on whether a feticide (stopping the fetal heart)
can be done before termination. We perform this procedure for a
fetus which has abnormal development, but generally not done in
anormal fetus.
If fetecideis not performed, this Is not a termination, but a preterm
delivery where the baby born will be provided treatment and care. A
baby who Is born preterm and also of such low birth weight will have a
long stay in intensive care unit, with a high possibility of immediate and
long term physical and mental disability which will seriously jeopardise
the quality of life of the child. In such a scenario, a directive needs to
be given as to what is to be done with the baby? If the parents agree
to keep the child this will take amajor physical, mental, emotional and
ﬁnancial toll on the couple.
If it is to go for adoption, the process needs to be spelt out clearly as
to needs to clear that baby who comes into the world will have a better
chance at life if the delivery happens after at least 8 weeks.
X v. UNION OF INDIA AND ANR. 451
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

It Is also to be kept In mind that the consequences of delivery which
have happened in the previous two babies can happen at this time also,
with a delivery now at this time.
We would be obliged if a directive on these is given by the Hon
Supreme Court to ease out the process.
…”
6. Ms. Bhati mentioned the case at 4 pm on 10 October 2023 before
the Bench presided over by the Chief Justice. Ms Bhati informed this
Court that in view of the email extracted above and the ensuing urgency,
she mentioned the matter before Kohli, J (Nagarathna J was presiding over
another Bench) and requested that it be listed. Kohli, J. orally informed Ms.
Bhati that she was functus oﬃcio after passing the order dated 9 October
2023 and that the matter ought to be mentioned before the Chief Justice
of India so that he may exercise his powers on the administrative side and
constitute a bench to hear the matter. As stated above, Ms. Bhati mentioned
the matter before the Bench presided over by the Chief Justice. The ASG
stated that she would move a recall application, before the same bench
which had heard the petition earlier the urgency arising as a result of the fact
that the Court had directed an MTP to be carried out immediately upon the
petitioner reporting to AIIMS. This was the appropriate course on the part
of the ASG to follow since the Judges who had heard the petition (Justices
Kohli and Nagarathna) were not sitting as a Bench thereafter and a special
Bench had to be constituted. This lay within the powers of the Chief Justice
on the administrative side. The Chief Justice constituted the same two-Judge
Benchcomprising of Kohli, J. and Nagarathna, J. to hear the application for
recall of the order dated 9 October 2023 and the case was directed to be
notiﬁed on the next day in the sitting list of 11 October 2023.
7. The two-Judge Bench heard the counsel for the petitioners as well
as the ASG. At this juncture, the petitioner ﬁled an aﬃdavit which stated,
“I have made a wilful and conscious decision to medically terminate my
pregnancy and don’t want to keep the baby even if survives.”
8. The judges were unable to agree when the application moved by
the ASG was heard and delivered a split verdict. In her judgment, Kohli,
J. held that her judicial conscience prevented her from allowing the prayer
452 SUPREME COURT REPORTS [2023] 15 S.C.R.

in view of the email sent to Ms. Bhati. Nagarathna, J., on the other hand,
held that the order dated 9 October 2023 ought not to be overturned for the
following reasons:
a. The interest of the mother, who already had two children and
would deliver a third child within a year of delivering the second,
must be given preference;
b. The socio-economic conditions and the mental state of the
petitioner must be considered by this Court;
c. The decision of the petitioner ought to be respected and must not
be substituted by the decision of this Court; and
d. A foetus is dependent on the mother and cannot be recognized as
a personality apart from that of the mother as its very existence
is owed to the mother.
9. Following the split verdict, the petition was directed to be listed
before the present three judge Bench, in view of the diﬀerence of opinion
between the two judges on the application for recall of the order dated 9
October 2023.On 13 October 2023, this Court passed an order calling for a
further report from AIIMS on certain speciﬁc issues. They were formulated
thus:
“(i) Whether the fetus is suﬀering from any abnormality as provided
by subsection 2(b) of Section 3 of the Act. Though the earlier report
mentions that the fetus is normal, nonetheless, in order to place the
matter beyond doubt, we request a further report to be submitted on
the above aspect;
(ii) Whether the continuance of the pregnancy of the petitioner to full
term would be jeopardised by the drugs which may be prescribed for
thealleged condition from which the petitioner is stated to be suﬀering;
and
(iii) The medical professionals at AIIMS would be at liberty to carry
out their own diagnosis in regard to the alleged medical condition
and to indicate their own independent evaluation of the mental and
physical condition of the petitioner. Upon doing so, we request the
doctors to apprise this Court if the petitioner is found to be suﬀering
X v. UNION OF INDIA AND ANR. 453
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

