Reproductive Autonomy Includes the Right to Abort Without Spousal Consent: P&H High Court

Punjab and Haryana High Court allowed a 32-year-old woman to terminate her 18-week pregnancy without requiring her husband’s consent. Justice Kuldeep Tiwari emphasized that under the Medical Termination of Pregnancy Act, 1971 (as amended in 2021), marital consent is not mandatory for termination if the woman herself consents. The Court acknowledged that the petitioner’s separation from her husband due to domestic violence and financial instability constituted a material change in her marital status, making her eligible for termination under the law.

"Change of Marital Status Extends Beyond Widowhood and Divorce" – Rule 3(B)(c) Interpreted Broadly

The Court gave a purposive interpretation to Rule 3(B)(c) of the Medical Termination of Pregnancy Rules, 2003, holding that the phrase “change of marital status” includes women who are separated from their partners, even if they are not legally divorced. The Court noted that restricting the interpretation to only “widowhood or divorce” would defeat the purpose of the law, which is to protect women’s physical and mental health.

The petitioner, Aarti Arora, approached the Court seeking permission for medical termination of her pregnancy, which had reached 18 weeks and 5 days. The petitioner alleged that she was a victim of domestic violence and marital discord. After separating from her husband, she cited emotional trauma and financial instability as reasons for her inability to continue the pregnancy.

The petitioner’s marriage had been short-lived, marred by cruelty from her husband and in-laws, including covert attempts to record private moments. The petitioner moved back to her parental home and lodged a police complaint regarding the abuse. She experienced bleeding due to the mental and physical stress, requiring hospitalization. Medical reports confirmed that continuing the pregnancy posed risks to her mental and physical health.

The petitioner approached the Court under Article 226 of the Constitution, arguing that her autonomy over her body and reproductive choices, protected under Article 21, entitled her to terminate the pregnancy without requiring her husband’s consent.

The Court unequivocally held that under Section 3(4)(b) of the Medical Termination of Pregnancy Act, 1971, consent of the pregnant woman is sufficient for termination, and no spousal consent is required.

“The consent of the pregnant woman is paramount. The law recognizes her autonomy over her body and reproductive decisions, which are protected under Article 21 of the Constitution,” the Court observed.

The petitioner argued that although she was not divorced, her separation from her husband due to domestic violence should qualify as a “change of marital status” under Rule 3(B)(c). The Court relied on the Supreme Court’s decisions in X v. Principal Secretary, Health and Family Welfare Department (2022) and K.S. Puttaswamy v. Union of India (2017), which underscored that statutory provisions regarding termination of pregnancy should be interpreted broadly to promote reproductive autonomy.

“The words ‘widowhood and divorce’ in Rule 3(B)(c) are illustrative, not exhaustive. A woman separated from her husband due to domestic violence or abandonment also undergoes a material change in her circumstances,” the Court noted.

The Court highlighted that the petitioner’s right to terminate her pregnancy flows from her fundamental right to privacy, dignity, and bodily autonomy under Article 21 of the Constitution. Citing the landmark judgment in K.S. Puttaswamy v. Union of India (2017), the Court recognized reproductive choices as intrinsic to personal liberty.

“Forcing a woman to continue an unwanted pregnancy violates her dignity and autonomy, placing an undue burden on her physical, emotional, and financial well-being,” the Court stated.

Pursuant to the Court’s earlier order, a Medical Board evaluated the petitioner and confirmed that her pregnancy was at 18 weeks and 3 days as of January 11, 2025. The Board opined that the pregnancy could be safely terminated within the statutory limit of 20 weeks and found no psychopathology in the petitioner.

The High Court allowed the writ petition, permitting the petitioner to terminate her pregnancy. The Court directed the petitioner to approach the Chief Medical Officer (CMO) within three days, who would ensure compliance with the Medical Termination of Pregnancy Act and Rules.

“The petitioner is directed to approach the Chief Medical Officer concerned within three days from today, whereupon expeditious measures for medically terminating the pregnancy shall be taken,” the Court ordered.

Date of Decision: January 13, 2025