Right of a Wife to Abort a Child without Consent of the Husband

Introduction:

Abortion is the termination of pregnancy by the removal or expulsion of a fetus from the uterus before it has reached the stage of viability.

Abortion has been one of the most controversial matters in biomedical ethics. It is a subject that has not been controversial at both the national and international levels. An issue that has become a subject of debate and judicial adjudication is a woman’s right to end her pregnancy. Many people hold divergent views related to this matter.

Is abortion a Fundamental Right?

The right to personal liberty is the most precious, sacrosanct, and inalienable of all fundamental rights of citizens. Many people hold different views from the point of view of legality. The question arises whether it falls under the Constitution or in I.P.C. Indian Penal Code, 1860. Sec-312 of IPC, 1860, deals with unlawful termination of pregnancy. Whereas framers mention the word ‘‘miscarriage” instead of abortion. Abortion is stated as Causing Miscarriage, which is considered a punitive offense. 

Article 21 of the Indian Constitution ensures that no person shall be deprived of his life and personal liberty except according to the procedure established by law. In the case of abortion, the woman equally enjoys the right to life and makes free choices about what she wants with her body, as any other citizen of India.

Thus, the Right to life includes the right to enjoy life. Therefore, it implies that it included the right to procreation and the right to have control over reproductive organs is the broader concept of the right to life. Any forced act on your body without your consent is an infringement of Article 21 of the Indian constitution. If any woman is married even, then she has solely decided to conceive or to abort her child. No one can force or decide that for you.  

In the case of Laxmi Mandal V. Deen Dayal Hari Nagar Hospital (2010)[1] the Delhi High Court

States that preventable maternal death represents a violation of Article 21 of the Indian Constitution. The High Court ordered The Delhi NCT to implement service guarantees in the National Rural Health Mission, including safe abortion service, to prevent maternal death.

Why a woman’s right to health is important?

A woman’s right to the highest standard of health is guaranteed by international law.

• According to the World Health Organization, health is not simply the absence of disease or infirmity but is determined by physical, mental, and social wellbeing. Health care is not a right guaranteed to all women. The issue of abortion presents major issues for women. Hundreds of thousands of women struggle to conceive each year and face the risk of unsafe abortion. Further, the Government has amended the medical termination of pregnancy act in order to protect women’s rights as well as health care.
• A major concern worldwide has been unsafe abortion’s effect on women’s health, as outlined in the 1994 United Nations’ International Conference on Population and Development (ICPD).
•  On the occasion of the 1995 Fourth World Conference on Women, the international community reaffirmed its commitment to introducing laws punishing women who had taken part in illegal abortions. A review of the consequences of unsafe abortion is also carried out by the government.
• When the ICPD was reviewed five years ago, officials approved a provision that recognized the need for a greater safety net and better access to abortion services.

Provision under Medical Termination of Pregnancy (Amendment) Bill, 2020

With the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971, abortion has been legal under various circumstances in India for the past 50 years. Several amendments to the MTP Act were passed in 2021 under the MTP Amendment Act 2021, including the proposal that unmarried women be allowed to seek safe abortion services because of contraceptive failure. After the Medical Termination Of Pregnancy Amendment Act 2021, abortions in India can be performed up to 24 weeks of pregnancy. 

The Medical Termination Pregnancy Act provides for certain circumstances in which a woman may terminate her pregnancy. It was meant to provide certain exceptions to the provision contained in the Indian Penal Code, 1872 which makes “causing a miscarriage” a punishable offense.

According to the MTP Act, a pregnancy can only be terminated when all the following conditions are met:

• The mental and physical health of the woman could be negatively affected by the pregnancy;
• In addition, there was a substantial risk the fetus might be born with severe physical or mental problems.

As the Supreme Court held in the Suchita Srivastava judgment of 2009, women have the right to make reproductive choices under Article 21 of the Constitution, and this right includes the ability to procreate, as well as the choice to abstain from procreation.

Method of abortion:

• Manual Vacuum Aspiration
• Electric Vacuum Aspiration
• Medical Methods of Abortion
• Dilation and Curettage

Abortion Rights in USA

The 14th amendment says nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In Roe V. Vale[2] the United States Supreme court held that Texa’s criminal abortion statute which criminalizes abortion except to save the life of a mother is violative of the due process clause of the Fourteen Amendment. 

Women have the right to:

1. Decide freely and responsibly whether she conceive or not.
2. Have the information and means to decide freely and responsibly the number of spacing and timing of their children.
3.  She has the right to decide freely and responsibly the number, spacing, and timing of their children.

Is abortion a ground for divorce?

In a said case Supreme Court said abortion without the knowledge of his husband leads to mental cruelty hence, it is a sufficient ground for divorce.  

In the plea of Sudhir Kapur that he was entitled to seek divorce under the Hindu Marriage Act, and his wife Suman Kapur has undergone three abortions without his consent. A matrimonial court granted a divorce based on mental cruelty.

Case Laws

1. Mahima Yadav v. NCT of Delhi and Ors[3]: This case was bought before the high court in which the petitioner’s pregnancy exceeds 24 weeks. The court said the medical termination of pregnancy beyond 24 weeks is allowed under the provisions of the new amendment law.
2. Akhila Kurain Akhila Ann Baby v. Union of India[4]: In this, a petitioner was a married couple and wanted to abort the fetus, they had stated that the pregnancy lasted for 35 weeks, and the fetus suffered from serious abnormalities in brain development. The court has observed that the petitioner was willing to take the risk, although the medical report presented by the medical board, it is indicated that there are possibilities of survival of the baby and simultaneously there are possibilities of excessive bleeding during delivery. Furthermore, the report indicated that the fetus has mental abnormalities, but nowhere in the report is it mentioned that the petitioner could abort the baby. The court then dismissed the request for the abortion of a 35-week fetus.
3. Dr. Mangla Dogra & Others V. Anil Kumar Malhotra[5]: dealing with the issue of whether a husband has a right to provide consent for abortion, the high court of Punjab and Haryana stated that “the MTP Act calls for consent from simply one character: the female present process a medical termination of pregnancy. A husband can’t force his spouse to continue a being pregnant”.

Conclusion

A woman’s ability to access safe and legal abortion is limited by law or practice in most parts of the world. Even when abortion is legal, women often have severely limited access to safe abortion services due to a lack of adequate regulatory, medical or political will. 

Very few countries are banning all abortions at the same time. In most countries and jurisdictions, abortion is permitted, at least to save a pregnant woman’s life, or if the pregnancy was the result of rape or incest.

Abortion is quite emotional difficulty and one that excites deeply held opinions. However, equitable access to secure abortion services is first and most important a human proper. In which abortion is secure and criminal, no person is compelled to have one. In which abortion is illegal and hazardous, ladies are pressured to hold undesirable pregnancies to term or suffer severe health results or even demise. About thirteen percent of maternal deaths globally are because of hazardous abortion—between sixty-eight, 000 and 78,000 deaths annually.

Ladies’ corporations internationally have fought for the right to get entry to safe and prison abortion for decades, and an increasing number of international human rights regulation supports their claims. In reality, international human rights criminal contraptions and authoritative interpretations of those units compel the belief that girls have a right to decide independently in all matters associated with duplicate, together with the issue of abortion.

---

References:

[1] 2010 (172) DLT 9

[2] 410 U.S. 113 (1973)

[3] W.P.(C) 4117/2021

[4] WP(C).No.27842 OF 2020(E)

[5] (CIVIL) No.2941 OF 2017