The Court said, "A woman whether married or not, it's her choice to have a baby or not" : An Important Judgement on MTP Act.

Important Judgment on MTP Act..

The Court said, "why always women should suffer ?.. "

"A woman may be married or living in live-in-relationship, the right to control their own body and fertility and motherhood choices should be left to the women alone. "

"A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman."

The Bombay High Court in its recent judgment delivered in "Suo Moto" PIL (bearing no.1/2016) (Coram -SMT. V.K. TAHILRAMANI & MRS. MRIDULA BHATKAR, JJ ) has paved way to right of women regarding Abortion or MTP, irrespective of their marital status... 

Facts in nutshell :

1. It all began when an under-trial prisoner in Byculla prison namely Shahana gave a requisition for obtaining permission to terminate her pregnancy. The requisition given by Shahana was made  part of this PIL.

2. Shahana represented that she already has a five months old baby and the baby was suffering from convulsion / epilepsy, hernia, loose motion as well as fever. Sahana's health was also not up to the mark and in such situation, she wanted to terminate her pregnancy. 

3. The hon. Court after due enquiry, which was made by the ld. Sessions judge at the instance of High Court, allowed Shahana to terminate her pregnancy and necessary directions were issued forthwith to all the concerned officers and Medical Officers.

4. The Court also has given various directions in order to deal with health issues of women prisoners and especially pregnant women prisoners, in Para-25 of the judgment.

5. As per current MTP Act, pregnancy can be terminated   upto 20 weeks and not after that. As per the Law, if the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or there is a substantial health risk to the child to be borne, then MTP can be done, with the prior opinion of a registered Medical Practitioner. 

6. If the Pregnancy is caused by Rape or due to  failure of any device or method used for family planning, it's considered as grave injury to the mental health of the pregnant woman. Here Court said the benefit of explanation of failure of family planning methods is required to be extended to the woman living in live-in-relationship 

7. In case of a pregnant woman who is less than 18 years of age or is mentally ill, written consent of her guardian for MTP is must.

The Apex Court in 1-2 cases have permitted MTP @ 22 weeks in case of Rape victims. However Medical Experts say that many of the anomalies are likely to be found in 22 week scan and if so, then why the parents should force to have a baby with so much of deformities ? This aspect is also required to be considered for amending MTP Act.

The Court further observed...

"A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy. To be pregnant is a natural phenomenon for which woman and man both are responsible. Wanted pregnancy is shared equally, however, when it is an accident or unwanted, then the man may not be there to share the  burden but it may only be the woman on whom the burden falls."

"If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health."

This is indeed an important and pathbreaking decision of Bombay High Court.

Link for Judgment

https://indiankanoon.org/doc/138003226/

thanks and regards

Adv. Rohit Erande

Pune.©