from post partum psychosis and whether any alternate administration
of medication consistent with the pregnancy would be available so
as to neither jeopardise the well-being of the petitioner or the fetus
in that regard. This exercise shall be carried out during the course
of the day.”
10. The Medical Board constituted by AIIMS comprised of nine
doctors, including in the ﬁelds of obstetrics and gynaecology, paediatrics,
and psychiatry. The conclusions in the report submitted by the Medical
Board to this Court are extracted below:
“1. As assessed by USG and Fetal Echo, the fetus does not have any
structural anomaly at the present time.(Report attached).Here the
board would also like to put on record that all abnormalities cannot
be picked up on USG scans.
2. The continuation of pregnancy to full term while the woman is on
the revised medications (as advised by the psychiatrist on the board)
is not likely to signiﬁcantly increase the risk of adverse outcomes for
the mother and fetus as compared to other pregnant woman.
3. On a psychiatric assessment the board is of the opinion that she
has a past history of postpartum psychosis, currently controlled on
medications. Her medications have been reviewed and revised for
an optimal management. It is felt that with proper care and treatment
under appropriate medical supervision, the mother and baby can be
managed well during pregnancy and postpartum as has been previously
evidenced by her response to medications in case of worsening of
symptoms, she may be admitted and treated.”
11. Hence, the points put to the Medical Board for determination were
answered in the following terms:
a. No abnormality has been detected in the foetus;
b. The continuation of the pregnancy would not be jeopardised by
the medication which the petitioner is currently taking; and
c. The petitioner has a history of postpartum psychosis which is
currently being controlled on medication.
454 SUPREME COURT REPORTS [2023] 15 S.C.R.

A revised medication regime was prescribed for optimal management
of the postpartum psychosis.
12. The issues which arise for the consideration of this Court are:
a. What is the nature of the jurisdiction under which this Court is
adjudicating this case; and
b. Can the relief sought in the writ petition be granted?
B. Medical termination of pregnancies
13. The termination of pregnancies is governed by the MTP Act and
the rules framed under it. The MTP Act is a progressive legislation which
regulates the manner in which pregnancies may be terminated. Section 3
spells out certain conditions which must be satisﬁed before a pregnancy can
be terminated.4 The conditions depend upon the length of the pregnancy.

4 “Section 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[(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 of the pregnant
woman or of grave injury to her physical or mental 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
X v. UNION OF INDIA AND ANR. 455
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Where the length of the pregnancy does not exceed twenty weeks, one
Registered Medical Practitioner5 must be of the opinion, formed in good
faith, that:6
a. The continuance of the pregnancy would involve a risk to the life
of the pregnant woman or of grave injury to her physical or mental
health.7 The anguish caused by a pregnancy which occurs due to
the failure of a contraceptive method is presumed to constitute a
grave injury to the mental health of the woman; 8 or
b. There is a substantial risk that if the child were born, it would
suﬀer from any serious physical or mental abnormality.9
Where any pregnancy is alleged by the pregnant woman to have
been caused by rape, the anguish caused by the pregnancy is presumed

