BLOGS

Published Date : 10 May 2019 | APARNA AGARWAL

 

Does a woman have a right to terminate pregnancy against the will of her husband?

 

The Supreme Court of India upheld that a woman has an unquestionable right to conceive or terminate her pregnancy while rejecting a man's appeal to seek damages from his antagonized spouse for going for an abortion without his assent.

The husband termed the abortion as "unlawful" and had additionally requested compensation from the lady's brother and parents, and the two Doctors who did the abortion. The high court of Punjab and Haryana has dismissed the petition of the husband stating that termination of pregnancy was the sole right of the lady. 

Bench including Chief Justice Dipak Misra, Justice A M Khanwilkar, and Justice D Y Chandrachud upheld the decision of the HC that, " Keeping in view the stressed relations between the couple, the wife's choice to terminate the pregnancy was correct. The termination of this pregnancy had not soured the relations between the two...  So, keeping in mind the lawful position, it is held that no express or inferred assent of husband is required for terminating a pregnancy under Medical Termination of Pregnancy Act." 


The bench headed by CJI additionally invigorated the HC order[1] by including, "She is a mother and an adult who says she didn't need the pregnancy. In what manner would she or others be made at responsible for it? Indeed, even a mentally challenged lady has a privilege to terminate her pregnancy. In what manner can guardians and specialists be made responsible?"

 
The couple got hitched in 1994 and had a child in 1995. Owning to the conflict, the wife and child were living with her guardians in Chandigarh since 1999. Amid the pendency of the spouse's appeal to looking for support, the Lok Adalat in Chandigarh had intervened and asked the couple to live with each other in husband's home in Panipat.

In November 2002, they began living together and in January 2003 she found that she was pregnant. As the relationship hinted at no change, the lady wanted to terminate the "undesirable" pregnancy. The husband protested. She reached her parents, who took her to Chandigarh. The husband declined to sign the clinic papers for medical termination of pregnancy however the lady proceeded with the abortion at a Chandigarh hospital.                                                  

The husband filed a common suit against his spouse, her guardians, and her brother, along with the doctors for a compensation of Rs 30 lakh towards damages on the basis of mental torture, harassment, and agony. He contended that the termination of pregnancy with no medical need and without the assent of the unborn's father was unlawful under the MTP Act.                               

 

The husband’s claim was rejected in view of the medical termination of pregnancy Rules, 1975. Rule 8 provides as under:-

" 8. Form of Consent- The consent referred to in sub section (4) of Section 3 shall be given in Form C."

 

Form C is prescribed as under:-

FORM C (see rule 8) I............................... daughter/wife of ........................... aged about..............years of ............................................................ .....................

................................................................(here state the permanent address)..................................................................at present residing at..........................................do hereby give my consent of the termination of my pregnancy at.................................... ........................... ............................................................... .....................................................

(State of name of place where the pregnancy is terminated) ...........................

Signature Place...........................

Date.............................

 

This form is to be signed by the wife only, showing her willingness to have the pregnancy terminated or aborted. The Medical Termination of Pregnancy Act, 1971(34 of 1971), no where provides for the express or implied consent of the husband. The wife is the best judge and is to see whether she wants to continue the pregnancy or to get it aborted.

The SC also agreed with the Punjab and Haryana High Court and pointed at some of the poignant rulings upheld by them:

  • "If the wife has consented to matrimonial sex...it does not mean that she has consented to conceive a child.”

  • "The woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared to give birth to a child."

  • "Unwanted pregnancy could affect a woman's health."

 

Thus, it is a personal right of a woman to give birth to a child, and not the right of a husband to compel her wife to give birth to a child for the husband.

 

 

 

[1] C.R.No. 6337 of 2011, D/d. 29.11.2011