This article is written by – Abhishree Paradkar, Symbiosis Law School, Pune
Recently, a woman who alleged that she repeatedly suffered from domestic violence was granted liberty by the Bombay High Court to undergo medical termination of her pregnancy.
In the decision made by the court, it was noted that the petitioner had previously filed a police complaint against the domestic violence committed on her by her husband apart from lodging a complaint as per the provisions of the Protection of Women from Domestic Violence Act, 2005 before a competent magistrate.
The matter was decided by a bench composed of Justices Ujjal Bhuyan and Madhav J Jamdar, who noted that the husband was adamant to not share the burden of raising the child and the petitioner was also taking steps to dissolve their marriage by obtaining a decree of divorce. Furthermore, she also had no income of her own. The bench highlighted that in these circumstances if the petitioner was declined the permission and is compelled to continue with her pregnancy, then the circumstances of the same would be extremely oppressive and burdensome on her and would also have the potential of causing a grave injury to her mental health.
Arguments presented by the Parties
Arguments by the Petitioner
This case arose from a petition that was filed under Article 226 of the Constitution of India, where the petitioner sought permission for medically terminating her pregnancy on the ground that her pregnancy was having a detrimental effect on her mental health due to the continuance of domestic violence.
Advocate Aditi Saxena appeared on behalf of the petitioner and produced a medical report dated 13th June 2021 from medical boards and hospitals which also recorded the assault conducted on the petitioner by her husband which caused her trauma on her face as well as her abdomen. At that time itself, the petitioner had indicated her willingness to medically terminate her pregnancy which at that point of time was in the 17th week.
The advocate also referred to a medical report that was dated 19th June which also recorded the history of the petitioner being constantly subjected to assault by her husband as well as her willingness to terminate her pregnancy.
She also relied on the medical reports conducted on July 22 and the senior doctors had in their individual opinion recommended her to terminate the pregnancy as continuing the same would after childbirth result in jeopardizing the mental health of the petitioner.
Section (2)(b)(1) of the Medical Termination of Pregnancy Act, 1971 also states that a pregnancy may be terminated, if after continuing the same it would risk causing a grave injury to the physical or mental health of the pregnant woman.
Arguments by the Respondent
AGP Uma Palsuledesai also relied on the same report which showed that the petitioner had been suffering from mental distress due to her marital discord. It was also opined that the petitioner, presently, does not suffer from any mental illness and is of sound mind, and therefore, she does not have any mental incapacity for raising a child. The medical board that had provided the report also added that the distress caused to her due to her marital discord could be overcome by marital counseling.
The AGP also argued that the explanations provided to the said provision of the Act, show that the legislature’s wish was to include only those cases where it would cause a grave injury to the mental health and therefore, this provision must be construed strictly.
Advocate Poornima Avasthi who appeared for the Respondent supported these submissions made by the AGP and said that although the MTP Amendment Act, 2021 had been published in The Gazette of India the same has not yet been notified by the central government and therefore cannot be assumed to have come into force.
Observations made by the Court
In this case, the court held that Section (2)(b) defined a mentally ill person to mean any person who requires to be treated due to the reason of mental disorder which is other than that of mental retardation.
Furthermore, as per Subsection (3) which states that while determining whether continuing a pregnancy would involve such risk of health which is mentioned in subsection (2), an account should be taken of the actual or the foreseeable environment in which the pregnant woman resides. Therefore, the court acknowledged that while examining these environments the social and economic factors which the pregnant woman confronts presently or in her near future are extremely important and relevant considerations.
The bench noted that the World Health Organization has defined mental health to be a state of well-being in which each individual realizes their mental potential and can cope with the regular stresses of life can also work productively and fruitfully and at the same time make contributions to their community.
The court noted that rape is a form of extreme sexual violence against a woman. Domestic violence is also a type of violence that is committed on a woman although the degree of such violence may be less. If contraception failure that leads to pregnancy can be assumed to constitute a grave injury to the mental health of a pregnant woman, then a pregnant woman who also suffers from domestic violence should also be considered to face grave injury to her mental health if the pregnancy was to continue following the domestic violence in the foreseeable future.
Furthermore, as per the WHO definition of reproductive rights, it can be understood that reproductive rights include a woman’s decision concerning reproduction that is free of discrimination violence and coercion.
Accordingly, as per the above-mentioned considerations, the court allowed the pregnant woman to undergo a medical termination at Cooper hospital, Mumbai without losing any further time.
LiveLaw News Network. (2021, August 17). Extremely Burdensome, Can Cause Grave Injury To Mental Health: Bombay High Court Allows Domestic Violence Victim To Terminate Pregnancy.
Vidya. (2021, August 18). Citing mental health, marital rape, Bombay HC allows domestic violence victims to end a pregnancy.