SC upheld: Wife doesn’t need husband’s OK for abortion

Women can get their rights, freedoms and dignity, only when they assert and a vogue for themselves.

Wife doesn’t need husband’s okay with abortion. This is an issue which has become the subject of deliberation and contention after the SC’s judgment. There are numerous judgments held in infringing the right of women/ wife to abort without her husband’s consent.

Before we go to the depth of the judgment, I would like to put some light on the two basic rights that can come in our minds when we hear of this.

First up is right to personal liberty. Right to personal liberty is the most precious, sacrosanct, inalienable and fundamental of all the fundamental rights of the citizen. Article 21 of Indian Constitution enshrined one of the most precious fights in the form of life and personal liberty guaranteed under chapter three of Indian Constitution. Supreme Court in India, the guardian of fundamental rights, has given a wide interpretation to term life. “The deprivation not only of life but of whatever God has given to everyone with life or its growth and enjoyment is prohibited by the provision in question if its efficacy is not frittered all ray by judicial decision”.

Second is right to abortion. Throughout history, induced abortions have been a source of considerable debate and controversy. An individual’s personal stance on the complex ethical, moral, and legal issues has a strong relationship with the given individual’s value system. A person’s position on abortion may be described as a combination of their personal beliefs on the morality of induced abortion and the ethical limit of the government’s legitimate authority.

Abortion was being practised before in a very clandestine manner because it was illegal. The passing of the Act made medical termination of pregnancy legal, with certain conditions for safeguarding the health of the mother.

Since the right to life includes right to enjoy life with all the limbs and faculties, it implies, therefore, that right to procreation and right to have control over reproductive organs are included in the broader concept of the right to life.

What was the petition?

The petitioner and the women got married in 1994 and had a son the very next year. Their relationship strained later and the woman and their son had been living with her parents in Chandigarh since 1999. Later the Lok Adalat in Chandigarh intervened and persuaded the couple to live together in the husband’s house in Panipat.

They started living together since November 2002 and in January 2003, the woman found out that she was pregnant with their second baby. However, differences and discord cropped up between the couple again and the woman decided to go for an abortion.

The petitioner was against the abortion and even refused to sign the hospital papers for medical termination of pregnancy.

However, the woman underwent an abortion in a Chandigarh hospital, following which he filed a civil suit against his wife, her family and the doctors. He demanded a compensation of Rs 30 lakh to pay for the mental pain, agony and harassment.

The petitioner argued that the abortion was done despite the pregnancy posing any danger to his wife’s health. The foetus was also healthy. Yet, the man alleged, the pregnancy was terminated without his consent, which is illegal under the MTP Act.

 She is a mother and an adult. How can she or others be made liable for it? Even a mentally challenged woman has the right to terminate her pregnancy, the Bench headed by Chief Justice of India, Dipak Misra said.

“If the wife has consented to matrimonial sex… 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,” the HC was quoted as saying by the Times of India.

“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. The unwanted pregnancy would… affect the mental health of the… woman,” it added.

It also ruled that an adult woman had an unimpeachable right to give birth or terminate a pregnancy.



By – Pratibha Elin Lakra



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