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SC Upholds Punjab and Haryana HC’s Ruling That A Woman Does Not Need Her Husband’s Consent To Abort

A bench of the Chief Justice Dipak Misra, A.M.Khanwilkar and D.Y.Chandrachud, dismissed on Friday, a Civil Appeal, which has been pending since 2012, seeking to recognise husband’s consent to terminate a pregnancy.

A matrimonial dispute between husband and wife led to separation of the couple, with the wife living with her minor son, and her parents.  The wife filed an application under section 125 CrPC claiming maintenance from the husband.  During the pendency of the application, with the efforts of the Lok Adalat, she agreed to accompany the husband.  During this period, the wife conceived, although the differences between her and husband persisted. The wife wanted to abort, but the husband refused to sign the papers giving his consent to terminate the pregnancy.  He filed a suit for mandatory injunction restraining the wife from getting the foetus aborted.  That suit was withdrawn after she underwent Medical Termination of Pregnancy.

The husband filed a civil suit for the recovery of Rs.30 lacs  towards damages on account of mental pain, agony, and harassment against his estranged wife, her parents, brother and the doctors who got her pregnancy terminated.  The ground taken in the suit was that the specific consent of husband, being the father of the yet to be born child, was not obtained and the MTP was done in connivance with the respondents.

As the pregnancy was less than 12 weeks old, the doctors terminated the pregnancy with the sole consent of the mother.

The Punjab and Haryana High court, in its judgment, had held that under Section 3(4)(b) of the Medical Termination of Pregnancy Act, only the consent of the pregnant woman undergoing termination of pregnancy is required.  “An unwanted pregnancy as per Explanation II to Section 3(2) of the Act is a grave injury to the physical or mental health of the woman”, the high court held.

The high court was told that Section 5(1) of the Act would not apply in this case because  the wife was well qualified, of sound mind, and a mother of a grown up child , and therefore, the consent of the husband was not required to be obtained for termination of pregnancy.

Justice Jitendra Chauhan of Punjab and Haryana High Court, in his judgment dated November 29, 2011, had stated that this was an unfortunate case where a husband had brought the privileged acts and conducts between him and his wife to the court.   Justice Chauhan held as follows:

“Besides love and affection, physical intimacy is one of the key elements of a happy matrimonial life.  In the present case, the wife knew her conjugal duties towards her husband.  Consequently, if the wife has consented to matrimonial sex and created sexual relations with her own husband, it does not mean that she has consented to conceive a child.  It is the free will of the wife to give birth to a child or not.  The husband cannot compel her to conceive and give birth to his child.   Mere consent to conjugal rights does not mean consent to give birth to a child for her husband.  The wife did so in order to strengthen the matrimonial ties.”

Justice Chauhan added:

“The wife is the best judge and is to see whether she wants to continue the pregnancy or to get it aborted.  When the husband has no right to compel her wife, not to get the pregnancy terminated, he has no right to sue her wife for compensation.  The husband also has no cause of action against his wife on this account.   Keeping in view the strained relations between the husband and wife, the decision of the wife to get the termination of unwanted foetus was right.  It was not the act of termination of pregnancy, due to which relation became sour, but the relations between the husband and the wife were already strained.  So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting the pregnancy terminated under the Act.

Justice Chauhan considered the judicial precedents where the courts had considered the termination of pregnancy by the wife as mental cruelty, and given divorce to the husband on this ground, but found the facts of this case unique.

Justice Chauhan further held: “Nobody can interfere in the personal decision of the wife to carry on or abort her pregnancy which may be due to the reason that an effort to live together under one roof has failed.  A woman is not a machine in which raw material is put and a finished product comes out.  She should be mentally prepared to conceive, continue the same and give birth to a child.  The unwanted pregnancy would naturally affect the mental health of the pregnant woman.  When the husband/plaintiff came to know that his wife was pregnant from his loins, it was his duty to convince  his wife to continue with the pregnancy, but his coming to the court by filing a Civil Suit for permanent injunction restraining the wife from getting the pregnancy terminated was a shameful act on his part.”

The High Court, therefore, found the act of the medical practitioners, who were arraigned as respondents, in terminating her pregnancy as legal and justified.  Since law is liberal for effecting such termination, the Act does not lay down any provision on husband’s consent in any situation.

The High Court also rejected the allegation of connivance of the wife’s parents and brother, and found the husband’s suit against them prima facie vexatious.  The High Court, therefore, directed the husband to pay the costs of Rs.25000 to each of the defendants in the case.

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  • Sekar Subramaniam says:

    I applaud this landmark decision. The relationship between husband and wife is already strained and she living separately has the responsibility to keep or terminate the pregnancy. Instead of convincing and gaining the trust of his wife,to file straight to the court to restrain is indeed a shameful act.