Woman can abort pregnancy in case of marital discord, it's not an offence: HC

The Delhi High Court has held that forcing a woman to continue with a pregnancy violates her bodily integrity and worsens her mental trauma. The court discharged an estranged wife from a criminal case filed by her husband for medically terminating her 14-week pregnancy. The court said the woman did not commit an offence under Section 312 of the Indian Penal Code and reaffirmed a woman’s right to decide on abortion in cases of marital discord, a PTI report stated.

Court upholds woman’s autonomy

Justice Neena Bansal Krishna said freedom of choice is part of personal autonomy and control over reproduction is a basic right of all women. The court underlined that a woman’s decision to seek abortion cannot be criminalised when it is linked to her mental and physical health.

No husband’s consent required under MTP Act

The court noted that the Medical Termination of Pregnancy Act does not require a pregnant woman to take her husband’s permission for terminating a pregnancy. It said the central concern of the law is the risk of “grave injury” to a woman’s physical and mental health.


“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,” said the court in the judgment passed on January 6.

No offence under IPC Section 312

The court referred to Supreme Court judgments that recognise a woman’s autonomy to seek abortion during marital discord. It said these rulings, along with provisions of the MTP Act, make it clear that no offence was committed.

“When the apex court, in its judgments, has recognised the autonomy of a woman to seek abortion in the situation of a marital discord which can impact her mental health, and also the provision of Section 3 MTP Act and the Rules framed therein, it cannot be said that an offence under Section 312 IPC was committed by the petitioner,” the court observed.

Background of the case

The woman had challenged a sessions court order that upheld her summoning before a magistrate for the offence under Section 312 IPC. She argued that her reproductive autonomy under Article 21 of the Constitution was criminalised and that her right to privacy, bodily integrity and decisional liberty was ignored.

The husband argued that the couple was living together on the date of abortion and there was no marital discord. He said the MTP Act should not apply.

Court rejects husband’s argument

The High Court rejected this argument and said marital discord cannot be narrowly defined as a situation that arises only after separation or legal proceedings. It noted that the woman’s OPD card showed she was under stress due to marriage and had already decided to separate.

Court on social reality faced by women

The court referred to the unequal burden faced by women in cases of unwanted pregnancy. It said men may not always share the responsibility, leaving women to manage the consequences alone.

“It is only a woman who suffers. Such a pregnancy brings with it insurmountable difficulties, leading to grave mental trauma... There are social, financial, and other aspects immediately attached to the pregnancy of a woman, and if the pregnancy is unwarranted, it can have serious repercussions. It undoubtedly affects the mental health,” the judge stated.

Interpretation of MTP rules

The court said MTP Rule 3-B(c), which allows abortion in cases of change in marital status like divorce or widowhood, should apply more broadly. It said the benefit must extend to all women who face a “change of material circumstances”.

“The harsh reality of this misogynistic world cannot be ignored while considering the mental trauma of a woman facing marital discord, which gets compounded many times if she is pregnant.

“Not only is she left to fend for herself, but she is also almost always left to shoulder the responsibility of bringing up a child single-handedly, with no support forthcoming from any source. It is only a woman who suffers. Such pregnancy brings with it insurmountable difficulties, leading to grave mental trauma”, said the court.

The High Court said the woman’s stress and sense of marital discord were enough to show a likely impact on her mental health. It held that she was legally competent to seek termination of her pregnancy under the law.

(Source: PTI)