Matrimonial discord not a reason for termination of pregnancy, says Bombay High Court

By: | Updated: July 25, 2018 2:30 PM

A recent Bombay High Court judgment makes it clear that a pregnant woman cannot get legal relief for terminating her pregnancy on the grounds of marital discord.

Matrimonial discord, abortion, pregnancy, MTP Act, epilepsy patientGiven the marital discord with her husband, the petitioner does not want to continue with her pregnancy which is currently at 23 weeks.

A recent Bombay High Court judgment makes it clear that a pregnant woman cannot get legal relief for terminating her pregnancy on the grounds of marital discord. According to the petitioner, she got married in 2012 but was not living with her husband till 2016 as she wanted to complete her Std 12. After three unsuccessful attempts, the petitioner went to live with her in-laws and her husband but when differences cropped up, she returned to live with her parents. They patched again after she had made an official complaint pertaining to violence and cruelty by her husband. However, the petitioner says her husband continued with cruelty and violence towards her and that she is an epilepsy patient.

Given the marital discord with her husband, the petitioner does not want to continue with her pregnancy which is currently at 23 weeks. She wants to resume studies and return to live with her parents.

So, what is the legal position in a case like this?

The Medical Termination of Pregnancy Act 1971, known as the MTP Act, has mostly been enacted on the lines of UK’s Abortion Act in 1967, which is why that right to abortion is viewed more as an ‘exception to the rule’ than as a ‘normal recourse’ for pregnant women.

To be more precise, the MTP Act provides for termination of pregnancy in case there is a risk to the pregnant woman’s health, be it physical or mental, and on humanitarian grounds, where the pregnancy occurred due to a crime like rape.

In S vs Chandigarh Administration [2009 9 SCC 1], the Supreme Court cited the case law upheld by the apex court in Khatoon case as follows:

“In the case of pregnant women, there is also a ‘compelling state interest’ in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of MTP Act 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.”

In cases like this, how do courts interpret the provisions of these laws?

In Khatoon case, 2018 SCC Online Bom 11, we get a glimpse of what courts need to consider when they interpret the law.

1. Interpretation has to be based on text and context.

2. The basic principle of interpretation of any statute is that courts cannot add nor subtract even a single word.

3. When the courts interpret a section, it has to be read with all of its parts together, no part can be omitted.

4. The court cannot assume that the legislature, while it made and passed the statute, committed a mistake in doing so even if there is some defect in the phrase or wording used.

5. The Court can only iron out the creases but it must not alter the fabric, of which the Act (i.e. the law) is woven.

READ: Good news for single mothers! Name of child’s father need not be mentioned in birth certificate, says Madras High Court

Some observations of the apex court in this case are as follows:

1. There is no grave danger to the petitioner’s mental and physical health.

2. There is no substance in the petition and deserves to be dismissed.

While dismissing the petition, the court held that the petitioner’s marital discord cannot be considered as a reason to permit her to terminate pregnancy under the Medical Termination of Pregnancy Act, 1971.

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