The Kerala High Court has passed an order allowing a woman to undergo abortion noting that the Medical Termination of Pregnancy (MTP) Act does not require the woman to obtain her husband's permission for terminating the pregnancy. Justice VG Arun passed the order on Monday, September 26, while hearing a petition filed by a 21-year-old woman who sought permission to terminate her pregnancy, as her marriage failed to work out.
The court observed that the rules and provisions of the MTP Act called for liberal interpretation rather than a restrictive one, and it sought to recognise “the woman’s reproductive choice to either procreate or to abstain from procreating.” The court also said that “a woman's right to make reproductive choice is also a dimension of her personal liberty,” under Article 21 of the Constitution of India. Article 21 of the Constitution pertains to protection of life and personal liberty of the citizen.
Citing a Supreme Court order, Justice VG Arun held that there was no basis to deny an unmarried woman the right to medically terminate her pregnancy when the same choice was available to the other categories of women. The court said that the petitioner could also be considered under the category, as she had contended that her marital status changed during the course of her pregnancy. The court also took note of the fact that the woman was from a weaker section of society and neither did she have the financial capacity to bring up the child on her own nor emotional support from her partner.
The court, observing that the drastic change in her married life was equivalent to a change of her marital status, said that the word 'divorce' cannot in any manner qualify or restrict her right to get an abortion. “The reason being that it is the woman who bears the stress and strain of the pregnancy and the delivery,” the court held. The court passed an interim order allowing the petitioner to get her pregnancy terminated at the Kottayam Medical College or any other government hospital. The court also directed the Superintendent of the hospital to take immediate measures to constitute a medical team for conducting the procedure and if the baby was alive at birth, the hospital was directed to provide the best medical treatment available. The state government has been directed to take responsibility for the child, if the woman was unwilling to do so.
The court also took into account the petitioner’s right to privacy, referring to the judgment in the matter of KS Puttaswamy and another Vs Union of India and others. In the case, the apex court had said that privacy enabled the individual to retain the autonomy of the body and mind. The court also referred to a Bombay HC case which said that forcing a woman to continue with a pregnancy “represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”
The petitioner had sought the right to terminate her pregnancy, after her marriage fell apart and she did not find any support from her marital home, after she found out she was pregnant. The woman returned to her parents’ home in August 2022. With the lack of emotional and psychological support making the stress and strain of the pregnancy unbearable, the woman decided to get an abortion and approached the Family Planning Clinic at the Kottayam Medical College. However, the doctors refused to terminate the pregnancy citing that there were no legal documents to prove separation or divorce between the couple. Even after she filed a police complaint, the doctors refused to carry out an abortion, following which the woman submitted a plea at the High Court seeking directions to the state and union governments to allow her undergo an abortion.
The case was taken up for hearing on September 15, when the court directed the constitution of a Medical Board to examine the woman. The board submitted its opinion stating that continuation of pregnancy was likely to have a negative impact on the petitioner’s mental health and recommended the medical termination of pregnancy.