Bombay High Court Expresses Anguish Over Social Stigma Suffered By Women Due To Unwanted Pregnancies Without Any Repercussions For Men

In cases of married women becoming pregnant from a man other than her husband, the biological father does not suffer the pain, and social castigation as is suffered by the mother, the Bombay High Court observed on Monday while disallowing a woman to abort her more than 26 weeks pregnancy.

The woman in the present case had become pregnant after she indulged in a sexual relationship with her friend while her divorce proceedings against her husband were pending.

A division bench of Justices Ajay Gadkari and Neela Gokhale while denying the permission to abort the foetus, as recommended by the medical board, noted that one of the grounds on which the petitioner woman sought to undergo medical termination of her pregnancy was "social stigma."

"We have given our consideration to the grounds on which the Petitioner sought permission. The main reason appears to be fear of social stigma in society coupled with her economical condition. In our view, these grounds are not included in the exceptions where the outer limit of the length of the pregnancy is lifted under the MTP Act," the bench noted.

The bench therefore denied permission to the woman to abort her pregnancy. However, to recognize her wish to terminate her pregnancy for fear of social stigma and considering her economic background as averred by her in the petition, so as to allay her apprehensions, the judges directed that in the event the baby is born alive, the hospital is required to provide the neonatal care as required and if desired by the petitioner the baby be given up for adoption while following the due procedure.

The judges, however, expressed anguish over the manner in which only the women suffer in such cases and not the men.

"Before parting we do want to express our anguish for the difficult circumstances in which women such as the Petitioner find themselves in, especially in the absence of any effective mechanism to ensure that the biological father shares equal pain, responsibility, societal reproach and social castigation, meted out to women in such cases," the judges lamented.

The bench was hearing a plea filed by a woman seeking to terminate her "unwanted" pregnancy which she got from a married friend, while her own divorce proceedings against her now estranged husband, were pending. The woman also cited her economic conditions and the fact that she has recently lost her father and further continuance of this pregnancy would only lead to trauma to her.

During the hearing the advocate representing the woman had argued that his client has the "right to reproductive freedom" and that she cannot be forced to continue with this pregnancy.

The bench, however, relied on the medical board's opinion that recommended against abortion as the foetus as well as the physical and mental health of the woman was fine and that there were no grounds to permit pregnancy which passed beyond the 24-weeks deadline.

The bench said it was conscious of the right of the Petitioner to reproductive freedom, her autonomy over her body and her right of choice.

"However, the Medical Report specifically concludes that the Petitioner is not fit for termination of pregnancy at this stage. The report clearly indicates that all relevant parameters and aspects have been examined and considered by the Board," the bench said.

The conclusion of the Medical Board is clearly based on the medical examination of the Petitioner and the opinion finding the Petitioner not fit for termination of pregnancy at this stage is not based only on the narrow interpretation of the word “mental health” confined to medical terms.

"The findings of the Psychiatrist clearly refer to the state of mind of the Petitioner. The Psychiatrist has not found any symptoms of pervasive sadness of mood, altered behaviour, irritability or suicidal ideations in the Petitioner. The parameters denoted in Column 3 clearly indicates the opinion of the Psychiatrist on the mental well-being of the Petitioner in the state," the bench said noted.

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