Woman Living Separately Without Divorce Can Terminate Pregnancy Without Husband's Consent: Punjab & Haryana High Court

The Punjab & Haryana High Court held that a woman living separately from her husband without obtaining divorce can terminate pregnancy without taking consent from the husband under the Medical Termination of Pregnancy Act.Justice Kuldeep Tiwari referring to X Vs. Principal Secretary, Health and Family Welfare Department and Anr and, Rule 3(B)(c) of the The Medical Termination of Pregnancy Rules, 2003 said, "giving a purposive interpretation to the expression “change of marital status”, this Court can safely conclude that although the petitioner does not fall within the purview of “widow or divorcee”, however, since she has decided to live separately from the company of her husband without legally obtaining divorce, hence she is eligible for termination of pregnancy."The Court allowed the woman to terminate her pregnancy which as on January 11 was over 18 weeks and 5 days.These observations were made while hearing the plea of a woman seeking directions upon the official respondents to terminate her pregnancy, without her husband's consent. It was submitted that her pregnancy is medically terminable on account of length not exceeding the period prescribed for termination in the MTP Act.The Counsel for the petitioner argued that the woman was subjected to cruelty by her in-laws family on account of bringing less dowry and her husband also maltreated her and he even brought a portable camera twice in their bedroom to secretly record their personal moments.On account of alleged cruelty the woman started living separately and submitted that continuation with her unwanted pregnancy would cause grave injury to her physical and mental health.After examining the submissions, the Court considered the question "whether in the given facts and circumstances, where although the petitioner has departed from the company of her husband on account of domestic violence but not legally divorced, yet she is eligible for termination of pregnancy without consent of her husband on the basis of change of marital status?”.The Court referred to X Vs. Principal Secretary, Health and Family Welfare Department and Anr of the Supreme Court to underscore the expression “change of marital status” under Rule 3B should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.Justice Tiwari highlighted that the Supreme Court held that, the words “widowhood and divorce”, which are mentioned in brackets at the tail end of Rule 3B(c) does not hinder interpretation of the rule because they are illustrative. "The change in material circumstances when a woman is abandoned by her family or her partner was also recognized by the Hon'ble Supreme Court," the Court added.Reliance was also made on X Vs. The Postgraduate Institute of Medical Education and Research, Chandigarh wherein , the Co-ordinate Bench of the High Court held that “Forced into an unwanted pregnancy, a woman is likely to experience significant physical and emotional challenges. Dealing with the aftermath of such a pregnancy, even after childbirth, places an extra burden on the petitioner, affecting her ability to pursue other opportunities in life, such as employment and contributing to her family's income.”In the light of the above, the Court allowed the plea and directed the petitioner "to approach the C.M.O. concerned within three days from the high court order, whereupon, the latter shall, in accordance with the requisite Act and Rules, take expeditious measures for medically terminating the pregnancy of the petitioner."Mr. Ketan Chopra, Advocate for the petitioner.Mr. Pardeep Bajaj, D.A.G., Punjab.Title: XXX v. FORTIS HOSPITAL MOHALI AND OTHERSCitation: 2025 LiveLaw (PH) 13Click here to read/download the order

Woman Living Separately Without Divorce Can Terminate Pregnancy Without Husband's Consent: Punjab & Haryana High Court

Aiman J. Chishti

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