Woman has a right to Abort-Says Supreme Court-news item Published in TOI dated 28-10-2017

Dhananjay Mahapatra| TNN | Updated: Oct 28, 2017, 03:05 IST
Representative photograph
NEW DELHI: The Supreme Court has dismissed a man’s petition seeking damages from his estranged wife for undergoing abortion without his consent, and ruled that an adult woman had an unimpeachable right to give birth or terminate pregnancy.

Terming the abortion, to which he had objected, “illegal”,

the husband had also demanded compensation from the woman’s parents and brother, and two doctors. The Punjab and Haryana high court had dismissed the husband’s plea saying termination of pregnancy was the sole prerogative of the woman .

An SC bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud upheld the decision of the HC, which had said, ” Keeping in view the strained relations between the husband and wife, the wife’s decision to terminate the unwanted fetus was right. The termination of pregnancy had not soured the relations between the two… So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting pregnancy terminated under the (Medical Termination of Pregnancy) Act.”

The CJI-headed bench further fortified the HC ruling by adding, “She is a mother and an adult who says she did not want the pregnancy. How can she or others be made liable for it? Even a mentally challenged woman has a right to terminate her pregnancy. How can parents and doctors be made liable?”

The couple got married in 1994 and had a son in 1995. Due to discord, the wife and son had been staying with her parents in Chandigarh since 1999. During pendency of the wife’s petition seeking maintenance, the Lok Adalat in Chandigarh had mediated, and persuaded the couple to live together in the husband’s house in Panipat.

In November 2002, they started living together and in January 2003 discovered that she was pregnant. As the relationship showed no signs of improvement, the woman wanted to terminate the “unwanted” pregnancy. The man objected. She contacted her parents, who took her to Chandigarh. The husband refused to sign the hospital papers for medical termination of pregnancy but the woman went ahead with the abortion at a Chandigarh hospital.

The man filed a civil suit against his wife, her parents and brothe r, and the doctors for recovery of Rs 30 lakh towards damages on account of mental pain, agony and harassment. He argued that the termination of pregnancy without any medical need and without the consent of the unborn child’s father was illegal under the MTP Act.
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The doctors appealed against this in the Punjab and Haryana HC, which dismiss ed the suit before the trial court. The HC said, “This is a most unfortunate case where a husband has brought privileged acts… of husband and wife in the court.”

” If the wife has consented to matrimonial sex… it does not mean that she has consented to conceive a child,” the HC said, “It is the free will of the wife to give birth to a child or not. The husband cannot compel her to conceive and give birth to his child…”

TOP COMMENT
what a 3rd class judgement and poking their noses in husband-wife relationship . . . . can that woman become pregnant by herself ? so, how can she abort by herself ?? as it is that woman has got DRAC… Read MoreAxa Aga

“The woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared… to give birth to a child. Unwanted pregnancy would… affect the mental health of the… woman.”

The HC had ordered the husband to pay a cost of Rs 25,000 to each respondent.
Supreme Court upholds woman’s right to abort
Dhananjay Mahapatra| TNN | Updated: Oct 28, 2017, 03:05 IST
Representative photograph
NEW DELHI: The Supreme Court has dismissed a man’s petition seeking damages from his estranged wife for undergoing abortion without his consent, and ruled that an adult woman had an unimpeachable right to give birth or terminate pregnancy.

Terming the abortion, to which he had objected, “illegal”, the husband had also demanded compensation from the woman’s parents and brother, and two doctors. The Punjab and Haryana high court had dismissed the husband’s plea saying termination of pregnancy was the sole prerogative of the woman .

An SC bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud upheld the decision of the HC, which had said, ” Keeping in view the strained relations between the husband and wife, the wife’s decision to terminate the unwanted fetus was right. The termination of pregnancy had not soured the relations between the two… So, keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting pregnancy terminated under the (Medical Termination of Pregnancy) Act.”

The CJI-headed bench further fortified the HC ruling by adding, “She is a mother and an adult who says she did not want the pregnancy. How can she or others be made liable for it? Even a mentally challenged woman has a right to terminate her pregnancy. How can parents and doctors be made liable?”

The couple got married in 1994 and had a son in 1995. Due to discord, the wife and son had been staying with her parents in Chandigarh since 1999. During pendency of the wife’s petition seeking maintenance, the Lok Adalat in Chandigarh had mediated, and persuaded the couple to live together in the husband’s house in Panipat.

In November 2002, they started living together and in January 2003 discovered that she was pregnant. As the relationship showed no signs of improvement, the woman wanted to terminate the “unwanted” pregnancy. The man objected. She contacted her parents, who took her to Chandigarh. The husband refused to sign the hospital papers for medical termination of pregnancy but the woman went ahead with the abortion at a Chandigarh hospital.

The man filed a civil suit against his wife, her parents and brothe r, and the doctors for recovery of Rs 30 lakh towards damages on account of mental pain, agony and harassment. He argued that the termination of pregnancy without any medical need and without the consent of the unborn child’s father was illegal under the MTP Act.
Recommended By Colombia

The doctors appealed against this in the Punjab and Haryana HC, which dismiss ed the suit before the trial court. The HC said, “This is a most unfortunate case where a husband has brought privileged acts… of husband and wife in the court.

