‘Remembering trauma’, Punjab and Haryana High Court allows abortion to a married woman who was allegedly sexually abused by her husband

Observing that the child’s birth should be “a reminder of the trauma and anguish he had to go through”, the Punjab and Haryana High Court has allowed the termination of the pregnancy of a married woman who was allegedly sexually abused by her husband .

Justice Vinod S. Bhardwaj said, “It should also not be ignored that the pregnancy is claimed to be the result of an unwanted relationship into which she was forced. The plaintiff is even unwilling to continue the said relationship as is evident from the divorce petition filed by her in the Amritsar Family Court. When the child was born, it would not remind of happy memories, but of trauma and torment that it had to go through. As an unwanted child, the member is also likely to lead either a painful life or a life without dignity.”

The court also added that in each of these situations, both the mother and the child must suffer social stigma and imprisonment for the rest of their lives. “The same thing is not in the best interest of both the mother and the child; And since the plaintiff has already expressed her unwillingness to raise the child, this may not even help the cause of the unborn child, who will have to cope with life and will be subjected to abuse through no fault of his own.”

The court was hearing an application by a woman who sought directions under the Medical Termination of Pregnancy Act, 1971 (MTP Act) to terminate her pregnancy of more than 15 weeks.

The plaintiff alleged that her husband forcibly married her and committed sexual assault, resulting in her becoming pregnant. She had also filed a divorce petition which is pending in the family court.

The petitioner stated that she was not ready to give birth to the child. However, when she approached the doctors, they verbally refused to see the plaintiff without the court’s instructions.

According to the Medical Board report, the petitioner was entitled to MTP under the guidelines of the MTP Amendment Act 2021.

After hearing the submissions, the court relied on X v. Principal Secretary, Department of Health and Family Welfare, Government of NCT of Delhi and anotherr (2023) to underline: “Married women may also belong to the class of survivors of sexual assault or rape.” The ordinary meaning of the word “rape” is sexual intercourse with a person without that person’s consent or against that person’s will, regardless of whether such forced intercourse takes place within the framework of marriage.”

The judge also referred to the pleadings in the divorce case, which stated that the plaintiff was beaten mercilessly and her husband did not allow her to have contact with her family members.

The court also noted allegations that the husband had a forced marriage after allegedly kidnapping, beating and threatening to harm her family.

While allowing the abortion, Justice Bhardwaj opined: “Such decisions are hard, but life is not just about being able to breathe, but rather about being able to live with dignity. Where the denial of dignity and acceptance or recognition in society and the family becomes nothing more than a “guilt”, it worsens the child’s torment and leads to even greater injustice. Therefore, a trade-off must be made to examine overall well-being.”

“Whether it’s shaping a victim’s trauma or prolonging it through the delivery of the child who is only destined to become a victim. This reduces the number of choices and makes it seem wiser to allow abortion.” said the court.

Against this background, the court ordered: “The Civil Surgeon, Civil Hospital Amritsar is directed to take all appropriate and necessary steps to carry out medical termination of pregnancy of the plaintiff subject to compliance with all necessary conditions prescribed by law.”

Consequently, the petition was granted.

Sumit Puri, counsel for the petitioner.

Akshita Chauhan, DAG, Punjab.

Title: XXX v State of Punjab & Ors.

Click here to read/download the order