Married Woman Undergoing Abortion Due To Marital Discord Not An Offence If Done As Per MTP Act: Delhi High Court

Reaffirming reproductive autonomy of women, the Delhi High Court on Tuesday held that marital discord impacting mental health of a woman is a valid ground to seek abortion under the provisions of the Medical Termination of Pregnancy Act. “The right of exercise of reproductive choice, though is restricted by Medical Termination of Pregnancy Act, it also recognizes and protects her right to say no to the pregnancy, if her mental or physical health is at stake,” Justice Neena Bansal Krishna held. The Court thus quashed the summoning of a woman under Section 312 of the Indian Penal Code for undergoing an abortion at 14 weeks due to marital discord affecting her mental health.The Court held that a woman's decision to undergo abortion within the framework of the MTP Act cannot be criminalised, particularly when taken due to marital discord affecting her mental health.“…the mental trauma that a woman facing marital discord, can cause severe mental health issues leading to both, physical and mental harm, which cannot be brushed aside lightly and must be considered in the right perspective, in the given circumstances,” the Court said. Justice Krishna said that abortion is always a difficult and careful decision for a woman who alone should be the choice maker. The Court said that a child is born when he takes the first breath and becomes a human entity and unborn foetus cannot be put on a higher pedestal than the right of a living woman. “This argument based on morality, therefore, cannot be put on a pedestal and may not be given over-emphasized importance, when considering the rights of a pregnant woman, who alone suffers the pain of pregnancy,” it added.Further, the judge said that control over reproduction is a basic need and a basic right of all women and the right to make a choice rests in the control of a woman, who exercises over her own body and reproductive choice. “The women's reproductive rights may include the right to legal and safe abortion, the right to birth control, freedom from coerced sterilization and contraception, the right to access good quality reproductive health care and informed reproductive choice,” the Court said. Referring to various settled judgments on the issue, Justice Krishna said that if continuance of pregnancy is harmful to the mental health of the pregnant woman, then it is a good and legal ground to allow termination, if the pregnancy is not exceeding 20 weeks.The Court said that Section 5 of the MTP Act, which stands on a different footing, can be evoked at any point of time if the registered medical practitioner is of the opinion, in good faith, that termination of pregnancy is immediately necessary to save the life of the pregnant woman, irrespective of restriction of 12 or 20 weeks as mentioned in Section 3 of the MTP Act.“The golden thread running through the aforesaid Sections of MTP Act, is the concern for the grave injury to her physical or mental health, which needs to be assessed in terms of woman's actual or reasonable foreseeable environment. It would be doing great injustice to interpret “mental health” in a narrow pedantic manner, if it is interpreted as a physiological or neurological condition,” the Court said.“The harsh reality of this misogynistic world cannot be ignored while considering the mental trauma of a woman facing marital discord, which gets compounded many times if she is pregnant. Not only is she left to fend for herself, but almost always is left to shoulder the responsibility of bringing up a child single handedly, with no support forth coming from any source. It is only a woman who suffers. Such pregnancy brings with it insurmountable difficulties, leading to grave mental trauma,” it added. The Court said that it is mandatory that the registered medical practitioner while forming opinion of necessity of termination of pregnancy, must take into account whether it is injurious to her physical or mental health. While doing so, the woman‟s actual or reasonable foreseeable environment, may be taken into account, it added. “If a woman does not want to continue with the pregnancy, then forcing her to do so represents the violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health,” the Court said.In this context, the judge observed that despite the enactment of MTP Act, number of hurdles continued to prevent full access to safe and legal abortions, pushing women to avail of clandestine, unsafe abortions.It was observed that such barriers are a serious impediment and deter a woman to seek safe and legal abortions and also become a major contributory factor to delay in accessing abortion services.Referring to Rule 3B of MTP Rules, 2021 which specifies categories of women eligible for abortion between 20 to 24 weeks of pregnancy, the Court said that the provision does not enumerate all the potential changes that a woman‟s material circumstances may undergo.“It is evident that it is not the...

Married Woman Undergoing Abortion Due To Marital Discord Not An Offence If Done As Per MTP Act: Delhi High Court

Nupur Thapliyal

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