The Supreme Court has dismissed a man’s petition seeking damages from his estranged wife for undergoing Abortion without his consent, and ruled that an adult woman had an unimpeachable right to give birth or terminate pregnancy.
Terming the abortion, to which he had objected, “illegal”, the husband had also demanded compensation from the woman’s parents and brother, and two doctors. The Punjab and Haryana high court had dismissed the husband’s plea saying termination of pregnancy was the sole prerogative of the woman .
The Supreme Court bench comprising of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud upheld the decision of the HC, which had said, ” Keeping in view the strained relations between the husband and wife, the wife’s decision to terminate the unwanted fetus was right.
The termination of pregnancy had not soured the relations between the two. So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting pregnancy terminated under the (Medical Termination of Pregnancy) Act.”
The CJI-headed bench further fortified the HC ruling by adding, “She is a mother and an adult who says she did not want the pregnancy. How can she or others be made liable for it? Even a mentally challenged woman has a right to terminate her pregnancy. How can parents and doctors be made liable?”
The couple got married in 1994 and had a son in 1995. Due to discord, the wife and son had been staying with her parents in Chandigarh since 1999. During pendency of the wife’s petition seeking maintenance, the Lok Adalat in Chandigarh had mediated, and persuaded the couple to live together in the husband’s house in Panipat.
In November 2002, they started living together and in January 2003 discovered that she was pregnant. As the relationship showed no signs of improvement, the woman wanted to terminate the “unwanted” pregnancy. The man objected. She contacted her parents, who took her to Chandigarh. The husband refused to sign the hospital papers for medical termination of pregnancy but the woman went ahead with the abortion at a Chandigarh hospital.
The man filed a civil suit against his wife, her parents and brother, and the doctors for recovery of Rs 30 lakh towards damages on account of mental pain, agony and harassment. He argued that the termination of pregnancy without any medical need and without the consent of the unborn child’s father was illegal under the MTP Act.
The doctors appealed against this in the Punjab and Haryana HC, which dismiss ed the suit before the trial court. The HC said, “This is a most unfortunate case where a husband has brought privileged acts… of husband and wife in the court.”
” If the wife has consented to matrimonial sex , it does not mean that she has consented to conceive a child,” the HC said, “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. 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 would affect the mental health of the woman.”
The HC had ordered the husband to pay a cost of Rs 25,000 to each respondent.