Strain In Marriage Ground For Wife To Seek Abortion Of Pregnancy Upto 24 Weeks, Legal Divorce Or Husband's Consent Not Required : Kerala High Court

In a significant ruling, the Kerala High Court Monday said that the drastic changes in matrimonial life of a pregnant woman fulfils the condition of 'change of her marital status' in Rule 3B of the Medical Termination of Pregnancy (MTP) Rules, thus making her eligible to undergo medical termination of pregnancy up to 24 weeks.

Citing a Supreme Court judgement in which it was held that a woman's reproductive choice is also a dimension of her personal liberty and also relying on the apex court's recent order in an MTP case, Justice V.G. Arun said:

"If interpreted and understood in the above manner, the drastic change in the matrimonial life of a pregnant woman is equivalent to the 'change of her marital status.' The word 'divorce' cannot in any manner qualify or restrict that right".

It was further added by the Court that, 

"the Medical Termination of Pregnancy Act does not contain any provision requiring the woman to obtain her husband's permission for terminating the pregnancy. The reason being that it is the woman who bears the stress and strain of the pregnancy and the delivery".

The Court thus, found in the instant case that the woman could not be denied permission for terminating her pregnancy when there has been drastic changes in her matrimonial life, although she may not be legally divorced, and her husband's permission would not be required for the same. 

Under the latest MTP rules, only a certain category of women are eligible for termination of pregnancy between 20 and 24 weeks. Under the 'Change of Marital Status' category, the rules only recognise widowhood and divorce. 

The court passed the ruling on a 21-year-old woman's petition seeking permission to undergo Medical Termination of Pregnancy (MTP). Her recent marriage had run into a rough weather due to the alleged excesses committed against her by her husband and her mother-in-law. Her husband even questioned the paternity of the unborn baby and refused to provide any support, the court was told. Considering the circumstances, when the woman decided to terminate the pregnancy and approached the doctors, she was told she does not fulfil the conditions under MTP Act and Rules.

Before the court, the woman's husband denied the allegations but did not say anything on the question of termination. However, the State argued that the decision has to be taken jointly by the spouses.

Permitting the woman to get her pregnancy terminated at the Medical College Kottayam or any other government hospital, the court said she will file an appropriate undertaking, authorizing the medical team to conduct the surgery at her risk.

However, the court said if the baby is alive at birth, the hospital shall ensure its best medical treatment so that it develops into a healthy child. "If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall take up the responsibility for the time being and offer requisite medical support and facilities," said the court further.

The Case

The woman was doing her graduation in B.A. Economics, but flunked one paper. It was while preparing for the supplementary examination, she joined a computer course; there she met and fell in love with a bus conductor. She eloped with him on November 30 in 2021 and entered into a customary marriage on March 11. To her dismay however, her husband and his mother started ill-treating her, and demanded dowry, the court was told.

"When the petitioner became pregnant in April, 2022, he even raised suspicion regarding the paternity of the baby. Due to increasing cruelty meted out to her at her husband's house, she left the home on 22nd August 2022, and decided to return to her parents," her petition said.

She sought medical termination of her pregnancy at the Family Planning Clinic at the Kottayam Medical College on August 31. However, the doctors at the Clinic refused the same, citing that there were no legal documents to prove the separation or divorce of the petitioner from her husband.

The woman then filed a police complaint against her husband and his mother at Kanjirappally Police Station on September 4 leading to an FIR under Section 498A r/w 34 IPC against then. However, the clinic again turned down her request on the ground that the pregnancy was of over 21 weeks and there was no indication of fetal anomaly or maternal illness. The matter then reached the High Court which directed  the Superintendent, Medical College Hospital, Kottayam on September 15 to constitute a Medical Board for examining the petitioner and submitting its opinion.

The opinion rendered by the Board on September 17 said that, "continuation of pregnancy may have a negative impact on her mental health", and hence recommended that the MTP may be conducted.

On behalf of the petitioner, it was contended by Advocates Liji J. Vadakedom, Rexy Elizabeth Thomas, and Tom E. Jacob, that the pregnancy was causing extreme stress to the petitioner, which might ultimately impact her mental health, which was also substantiated by the opinion of the Medical Board.

It was contended by the counsels that the provisions of the MTP Act ought to be liberally construed, recognizing the woman's reproductive choice to either procreate or to abstain from procreating. It was also submitted that there was only limited emotional and financial support to the petitioner and hence, taking into account the environment in which she has now been placed also, the petitioner's pregnancy ought to be terminated.

The Court in the order observed the MTP Act was introduced with the intention to liberalise certain existing provisions relating to termination of pregnancy. It noted that the petitioner belonged to the weaker section of society and didn't have the financial capacity to bring up the child on her own. The court also recorded that she lacked any emotional support from her husband, which is evidenced by records which indicated that he had refused to accompany her to the hospital from the initial stages of her pregnancy.

The court perused the categories of women eligible for termination of pregnancy upto 24 weeks under Rule 3B, and considered whether the case of the petitioner could be fit into one where the marital status had changed during the ongoing pregnancy.

"She was allegedly ill treated compelling to leave the company of her husband and start residence at her parental house. Moreover, alleging cruelty meted by the 7th respondent and his mother, the petitioner has filed a criminal complaint. It is also pertinent to note that, even before this Court, the 7th respondent did not express any interest in taking back the petitioner," said the court.

The case has been posted again after 2 weeks. 

Case Title: X vs Union of India 

Click Here To Read/Download The Order