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 Gazette by the State Government or Union territory, as the case
may 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.”
5 “RMP” as deﬁned under Section 2(d) of the MTP Act
6 Section 3(2)(a), MTP Act
7 Section 3(2)(b)(i), MTP Act
8 Explanation 1 to Section 3(2), MTP Act
9 Section 3(2)(b)(ii), MTP Act
456 SUPREME COURT REPORTS [2023] 15 S.C.R.

to constitute a grave injury to the mental health of the woman.10 The
presumption adverted to in (a) above makes it evident that the MTP Act
recognizes the autonomy of the pregnant woman and respects her right to
choose the course of her life.
14. Where the length of the pregnancy exceeds twenty weeks but does
not exceed twenty-four weeks, two RMPs must be of the opinion discussed
in the preceding paragraph.11The categories of women where a pregnancy
beyond 20 weeks and up to 24 weeks may be terminated are permitted to
be prescribed by rules made by the delegate of the legislature. Rule 3B of
the MTP Rules (as amended in 2021) provides grounds for the termination
of a pregnancy up to twenty-four weeks. The termination may be allowed
in the following cases or for the following persons:
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 with a major disability in
terms of the criteria laid down under the Rights of Persons with
Disabilities Act 2016;
e. Mentally ill women including mental retardation;
f. Foetal malformation that has a substantial risk of being
incompatible with life or where in the event of birth, the child
may suﬀer from physical or mental abnormalities and be seriously
handicapped; and
g. Women with pregnancy in humanitarian settings or disaster or
emergency situations as may be declared by the Government.12

10 Explanation 2 to Section 3(2), MTP Act
11 Section 3(2)(b), MTP Act
12 Rule 3B, MTP Rules: 3-B. 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;
X v. UNION OF INDIA AND ANR. 457
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

In X v. Principal Secretary, Department of Health and Family
Welfare, GNCTD,13 this Court held that the beneﬁts of Rule 3B(c)
extend equally to both single and married women and that the beneﬁts
of Rule 3B extend to all women who undergo a change in their material
circumstances.
15. Signiﬁcantly, if in the opinion of an RMP, the termination of a
pregnancy is immediately necessary to save the life of a pregnant woman,
the provisions of Section 3 which relate to the length of the pregnancy and
the opinion of two RMPs shall not apply.14 Section 4 (which concerns the
place at which a pregnancy may be terminated) shall not apply to such cases
as well. The design of the statute makes it evident that saving the life of the
pregnant woman is of paramount importance, notwithstanding the length
of the pregnancy.
16. Further, the provisions of Section 3(2) relating to the length of
the pregnancy shall not apply to the termination of a pregnancy by an
RMP, where such termination is necessitated by the diagnosis of any
of the substantial foetal abnormalities diagnosed by a Medical Board.15
The Medical Board has the power to allow or deny the termination of a
pregnancy the length of which is beyond twenty-four weeks.16 It may do
so only after ensuring that the procedure would be safe for the woman at

(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 emergency situations
as may be declared by the Government.
13 2022 SCC OnLine SC 1321
14 Section 5, MTP Act: 5. Sections 3 and 4 when not to apply.—(1) The provisions of
Section 4, and so much of the provisions of sub-section (2) of Section 3 as relate to
the length of the pregnancy and the opinion of not less than two registered medical
practitioners, shall not apply to the termination of a pregnancy by a registered medical
practitioner in a case where he is of opinion, formed in good faith, that the termination
of such pregnancy is immediately necessary to save the life of the pregnant woman. …
15 Section 3(2B), MTP Act
16 Rule 3A(a)(i), MTP Rules
458 SUPREME COURT REPORTS [2023] 15 S.C.R.

