Kerala HC order allowing woman estranged from husband to terminate pregnancy draws praise

Court holds that the drastic change in the matrimonial life of a pregnant woman is equivalent to the change of her marital status

The Kerala High Court building in Ernakulam. | Photo Credit: H. Vibhu

Just when the Supreme Court has allowed unmarried women to have their 24-week pregnancy terminated, legal experts have hailed a recent Kerala High Court verdict allowing a married woman, who is living separately but is not legally divorced, to terminate her pregnancy without the permission of her husband.

While allowing the petition by a 21-year-old woman, Justice V.G. Arun held that she cannot be denied permission for terminating her pregnancy on the premise that she is not divorced and her marital status has, therefore, not changed. The Medical Termination of Pregnancy (MTP) Act has included married women whose marital status has changed ((widowed or divorced) during the course of their pregnancy in the category of women eligible for termination of pregnancies up to 24 weeks.

‘No provision in Act’

The High Court held that “the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status.’ The word ‘divorce’ cannot in any manner qualify or restrict that right. The court also noted that the Medical Termination of Pregnancy Act does not contain any provision requiring a woman to obtain her husband’s permission for terminating the pregnancy. Supreme Court lawyer Kaleeswaram Raj said that the High Court order “upholds the woman’s autonomy and freedom. It reiterates a cardinal principle of constitutional morality that in a matrimony, wife is not the husband’s chattel”.

‘Ill treatment by husband’

In a recent judgment, the Supreme Court had permitted a woman to terminate her pregnancy from a consensual relationship. That was a radical pronouncement, as it travelled beyond the rigour of the Medical Termination of Pregnancy Rules. The High Court order showed “the grandeur of humanism in interpretive jurisprudence,” he added. High Court lawyer Mohammed Shah said that the order was indeed a timely intervention to protect the rights of a pregnant woman, who was “ill-treated by her husband and in-laws”.

He added that the court recognises that the drastic change in the matrimonial life of a pregnant woman is tantamount to a change of her marital status as contemplated under Section 3B (c) of the MTP Act. In fact, the matrimonial life of the petitioner had completely changed due to the ill-treatment meted out by her husband and mother-in-law. The court has harmoniously read the wording in Section 3B(c) of the MTP Act with the scheme and intent of the Act, he added.