Can A Pregnant Woman Who Initiated Divorce Proceedings Seek Medical Termination Of Pregnancy Alleging Change Of Circumstances: Kerala HC To Consider

As per Rule 3 (B) of the Medical Termination of Pregnancy Rules 2003, “change of marital status during the ongoing pregnancy (widowhood and divorce)” would entitle a woman to undergo medical termination of pregnancy up to twenty-four weeks.

The Court was seized with a plea moved by a 25-year-old woman who is 20 weeks pregnant now. She has approached the Court seeking medical termination of pregnancy because she is going through a divorce now. The woman had filed the divorce petition alleging cruelty, marital rape against her husband and stated that she does not wish to continue her pregnancy amid the divorce proceedings.

Justice Devan Ramachandran orally stated that the woman is now facing a prospect of change in marital status and the only problem now was that she has initiated the divorce proceedings. 

Could even a contemplation of change of marital status is a change of marital status under Rule 3(B), enquired the Court orally. 

The Court noted that if it allows the woman to undergo medical termination of pregnancy primarily because divorce proceedings are pending, then would also become a reason for termination of pregnancy. 

“I cannot take a decision on my view; it should be a legal view. She is not divorced by her husband, she is divorcing her husband and I am glad that she is strong enough to do that……Left to myself, my view is drastic, women has complete and hundred per cent autonomy…It is a woman who has to carry the child, she has the complete burden” stated the Court orally.

Regarding laws on medical termination of pregnancy, the Court stated that our law is far better than many other laws in the world because there are countries where there is no autonomy given at all and here we have autonomy up to 24 weeks.

In another turn of events, the counsel appearing for the husband submitted before the Court that, “he is ready to accept the baby and the mother”

The Court retorted orally to this: “why do you say that he is willing to accept? What kind of patriarchal mindset is that? What ready to accept, We don't want you to be ready, this is marriage, it is bonding of human minds….why are you saying I am willing/ready to accept her, those times are gone….Not at least in this Court in any case…..I will not treat you other than as an equal partner. Nothing more, nothing less.”

The Court thus directed the husband to appear before the Court in person to enquire whether he intends to live with his wife and the child or if he was contesting the case only to harass his wife.

“Should I not be concerned about this young lady's life? Is she not going through a difficult divorce proceeding? Do you understand her pressure as a young expecting mother? “enquired the Court orally while stating that divorce is not easy and that the woman being an expecting mother would have to undergo the whole litigation alone.

Earlier, the Court had constituted a medical board to evaluate the woman both physiologically and psychologically. The medical report before the Court stated that the woman would face severe psychiatric scars due to the ongoing divorce proceedings and pregnancy.

Today, the Court appointed Advocate Pooja Menon as amicus curiae to assist the Court.

The matter has been posted for further hearing on Wednesday. 

The plea is moved by Advocate R Leela.

Case title: XXX v Union of India

Case number: PWC 6527/2024