that gestation age and after considering whether the foetal malformation
leads to a substantial risk of the foetus being incompatible with life, or
where the child (if it is born) may suﬀer from such physical or mental
abnormalities as to be seriously handicapped.17 Therefore, the outer
temporal limit within which a pregnancy may be terminated is lifted in
some cases.
17. The position of law can therefore be summarized as follows:
Length of the pregnancy Requirements for termination
Up to twenty weeks Opinion of one RMP in terms of
Section 3(2)
Between twenty and twenty-four weeks Opinion of two RMPs in terms of
Section 3(2) read with Rule 3B.
Beyond twenty-four weeks If the termination is required to save
the life of the pregnant woman, the
opinion of one RMP in terms of
Section 5
If there are substantial foetal
abnormalities, with the approval of
the Medical Board in terms of Section
3(2B) read with Rule 3A(a)(i)

C. Analysis
i. The jurisdiction of this Court to hear this case
18. Having described the factual background, the procedural history,
and the framework of law, we turn to the issues raised in this case. As noticed
in the ﬁrst segment of this judgment, the Union of India ﬁled an application
for the recall of the order dated 9 October 2023 passed by a two-Judge Bench
of this Court on the ground that one of the doctors on the Medical Board
emailed the learned ASG, seeking a clariﬁcation of that order.
19. It is trite law that once a judgment or order attains ﬁnality, a party
seeking to challenge the decision rendered may do so only by taking recourse
to one of the following:

17 Ibid
X v. UNION OF INDIA AND ANR. 459
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

a. Invoking the jurisdiction of the court to review the judgment or
order;
b. Preferring an appeal against the judgment or order (where an
appeal lies); or
c. In the case of the Supreme Court, ﬁling a curative petition;
The reason for the availability of a limited number of routes by which
a judgment can be challenged is that there must be quietus to a dispute.
Unlimited modes by which judgments or orders can be challenged
would result in chaos, uncertainty, and unpredictability. This is also
the reason why an application for recall of an order or judgment
cannot be entertained by this Court, save and except in exceptional
circumstances such as where a party which is directly aﬀected was
not served with notice of the proceedings. Otherwise, the hearing and
disposal of an application for recall may even have the eﬀect of creating
an intra-court appeal, which is impermissible and wholly unknown to
this Court. Indeed, this Court has repeatedly deprecated the practice
of ﬁling applications for recall and noted that they may sometimes be
an abuse of the process of the law.18
20. In the present case, the Union of India ﬁled an application for recall
because certain aspects of the situation at hand were brought to its attention
after the petition was disposed of by the order dated 9 October 2023. We
have no doubt that there was no intention to abuse the process of the law.
However, the appropriate procedure which it ought to have followed would
be to ﬁle a Review Petition, accompanied by an application for urgent listing
and an application for hearing in open court, given the urgency of the matter.
The Bench consisting of Kohli and Nagarathna, JJ agreed to hear the matter.
The immense urgency at that time did not permit this Court to address the
reasons for doing so. The reasons are addressed presently.
21. Under Article 142 of the Constitution, this Court has the power
to pass such decree or make such order as is necessary for doing complete

18 Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296; Order dated 3 September 2020
in M.A. No.1434 of 2020 in Misc. Application Diary No.15272 of 2020 in Suo Moto
Contempt Petition (Criminal) No. 2 of 2019
460 SUPREME COURT REPORTS [2023] 15 S.C.R.

