Kerala High Court No provision in MTP Act, 1971 requires woman to obtain her husband’s permission for terminating the pregnancy; Permits petitioner to undergo Medical termination of pregnancy

Kerala High Court

   

Kerala High Court: In a petition filed by a 21-year-old girl, seeking medical termination of her pregnancy, V.G. Arun, J. observed that the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status’ and she cannot be denied permission for terminating her pregnancy, on the premise that she is not legally divorced, and her marital status has therefore not changed. Further, the Medical Termination of Pregnancy (‘MTP’) Act, 1971 does not contain any provision requiring the woman to obtain her husband’s permission for terminating the pregnancy, as the woman bears the stress and strain of the pregnancy and the delivery.

In this case, the petitioner against her family wishes married the respondent. Thereafter, the respondent and his mother started ill- treating her. In the meanwhile, she became pregnant, however, the respondent raised suspicion regarding the paternity of the unborn baby and on that excuse, refused to provide any sort of support, either financial or emotional, to the petitioner. The psychological impact of the cruelty, the ignominy of having to go back to her parents, and the lack of emotional and psychological support made the stress and strain of the pregnancy unbearable. Therefore, the petitioner decided to terminate her pregnancy and she approached the Family Planning Clinic, however, the Doctors at the clinic refused to terminate the pregnancy as there were no legal documents to prove separation/divorce of the petitioner with the respondent. Therefore, she filed a complaint against the respondent and his mother for the offence punishable under Section 498-A r/w 34 of the Penal Code, 1860. Thereafter, she again approached the clinic, but the doctors once again refused to relent to her request, as the pregnancy was of 21 weeks 2 days gestation and there was no indication of fetal anomaly or maternal illness.

The Court observed that the MTP Act, 1971 was introduced with intention to liberalise certain existing provisions relating to termination of pregnancy as health measures, like:

  • Danger to the life or risk to the physical or mental health of the woman.

  • Humanitarian grounds – such as when pregnancy arises from sex crime or rape or intercourse with lunatic woman etc.

  • Eugenic grounds – Substantial risk that the child if born would suffer from deformities and diseases.

Further, as per Section 3(2)(a) of the MTP Act, 1971 pregnancy can be permitted to be terminated by a registered medical practitioner and as per Section 3(2) (b), if the length of pregnancy exceeds 20 weeks, but does not exceed 24 weeks, then Medical termination of pregnancycan be permitted based on the opinion of two registered medical practitioners that, continuance of pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical and mental health or that, if the child were born, it would suffer serious physical or mental abnormality.

The Court observed that in the petitioner’s case, the Medical Board has opined that medical termination of pregnancy may be done since continuance of the pregnancy will have a negative impact on her mental health, further, the petitioner belongs to the weaker section of society and does not have the financial capacity to bring up the child on her own. Even, her husband had refused to accompany her to the hospital from the initial stages of her pregnancy, thus, she is denied emotional support as well.

Thus, the question is whether medical termination of 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.

The Court examined Rule 3B (women eligible for termination of pregnancy up to twenty-four weeks), and observed that women, whose marital status changed during the ongoing pregnancy (widowhood or divorce), are also included. It was also observed that it is to be considered that, despite the drastic changes in petitioner’s matrimonial life, whether she could be denied permission for terminating her pregnancy, on the premise that she is not legally divorced, and her marital status has therefore not changed.

The Court referred to the ruling in Suchita Srivastava v. Chandigarh Admn, (2009) 9 SCC 1, wherein it was held that “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 and there can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating”. Further, it cited the decision in X v. Health & Family Welfare Department, 2022 SCC OnLine SC 905, wherein it was held that “Clause (c) of Rule 3B speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. The expression “change of marital status” should be given a purposive rather than a restrictive interpretation and need not be construed to be exhaustive of the category which precedes it”. Thus, it was observed that the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status’ and the word ‘divorce’ cannot in any manner qualify or restrict that right.

The Court while considering the petitioner’s right to privacy, placed reliance on K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, wherein, right to privacy was held to be a fundamental right and an essential aspect of dignity.

Moreover, the Court observed that MTP Act does not contain any provision requiring the woman to obtain her husband’s permission for terminating the pregnancy, as the woman bears the stress and strain of the pregnancy and the delivery. Thus, the Court permitted the petitioner to terminate her pregnancy and directed the Hospital’s Superintendent to take immediate measures for constituting a medical team for conducting the procedure. Further, it ordered that if the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment, and if the petitioner is not willing to assume the responsibility of the baby, the State must take up the responsibility for the time being and offer requisite medical support and facilities.

[X v. Union of India, 2022 SCC OnLine Ker 4843, decided on 26.09.2022]


Advocates who appeared in this case:

For Petitioner: Advocate Liji.J.Vadakedom

Advocate Rexy Elizabeth Thomas

Advocate Tom E. Jacob

For Respondent: Deputy Solicitor General of India

Advocate Aneesh. K.R.,

Advocate Rooprekha D.Kamath,

Advocate Saurav B.

Advocate Benita Alphonsa,

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