Live-in-relationships & abortion – Bombay HC grants abortion right for live-in relationships

By: mattersindia,Sept.22, 2016, source: Times of India

(Note: Certain things are forbidden because they are self-evident and intrinsically evil, like murder or daylight robbery; certain other things are forbidden by consensus for the sake of public order, like driving on the left or right side of the road.

Relationships in marriage is selfevident, while live-in-relationships, very common in the west is only getting accepted slowly in India, though it is seriously objected to by orthodox religious groups. Similarly Abortion and the development of a fetus into a person are unsettled issues. Also live-in-relationships are on the rise in India. So public good and order have to be decided by reason and not by the particular beliefs, religious or otherwise, of individuals or groups. So the Bombay High court has to be commented for puting both married partners and live-in-pairs on the same plane. james kottoor, editor)

MUMBAI: The Bombay high court has extended to live-in relationships a pro-choice right which only married women have enjoyed so far in law.

The HC held that a provision under the Medical Termination of Pregnancy Act, which currently doesn’t apply to live-in relationships, should be understood to be applicable also to couples who live in the nature of a marriage. A 45-year-old law that governs and grants women the right to abort spelled out how a married woman, who may have conceived by accident despite using birth control devices, could be permitted to terminate such pregnancy till 20 weeks, if unwanted, on the ground that its continuation would cause her mental trauma.

Since the law specified “married woman”, the HC while dealing with the rights of women in prison to medical termination, said law in today’s scenario of live-in relations would extend to even such women, who though not married, live in with their partner. The judgment, salutary to women who have not tied the knot but live with a man in a relationship akin to marriage, recognised the extent to which such relationships resonate and are rising in society and the need for protective laws.

The law says an unwanted pregnancy caused by failure of a birth control device in a marriage can be ended, but only till the foetus is 20 weeks old. The HC was deciding a suo motu PIL triggered by a case of a woman inmate in Mumbai who wished to terminate her second pregnancy while in custody. The PIL saw a bench of Justices V K Tahilramani and Mridula Bhatkar delving into the essence of the law that legalises abortion in India — the Medical Termination of Pregnancy Act. Section 3(2)(b)(i) of the Act allows termination of pregnancy if there is risk to the life of the pregnant woman. The judges observed that “besides physical injury, the law widened the scope of termination of pregnancy by including ‘injury’ to mental health of the woman”.

The law provides two ‘explanations’ of what constitutes such injury. While the first points to a rape survivor and the anguish a resultant pregnancy causes, ‘Explanation 2’ under the Act lists a pregnancy that is accidental, caused by failure of a birth control device. “Such a pregnancy, if unwanted, may be presumed to constitute grave injury to mental health of the pregnant woman,” the law states.

“Explanation 2 should be read to mean any couple living together like a married couple,” the court directed. “A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy. Wanted pregnancy is shared equally, however, when it is an accident, then the man may not be there to share the burden. Under such circumstances, a question arises why should only a woman suffer,” the HC asked.

A doctor, while advising an MTP, must consider the future prospects such unwanted pregnancy holds for a woman, the judgment said. The judges observed that there were reasons why a pregnancy is sought to be ended. “There are social, financial and other aspects attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. The right to control their own body and fertility and motherhood choices should be left to women alone.”