justice in any cause or matter pending before it. In State v. Kalyan
Singh,19 this Court observed that Article 142 permitted it to relax the
application of law depending upon the particular facts and circumstances
of the case:
“22. ... This article gives a very wide power to do complete justice
to the parties before the Court, a power which exists in the Supreme
Court because the judgment delivered by it will ﬁnally end the litigation
between the parties. It is important to notice that Article 142 follows
upon Article 141 of the Constitution, in which it is stated that the law
declared by the Supreme Court shall be binding on all courts within
the territory of India. Thus, every judgment delivered by the Supreme
Court has two components — the law declared which binds courts in
future litigation between persons, and the doing of complete justice
in any cause or matter which is pending before it. It is, in fact, an
Article that turns one of the maxims of equity on its head, namely,
that equity follows the law. By Article 142, as has been held inState
of Punjab [State of Punjab v. Raﬁq Masih, (2014) 8 SCC 883: (2014)
4 SCC (Civ) 657: (2014) 6 SCC (Cri) 154: (2014) 3 SCC (L&S)
134] judgment, equity has been given precedence over law. But it
is not the kind of equity which can disregard mandatory substantive
provisions of law when the court issues directions under Article 142.
While moulding relief, the court can go to the extent of relaxing
the application of law to the parties or exempting altogether the
parties from the rigours of the law in view of the peculiar facts
and circumstances of the case. This being so, it is clear that this
Court has the power, nay, the duty to do complete justice in a case
when found necessary. ...”
(emphasis supplied)
22. In the present case, this Court is justified in exercising its
jurisdiction under Article 142 in view of the following circumstances:
a. This is not an ordinary civil case. Rather, it is one which concerns
the viability of a medical termination of a pregnancy and the

19 (2017) 7 SCC 444
X v. UNION OF INDIA AND ANR. 461
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

course of action to be adopted by the doctors on the basis of the
development of the foetus;
b. Certain aspects of the case which ought to have been brought to
the attention of this Court came to light after the order dated 9
October 2023 had been passed. This was not within the control
of any of the parties to the case but was the result of the actions
of a third party altogether (the Medical Board). However, this
information could have had a bearing on the directions issued
by this Court; and
c. There was immense urgency in this matter.
ii. Decision on the prayer
23. We now turn to the issue of whether the relief sought in the writ
petition can be granted.
24. As noticed above, the length of the pregnancy has crossed twenty-
four weeks. It is now approximately twenty-six weeks and ﬁve days. A
medical termination of the pregnancy cannot be permitted for the following
reasons:
a. Having crossed the statutory limit of twenty-four weeks, the
requirements in either of Section 3(2B) or Section 5 must be met;
b. There are no “substantial foetal abnormalities” diagnosed by a
Medical Board in this case, in terms of Section 3(2B).This Court
called for a second medical report from AIIMS to ensure that the
facts of the case were accurately placed before it and no foetal
abnormality was detected; and
c. Neither of the two reports submitted by the Medical Boards
indicates that a termination is immediately necessary to save the
life of the petitioner, in terms of Section 5.
25. Under Article 142 of the Constitution, this Court has the power
to do complete justice. However, this power may not be attracted in every
case. If a medical termination were to be conducted at this stage, the doctors
would be faced with a viable foetus. One of the options before this Court,
which the email from AIIMS has ﬂagged, is for it to direct the doctors to
462 SUPREME COURT REPORTS [2023] 15 S.C.R.

stop the heartbeat. This Court is averse to issuing a direction of this nature
for the reasons recorded in the preceding paragraph. The petitioner, too, did
not wish for this Court to issue such a direction. This was communicated by
her to the court during the course of the hearing. In the absence of a direction
to stop the heartbeat, the viable foetus would be faced with a signiﬁcant
risk of lifelong physical and mental disabilities. The reports submitted by
the Medical Board speak for themselves.
26. For these reasons, we do not accede to the prayer for the medical
termination of the pregnancy.
27. The delivery will be conducted by AIIMS at the appropriate time.
The Union Government has undertaken to pay all the medical costs for the
delivery and incidental to it.
28. Should the petitioner be inclined to give the child up for adoption,
the Union Government has stated through the submission of the ASG that
they shall ensure that this process takes place at the earliest, and in a smooth
fashion. Needless to say, the decision of whether to give the child up for
adoption is entirely that of the parents.
29. The application for recall of the order dated 9 October 2023 is
allowed. The petition and the application are disposed of in terms of the
directions above.
30. Pending applications (if any) stand disposed of.

Headnotes prepared by: Petition and application disposed of.
Divya Pandey

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