” If the wife has consented to matrimonial sex… it does not mean that she has consented to conceive a child,” the HC said, “It is the free will of the wife to give birth to a child or not. The husband cannot compel her to conceive and give birth to his child…”

TOP COMMENT
what a 3rd class judgement and poking their noses in husband-wife relationship . . . . can that woman become pregnant by herself ? so, how can she abort by herself ?? as it is that woman has got DRAC… Read MoreAxa Aga

“The woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared… to give birth to a child. Unwanted pregnancy would… affect the mental health of the… woman.”

The HC had ordered the husband to pay a cost of Rs 25,000 to each respondent.

COMMENT:

Human rights[edit]

See also: Human rights

Since most existing legally binding international human rights instruments do not explicitly mention sexual and reproductive rights, a broad coalition of NGOs, civil servants, and experts working in international organizations have been promoting a reinterpretation of those instruments to link the realization of the already internationally recognized human rights with the realization of reproductive rights.[24] An example of this linkage is provided by the 1994 Cairo Programme of Action:

Reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant United Nations consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes the right of all to make decisions concerning reproduction free of discrimination, coercion and violence as expressed in human rights documents. In the exercise of this right, they should take into account the needs of their living and future children and their responsibilities towards the community.[25]

Similarly, Amnesty International has argued that the realisation of reproductive rights is linked with the realisation of a series of recognised human rights, including the right to health, the right to freedom from discrimination, the right to privacy, and the right not to be subjected to torture or ill-treatment.[3] However, not all states have accepted the inclusion of reproductive rights in the body of internationally recognized human rights. At the Cairo Conference, several states made formal reservations either to the concept of reproductive rights or to its specific content. Ecuador, for instance, stated that:

With regard to the Programme of Action of the Cairo International Conference on Population and Development and in accordance with the provisions of the Constitution and laws of Ecuador and the norms of international law, the delegation of Ecuador reaffirms, inter alia, the following principles embodied in its Constitution: the inviolability of life, the protection of children from the moment of conception, freedom of conscience and religion, the protection of the family as the fundamental unit of society, responsible paternity, the right of parents to bring up their children and the formulation of population and development plans by the Government in accordance with the principles of respect for sovereignty. Accordingly, the delegation of Ecuador enters a reservation with respect to all terms such as “regulation of fertility”, “interruption of pregnancy”, “reproductive health”, “reproductive rights” and “unwanted children”, which in one way or another, within the context of the Programme of Action, could involve abortion.[13]

Similar reservations were made by Argentina, Dominican Republic, El Salvador, Honduras, Malta, Nicaragua, Paraguay, Peru and the Holy See. Islamic Countries, such as Brunei, Djibouti, Iran, Jordan, Kuwait, Libya, Syria, United Arab Emirates, and Yemen made broad reservations against any element of the programme that could be interpreted as contrary to the Sharia. Guatemala even questioned whether the conference could legally proclaim new human rights.[26]

Women’s rights[edit]

See also: Women’s rights and Reproductive justice

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The United Nations Population Fund (UNFPA) and the World Health Organization (WHO) advocate for reproductive rights with a primary emphasis on women’s rights. In this respect the UN and WHO focus on a range of issues from access to family planningservices, sex education, menopause, and the reduction of obstetric fistula, to the relationship between reproductive health and economic status.

The reproductive rights of women are advanced in the context of the right to freedom from discrimination and the social and economic status of women. The group Development Alternatives with Women for a New Era (DAWN) explained the link in the following statement:

Control over reproduction is a basic need and a basic right for all women. Linked as it is to women’s health and social status, as well as the powerful social structures of religion, state control and administrative inertia, and private profit, it is from the perspective of poor women that this right can best be understood and affirmed. Women know that childbearing is a social, not a purely personal, phenomenon; nor do we deny that world population trends are likely to exert considerable pressure on resources and institutions by the end of this century. But our bodies have become a pawn in the struggles among states, religions, male heads of households, and private corporations. Programs that do not take the interests of women into account are unlikely to succeed…[4]

Women’s reproductive rights have long retained key issue status in the debate on overpopulation.[9]

“The only ray of hope I can see – and it’s not much – is that wherever women are put in control of their lives, both politically and socially; where medical facilities allow them to deal with birth control and where their husbands allow them to make those decisions, birth rate falls. Women don’t want to have 12 kids of whom nine will die.” David Attenborough[27]

Attempts have been made to analyse the socioeconomic conditions that affect the realisation of a woman’s reproductive rights. The term reproductive justice has been used to describe these broader social and economic issues. Proponents of reproductive justice argue that while the right to legalized abortion[28] and contraception applies to everyone, these choices are only meaningful to those with resources, and that there is a growing gap between access and affordability.[citation needed.
Reference: Wike pedia

Reference: Wikipedia

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