‘No Need for Husband’s Consent’: Woman Separated from Husband Allowed by Kerala HC to Terminate 21-Week Pregnancy

High Court of Kerala Antiques fraud Investigation

Khushi Bajpai

Published on: September 27, 2022 at 19:40 IST

In the case of Aryamol vs. Union of India & Ors., the Kerala High Court allowed a lady who claimed to be divorced from her allegedly violent husband to end her 21-week pregnancy.

The Medical Termination of Pregnancy Act (MTP Act) does not require a husband’s approval for pregnancy termination, as single-judge Justice VG Arun emphasized.

According to the rules created by the MTP Act, “change of marital status during the ongoing pregnancy (widowhood and divorce)” is one of the criteria for authorizing abortion between 20 and 24 weeks of gestation.

A “drastic change in her matrimonial life” has occurred despite the fact that the pregnant woman in the instant case was neither legally married nor divorced, according to the court.

This change is evidenced by the fact that she has filed a criminal complaint against her husband and that he has shown no signs of wanting to stay with her.

The Supreme Court recently ruled in X vs. Principal Secretary, Health and Family Welfare Department & Anr., in which it applied a purposeful interpretation of the MTP Act and decided that a pregnant woman’s abrupt change in her married life constitutes a “change of marital status.”

“According to the ruling in Suchita Srivastava vs. Chandigarh Admn., a woman’s right to choose her reproductive options is a component of her personal liberty as defined by Article 21 of the Indian Constitution. There can be no limitations placed on a woman’s ability to exercise her reproductive choice to either have children or not have children.” 

If taken and comprehended in the manner stated above, a pregnant woman’s abrupt shift in her married life is similar to a ‘change of her marital status.’ That right cannot in any way be limited or qualified by the term ‘divorce’,the prescribed decree.

Relevantly, the Court also noted that the Act does not mandate that a woman get her husband’s approval before terminating a pregnancy. According to the Court’s order-

“The Medical Termination of Pregnancy Act does not contain any language requiring the woman to get her husband’s consent before ending the pregnancy, which is an important additional point to highlight. Due to the fact that women experience the stress and strain associated with pregnancy and delivery,”  

The court granted the request made by a pregnant woman who was 21 years old and wanted to have her pregnancy, which was 21+ weeks along, medically terminated.

While studying her bachelor’s degree and while he was a bus operator in the neighborhood, the petitioner met and wed her husband against the objections of her family.

However, the petitioner claimed that after their marriage, the husband and his mother mistreated her by making dowry demands.

She further claimed that her spouse denied being the father of the unborn child and declined to offer emotional or financial support.

The specialists at the Family Planning Clinic she visited turned down her request to end her pregnancy since there were no official paperwork proving her separation from or divorce from her spouse.

She then reported her husband to the police, and a case was opened for the offence listed in Section 498A read with Section 34 of the Indian Penal Code.

She returned to the clinic, but the physicians still wouldn’t grant her request, so she was forced to go to the Court.

The petitioner’s attorney, Liji J. Vadakedom, argued that the MTP Act and Rules’ provisions call for a liberal reading rather than a restrictive one, acknowledging the woman’s reproductive option to either reproduce or refrain from doing so.

Government Pleader, however, argued that because the petitioner is a married lady, the decision to end the pregnancy must be made jointly by the spouses.

It was argued that since this is Rule 3B’s (contended) outcome, any reading to the contrary is invalid.

The Court noted that the Medical Board established in its order had recommended MTP because continuing the pregnancy would be harmful to the petitioner’s mental health.

The petitioner’s environment was another deciding factor mentioned by the Court.

“It is clear from the allegations and defenses that the petitioner is a member of society’s underprivileged group and lacks the resources to raise the child on her own.”

“The documents also show that the petitioner’s husband had declined to go to the hospital with her from the beginning of her pregnancy. Therefore, the petitioner is also denied access to emotional assistance,” the Court made a note.

The issue before the court was whether the petitioner’s request for permission to end the pregnancy could be granted even though she does not meet the requirements for women who can legally end their pregnancies.

“Reading the rule reveals that pregnant women whose marital status has changed (via widowhood or divorce) are also covered. Unquestionably, the petitioner’s marriage has changed drastically after becoming pregnant,” the Court made a note.

As a result, it approved the petitioner’s request to end her pregnancy and provided the required guidance.

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