Estranged wife free to abort pregnancy, rules Delhi High Court

New Delhi: Forcing a woman to continue with her pregnancy violated her bodily integrity and aggravated mental trauma, the Delhi High Court has said while discharging an estranged wife from a criminal case filed by her husband for medically terminating her 14-week foetus.

Upholding a woman’s autonomy to seek abortion in case of marital discord, Justice Neena Bansal Krishna said the petitioner-wife could not be said to have committed an offence under Section 312 (causing miscarriage) of IPC in this case.

The court said that freedom of choice was a facet of personal autonomy and control over reproduction was a basic need and right of all women.

The bench found the Medical Termination of Pregnancy Act (MTPA) did not require a pregnant woman to obtain her husband’s permission for termination of pregnancy, and the “golden thread” running through the enactment was the concern for “grave injury” to a woman’s physical and mental health.

“If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma, which would be deleterious to her mental health,” the January 6 verdict said.

The court held that when the Supreme Court court, in its judgments, has recognised the autonomy of a woman to seek abortion in the situation of a marital discord which can impact her mental health, and also the provision of Section 3 MTPA and the Rules framed therein, it cannot be said that an offence under Section 312 IPC was committed by the petitioner.

The court further observed that MTP Rule 3-B(c) made a woman eligible for medical termination of pregnancy if there was a change in the marital status, like widowhood and divorce, and the benefit granted by this rule must be understood as extending to all women who undergo a “change of material circumstances”.

The petitioner challenged a sessions court order which upheld her summoning before a magisterial court for the offence under Section 312 IPC.

She contended that her reproductive autonomy guaranteed under Article 21 of the Constitution had been criminalised and her lawful exercise of fundamental right to privacy, bodily integrity and decisional liberty was overlooked.

The husband argued that since the couple was living together on the date of abortion, they had no marital discord and hence, provisions of the MTPA would not be applicable.

The court, however, rejected this contention and said marital discord could not be “overstretched” to mean that it exists only after the parties have separated and gone into litigation.

In this case, the reason given by the wife in her OPD card showed that she already felt the stress of marriage and had made a decision to separate from her husband.

Evoking the “harsh reality of this misogynistic world”, the court said that in an accidental or unwanted pregnancy, the man might not be there to share the burden, and the woman would be “left to fend for herself”.

“It is only a woman who suffers. Such a pregnancy brings with it insurmountable difficulties, leading to grave mental trauma... There are social, financial, and other aspects immediately attached to the pregnancy of a woman, and if the pregnancy is unwarranted, it can have serious repercussions. It undoubtedly affects mental health,” the judge stated.