HER CHOICE VS HIS FATHERHOOD
In a landmark judgment, the supreme court of India ruled in October 2017 that an adult woman had an undeniable right to give birth to or abort her baby while keeping with the MTP act 1971.
The ruling came in response to a petition filed by a man seeking damages from his estranged wife and her family for undergoing an safe abortion procedure without his consent.
HIS STORY LEADING TO THE JUDGEMENT
“The couple got married in 1994 and had a son in 1995. Due to marital discord, the wife and son had been staying with the woman’s parents in Chandigarh since 1999. During the 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.
It was in November 2002, they started living together and in January 2003 the woman discovered that she was pregnant. As the relationship showed no signs of improvement, the woman wanted to terminate the ‘unwanted’ pregnancy.
The man objected her decision to abort and he refused to sign the hospital papers for abortion. With the help from her parents, she went ahead with the abortion under the Medical Termination of Pregnancy Act at a hospital in Chandigarh.
The man filed a civil suit against his wife, her parents, her brother and the doctors for recovery of Rs.30 lakh towards damages on account of mental pain, agony, and harassment.
He upheld the abortion as illegal and argued that termination of pregnancy without any medical need and without the consent of the unborn child’s father, was not legal.”
MEDICAL TERMINATION OF PREGNANCY ACT 1971
The various sections and their provisions as per the Medical Termination of Pregnancy Act 1971, relevant to the above supreme court judgment are as follows :
Section 3(2) states that a pregnancy may be terminated by a registered medical practitioner,-
where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,
where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are
Of opinion, formed in good faith, that,-
the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to physical or mental health ;
Explanation: Where any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Section 3(4b) states that no pregnancy shall be terminated except with the consent of the pregnant woman.
MATRIMONY – CONSENT TO MOTHERHOOD?
If a woman has consented to sexual intercourse with her husband, it cannot be deemed as consent to conceive and give birth to his child. The husband cannot compel his wife to bear his child in her womb or give birth. It is solely an adult woman’s choice whether she wants to continue a pregnancy.
A woman cannot be compared to a machine into which raw material is fed and a finished product is delivered. She has a mind of her own and the sacrosanct right to choose what happens to her body. Marriage does not bestow upon the man the right to force childbearing on his wife against her will.
CONJUGAL SEX – INVIOLABLE RIGHT
The woman is not bound by law to bear her husband’s child but denying matrimonial sex amounts to mental cruelty towards the husband. This means that under the Indian law there is not yet a provision to contest or penalize marital rape.
The petition for defining and criminalization of marital rape under the law, is pending with the Delhi high court as of today.
“UNWANTED” AND ANGUISHED
The anguish caused by an unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman as per the Medical Termination of Pregnancy Act 1971.
A woman needs to be mentally and emotionally prepared to bear a child and give birth to it. Any mental trauma to the woman as a result of the continuation of an unwanted pregnancy will amount to the violation of the rights of an adult woman.
A FATHERS AGONY
The law has addressed the issues of maternal anguish related to unwanted pregnancy, the rights of a father anguished at the loss of his child is often debated.
When the husband has no right to compel his wife to continue the pregnancy and give birth to his child, he has no right to demand compensation for the mental anguish caused to him by the abortion.
Now that there is clarity that the husband has no right to compensation for unconsented abortion by the wife, doubt arises if a husband has no right to contest in the court of law if the wife refuses to have a child with him.
UNILATERAL REFUSAL TO HAVE A CHILD
In yet another judgment passed by the honorable supreme court of India in the year 2007, it was ruled that unilateral refusal to have a child will amount to mental cruelty and constitute a ground for divorce.
Though the husband cannot claim compensation for wife’s refusal to have a child with him, it can surely become a strong ground for divorce.
In the earlier scenario, the termination of pregnancy was not what led to the relationship between the married couple to turn sour.
The couple’s relationship was already strained and a divorce petition was already pending in the court. Despite efforts, the relationship did not seem to improve.
Keeping in view the uncertain future of their marriage, the woman’s decision to abort the unwanted fetus was deemed appropriate by the Supreme Court bench.
HER BODY HER CHOICE
Despite liberal abortion law in India, ‘choice’ is still not considered a factor for permitting lawful abortion. It is important to prove that continuation of an undesired pregnancy will be of grave mental injury to the woman, so as to be eligible for legal termination of pregnancy.
Pregnancy to a woman is one of the most determinative aspects of her life. It brings about drastic changes not only in her body and mind but also her life. The woman’s responsibility extends to caring for another life taking form within her womb.
So it is important for the woman to have the freedom of deciding when she wants to bear the added responsibility of motherhood.
The honorable supreme court has upheld the high court’s statement that ‘an unwanted pregnancy would negatively impact the mental health of a woman and that she should be mentally prepared to give birth to a child’, but the Indian law does not provide for abortion by mere ‘choice’ of a woman.
FOR THE FATHER
The advocates of paternal rights in the abortion of a fetus have been quoted as saying“A woman can legally deprive a man of his right to become a parent or force him to become one against his will”. The statement seems to be holding good while examining the prevailing paternity and abortion laws in India.
In the past, the courts of India have also ruled in favor of a child receiving maintenance from the biological father when the child’s mother is not legally wedded wife of the former.
Such instances have given way to debates on a fathers’ rights in abortion. Suggestions have been raised that just as women are able to choose whether to have a child or not, men should also be able to choose whether to assume paternity or not.
Paternal rights activists have for ages argued that if after fertilization the woman is given superior rights with regard to pregnancy and parenthood, it means a deviation of the law from gender and social equality.
A concept which has taken form amidst debates on abortion rights is of financial abortion or paper abortion. It is the proposed ability of the biological father, before the birth of the child, to opt out of any rights, privileges, and obligations toward the child, including financial support.
It has received opposition by some who feel that it may become an excuse for men to shirk their responsibilities as a father.
Any law cannot be straight and static and is bound to change with passage of time, the modern culture and value system. The prevailing social condition and social thought process at any point in time may influence the legal system of a country.
Particularly with respect to matrimonial ties and parenting, no perfect formula can be arrived at. Every judgment towards a social reform is bound to face opposition as our society is diverse with respect to culture and beliefs.
Planned Parenthood is widely advocated all over the world, keeping the child’s interest as the topmost priority. Every child deserves a safe and secure childhood, free of emotional and legal battles between the parents.