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Matrimonial Discord Can’t Be Considered As Reason for Permitting Termination of Pregnancy: Bombay HC

In a landmark judgment with far reaching consequences which shall always be a trendsetter in the time to come, the Bombay High Court in Neelam Choudhary v. 1. Union of India 2. State of Maharashtra 3. Ministry of Health and Family Welfare, through its Secretary in Writ Petition No. 6430 of 2018 delivered on June 19, 2018 while refusing a plea seeking termination of pregnancy held that matrimonial discord cannot be considered as a reason for permitting termination of pregnancy by invoking provisions of the Medical Termination of Pregnancy Act, 1971. Very rightly so! There can be no denying or disputing it!

Bluntly put, if matrimonial discord is accepted a valid reason for permitting termination of pregnancy then many women would resort to such specious plea and many children would be killed in the womb itself! How can this be permitted to happen under any circumstances? So Bombay High Court took the right, laudable and bold decision in not allowing termination of pregnancy on the ground of matrimonial discord!

To recapitulate, a married woman who was carrying pregnancy of more than 20 weeks, approached Bombay High Court contending that she does not intend to continue with the pregnancy as she intends to pursue her studies and apply for divorce. According to her, taking into account her health problem of epilepsy, it will not be advisable to continue with the pregnancy and also pursue her studies. In her plea, it was also stated that she had always cautioned her husband to have protective sex, but he did not pay any heed to the same.

Going forward, the petition also challenged stipulation of a ceiling of 20 weeks for an abortion to be done under Section 3 of the Act, on the ground that the said provision is ultra vires Article 14 and 21 of the Constitution of India. By way of present petition, the petitioner has sought following reliefs:

“a. For a writ of declaration or any other appropriate writ, order or direction in the nature of declaration, declaring section 3(2)(b) of The Medical Termination of Pregnancy Act, 1971 to the limited extent that it stipulates a ceiling of 20 weeks for an abortion to be done under Section 3, as ultra vires Article 14 and 21 of the Constitution of India;

b. For a writ of declaration or any other appropriate writ, order or direction in the nature of declaration, declaring that the case of the Petitioner is a fit case for exercising jurisdiction under Section 5 of the Medical Termination of Pregnancy Act, 1971.

c. For a writ of mandamus or any other writ, order, or direction in the nature of mandamus directing the Respondents to –
i constitute a Medical Committee for the examination of the Petitioner to assist this Hon’ble court in arriving at a decision on the plea of the Petitioner;
ii allow the Petitioner to undergo Medical Termination of Pregnancy at a medical facility of her choice.

d. For a writ of mandamus or any other writ, order, or direction in the nature of mandamus directing the Respondents to set up appropriate Medical Committees in each district in the State of Maharashtra to assess the pregnancy and offer MTP to the Petitioner and other women in need of the procedure beyond the prescribed 20 weeks limit.

e. For an order directing Respondent No. 1 to produce the report of MTP Committee which included the Health Secretary, Mr Naresh Dayal, former Director-General of the Indian Council of Medical Research and Dr. NK Ganguly as its members as stated in para 9 of the petition.”

A Division Bench of Justice Shantanu Kemkar and Justice Nitin W Sambre observed that none of the medical papers produced by her certifies that there is imminent danger to her life and she has no case that foetus will not be able to survive. Para 10 of this landmark judgment says explicitly that, “From the record, it is ex-facie clear that it is the case of the petitioner that she is carrying as on date pregnancy of about 23 weeks. The petitioner got married in 2012 and started residing with her husband and in-laws in 2016. The fact remains that she is educated up to 11th standard and pursuing further studies. It is also apparent that in 2016, an NC came to be registered for an offence under section 323, 504 of the Indian Penal Code in view of the complaint lodged by the petitioner against her husband and in-laws. It is apparently clear that the said NC complaint was not further prosecuted by the petitioner. Rather, in categorical terms she has admitted that, she has started residing with her husband. Out of the said relationship, she conceived a child and presently carrying pregnancy of 23 weeks.”

To be sure, the Bench further observes in para 11 that, “In the aforesaid factual background, if the claim of the petitioner is examined qua her prayer for issuance of directions for permission to terminate pregnancy, it is required to be noted that none of the medical papers which are placed on record certifies that there is imminent danger to life of the petitioner nor the condition of the foetus is incompatible with the extra uterine life. It is even not the case of the petitioner that the foetus would not be able to survive. The petitioner has also not demonstrated that continuation of pregnancy can gravely endanger the physical and mental health of the petitioner.” We thus see that petitioner’s plea is not supported by strong causes! This alone explains why her plea was rejected!

It would be pertinent to mention here that para 23 further goes on to say that, “Apart from above, though the petitioner has raised a plea of challenge to provisions of Section 3 of the Act being violative of Article 14 & 21 of the Constitution of India, the petitioner has hardly tried to justify her claim as no arguments are canvassed on the said issue.” Finally and most importantly, para 24 concludes this landmark judgment by saying that, “That being so, this Court has reached to a conclusion that there is no substance in the present petition and same deserves to be dismissed and accordingly dismissed.”

All said and done, this is an excellent and exemplary judgment which serves to send out a clear and categorical message that pregnancy cannot be permitted just on ground of matrimonial discord unless accompanied by other compelling grounds like threat to the life of the women or she is of unsound mind or has any physical or mental deformity! The Bench also declined to entertain the prayer challenging stipulation of 20 weeks ceiling observing that no arguments are canvassed on it. The Bench observed that the lady is seeking permission to terminate pregnancy merely by citing her matrimonial discord as the cause and pursuing her education further when the fact remains that she is carrying pregnancy out of her marital life and she is major and educated. Also, the petition was held as not maintainable as there is no medical advice to the petitioner to terminate her pregnancy of more than 20 weeks. Lastly but most importantly, all the causes that she cited for getting her pregnancy terminated did not appeal to the Bench which rejected her petition after citing the valid causes for doing so!

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