Law Doesn't Require Husband's Consent: Kerala High Court Permits Woman To Terminate Pregnancy During Pending Divorce Proceedings

The Kerala High Court has held that a woman can claim a 'change of circumstances' for seeking medical termination of pregnancy during pending divorce proceedings.

The bench of Justice Devan Ramachandran reasoned that 'marital status' cannot be construed as merely de jure (a legal construction) in the context of the Medical Termination of Pregnancy Act and it has to be seen de facto since there may be situations where a woman, though married, may effectively be without any benefits of marriage.

"The word “marital status” assumes great importance because, if it is to be assumed to be only de jure, then it would defeat the very purpose for which it has been engrafted, which is essentially for the benefit of the young mother to be and the foetus within her...As long as it is the responsibility of the mother to be fully in charge of the foetus growing within her, her wishes and needs have to be given the paramountcy it deserves, and to be treated with the respect it behooves."

Court also pointed that MTP Act places an embargo on termination of pregnancy after 24 weeks but legal processes (like divorce proceedings) take much longer duration than the pregnancy itself. Thus it observed, "...should this Court wait, either hoping that the couple would reconcile, or that the legal proceedings would complete, it would be disastrous to her since, if she is to finally be divorced as she wants, she certainly would be without support and in charge of a child, whom she may not be in a position to support and care for."

Furthermore, the Court emphasized on women's bodily autonomy and stated that a third party affirmation is not required in such matters.

"...while dealing with these matters, the consent of the husband is immaterial and irrelevant...there is no statutory requirement for the woman to obtain any such consent from her partner or husband," the order read.

The development comes in a plea moved by a 25-year-old woman seeking medical termination of pregnancy citing her ongoing divorce proceedings. The woman had filed the divorce petition alleging physical cruelty against her husband and stated that she does not wish to continue her pregnancy amid the divorce proceedings. High Court's order was uploaded only today.

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 noted that an individual's marital status could be legally misleading as a woman could be legally married even though they may be effectively without the benefit of such arrangements and be subjected to prejudice on account of the varied circumstances.

“No doubt, “marital status”, in its semantic sense, is a legally defined marital state; but it is well recognised that there are several types of such changes, namely single, married, widow, divorced, separated etc. Apodictically, de jure marital status certainly is a factum of an individual continuing in the marital bond in the legal sense; while, it is surely possible to perceive a de facto marital status simultaneously, where such a person is either separated, abused or subjected to exploitation. The relevance of “marital status” has a direct reflection on women's physical and mental well-being and when Rule 3B of the 'MTP Rules' adopts the words “widowhood and divorce” in brackets, while defining the change of marital status, it certainly points to a factual situation where a woman suffers immeasurably on account of the circumstances that she is subjected to” added the court.

Court thus permitted the woman to terminate her pregnancy.

Counsel for Petitioner: Advocate R Leela

Counsel for Respondent: Advocates Shylaja Varghese and Vidya Kuriakose

Citation: 2024 LiveLaw (Ker) 190

Case title: XXX v Union of India