“Husband’s consent not required”: Kerala High Court allows woman separated from husband to terminate 21-week pregnancy.

The Court held that the drastic change in matrimonial life of the pregnant woman is equivalent to a ‘change of marital status’ in the context of permitting medical termination of pregnancy between 20 and 24 weeks.

The Kerala High Court on Monday permitted a woman claiming to be separated from her allegedly abusive husband to terminate her 21-week-old pregnancy [Aryamol v Union of India & Ors.].

Single-Judge Justice VG Arun also underscored that a husband’s consent is not necessary under the Medical Termination of Pregnancy Act (MTP Act) for termination of pregnancy.

The Rules framed under the MTP Act state that one of the factors for allowing termination between 20 and 24 weeks gestation is “change of marital status during the ongoing pregnancy (widowhood and divorce)”.

Even though the pregnant woman in the instant wasn’t legally divorced or widowed, the Court noted the woman’s changed equation with her husband, showcased by the fact that she had filed a criminal complaint against him and the fact that the husband did not show any inclination of wanting to continue with her, amounts to a “drastic change in her matrimonial life”.

Taking a leaf out of the Supreme Court’s recent judgment in Principal Secretary, Health and Family Welfare Department & Anr., in which the top court adopted a purposive interpretation of the MTP Act, the Court held that the drastic change in matrimonial life of the pregnant woman is equivalent to a ‘change of marital status.

As held in Suchita Srivastava v Chandigarh Admn, a woman’s right to make reproductive choice is also a dimension of her personal liberty, as understood under Article 21 of the Constitution of India. There can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating.

…..If interpreted and understood in the above manner, the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status.’ The word ‘divorce’ cannot in any manner qualify or restrict that right,” the order stated.

Pertinently, the Court also observed that the Act does not require a woman to obtain her husband’s consent to terminate a pregnancy.

Another crucial factor to be noted is that the Medical Termination of Pregnancy Act does not contain any provision requiring the woman to obtain her husband’s permission for terminating the pregnancy. The reason being that it is the woman who bears the stress and strain of the pregnancy and the delivery,” the Court said in its order.

The Court passed the order on a plea moved by a 21-year-old pregnant woman seeking medical termination of her 21+ weeks pregnancy.

The petitioner had met and married her husband, against the wishes of her family, when she was pursuing her undergraduate studies and he was a bus conductor in the area.

After marriage, however, the petitioner alleged that the husband and his mother treated her poorly with demands of dowry.

She also alleged that her husband questioned paternity of the unborn baby and refused to provide support, either financial or emotional.

When she sought to terminate her pregnancy, the doctors at Family Planning Clinic that she went to, refused the same as there were no legal documents to prove her separation/divorce from her husband.

Subsequently, she filed a police complaint against her husband and a crime was registered for the offence punishable under Section 498A read with Section 34 of Indian Penal Code.

When she went back to the clinic, the doctors once again refused to relent to her request, forcing her to approach the Court.

Advocate Liji J Vadakedom, appearing for the petitioner, contended that, rather than a restrictive interpretation, the provisions of the MTP Act and Rules, call for liberal interpretation, recognising the woman’s reproductive choice to either procreate or to abstain from procreating.

However, Government Pleader submitted that the petitioner being a married woman, there has to be a joint decision by the spouses regarding termination of pregnancy. This being the purpose behind Rule 3B(c), there cannot be any interpretation to the contrary, it was contended.

The Court noted that the the Medical Board constituted at its direction had opined that MTP may be done since continuance of the pregnancy will have a negative impact on the mental health of the petitioner.

Another determining factor noted by the Court was the petitioner’s environment.

From the averments and the arguments, it has come out that the petitioner belongs to the weaker section of society and does not have the financial capacity to bring up the child on her own. The records also reveal that the petitioner’s husband had refused to accompany her to the hospital from the initial stages of her pregnancy. As such, the petitioner is denied emotional support also,” the Court observed.

The question before the Court was whether the prayer for permission to terminate the pregnancy can be allowed, even if the petitioner does not fall within the category of women eligible for termination of pregnancy as per the rules.

A perusal of the rule shows that, women, whose marital status changed during the ongoing pregnancy (widowhood or divorce), are also included. Indisputably, the petitioner’s matrimonial life has completely changed during the pregnancy, the Court observed.

Therefore, it permitted the petitioner to have her pregnancy terminated and issued necessary directions for the same.

Leave a Reply

Your email address will not be published. Required fields are marked *

Related Post

× Whatsapp Chat