'Reminder Of Trauma', Punjab & Haryana High Court Allows Married Woman Who Was Allegedly Sexually Assaulted By Husband To Terminate Pregnancy

Observing that if the child is born "shall be a reminder of trauma and agony she had to undergo", the Punjab & Haryana High Court has allowed the termination of pregnancy of a married woman who was allegedly sexually assaulted by her husband.

Justice Vinod S. Bhardwaj said, "It can also not be lost sight of the fact that the pregnancy is claimed as an outcome of unwanted relationship which she was forced to enter into. The petitioner is even not willing to continue the said relationship as is evident from the petition filed by her before the Family Court, Amritsar for seeking a decree of divorce. The child, if born, would not be a reminder of good memories, but shall be a reminder of trauma and agony she had to undergo. As an unwanted child, the member is also likely to either live a tormenting life or a life with no dignity."

The Court further added that, in either of the said situations, the mother as well as the child shall suffer social stigma and incarceration for the rest of their lives. "The same is not in the best interest of both- the mother as well as the child; and the petitioner already having expressed her unwillingness to bring up the child, it may not even be advancing the cause of the unborn, who will grapple to come to terms with life and will be subjected to maltreatment for no fault."

The Court was hearing the plea of a woman seeking directions to terminate her pregnancy which was more than 15 weeks, in accordance with the Medical Termination of Pregnancy Act, 1971 (MTP Act).

It was contended by the petitioner that her husband had forcefully married her and committed sexual assault due to which she was impregnated. She had also filed a divorce plea and the same is pending before the Family Court.

The petitioner submitted that she is not willing to bear and give birth to the child. However, when she approached the doctors, they orally refused to entertain the petitioner without the directions of the Court.

As per the medical board report, the petitioner was eligible for MTP as per the guidelines of the MTP Amendment Act 2021.

After hearing the submissions, the Court relied on  X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and another (2023), to underscore, "Married women may also form part of the class of survivors of sexual assault or rape. The ordinary meaning of the word "rape" is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony."

The judge also referred to the pleadings from the divorced plea wherein it was submitted that the petitioner was mercilessly beaten and her husband did not allow her to contact her family members.

The Court also took note of the submissions, that the husband had forcefully married after allegedly abducting, beating and threatening her to harm her family.

While allowing to termination of the pregnancy Justice Bhardwaj opined, "Such decisions are tough, however, life is not just about being able to breathe – rather it is about being able to live with dignity. Where the denial of dignity and social as well as family acceptance or approval is 'a writing' on the wall, it compounds agony of the child and leads to greater injustice. Balance thus needs to be drawn to examine the overall wellbeing."

"Whether to shape the trauma of a victim or to prolong it by delivery of the child, who is to be only victimized. The choices thus reduce and it seems more prudent to allow the termination of pregnancy," said the Court.

In light of the above, the Court directed the "Civil Surgeon, Civil Hospital, Amritsar is directed to take all appropriate and necessary steps needed to carry out the medical termination of the pregnancy of the petitioner upon satisfaction of all such necessary conditions as prescribed in law".

Consequently, the petition was allowed.

Sumit Puri, M/s Vaakya Legal for the petitioner.

Akshita Chauhan, DAG, Punjab.

Title: XXX v. State of Punjab & Ors.

2024 LiveLaw (PH) 166

Click here to read/download the order