Defeating Individual Choice: Linking Abortion & Marital Consent.

On Nov. 7, a Supreme Court Bench comprising Justices Thakker & D.K. Jain held that an abortion by a woman without her husband’s consent will amount to mental cruelty and a ground for divorce. To quote the Hon’ble Bench,

Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render life miserable for the spouse.

Cruelty is laid down as a ground for divorce in the Hindu Marriages Act, 1956. That the SC has gone beyond the realm of physical abuse to recognize recurring instances of mental cruelty in marriages is welcome news indeed. Nonetheless, one may observe with deference that linking abortion (without the husband’s prior consent) to mental cruelty is perhaps not in consonance with the female partner’s freedom of choice and decision-making.

At the onset, it is pertinent to note that there is no constitutionally guaranteed right to abortion in India. The limited ambit of this right stems from the Medical Termination of Pregnancy Act, 1971, where S. 3(2) provides for the ‘termination of pregnancy’ in certain cases. The statutory right is extremely constricted, and the abortion cannot be by mere demand but by concurrence from medical practitioners in good faith. The provision itself is an expression of society’s widespread belief that women are incapable of making judicious and independent choices. The conditions laid down in the Act permitting such termination would seem more technical and patronizing in intent, and certainly not reflective of a rights-oriented paradigm.

Arguments before Courts on the matter are invariably convoluted with the right to life of the unborn foetus. In a head-on collision between the rights to life and abortion, there are no prizes for guessing what the activist judiciary will favour. Having said that, it is also important to observe that the Supreme Court, in abortion cases before it, has held the condition, opinion and consent of women in high regard. However, those were all instances of women refusing to abort; not of active affirmation to do the same (See cases like Dr. Nisha Malviya and Anr. Vs. State of M.P, Shri Bhagwan Katariya and others Vs. State of M.P. 2000.)

In an already tapered-down scenario, it is humbly stated that the SC through its recent judgment in Suman Kapur v. Sudhir Kapur(Nov. 7, 2008) has further exacerbated the submissive condition on women in our society. The Hon’ble Court has virtually stated that the husband’s consent is mandatory before a foetal abortion is made: by linking the absence of consent to mental cruelty, the Apex Court has given the already-dominant male partner a trump-card of sorts to enforce his preferences on a matter critically relevant to women. Perhaps the Hon’ble Court may have been guided by the pressing need to endorse consensual decisions in the family. However, the judgment cannot be read in isolation from prevalent societal circumstances, and one can regretfully point out the existence of anything but a level-playing field.

It is perhaps fitting to conclude with the words of Dr. Betty Friedman in her Keynote speech during the 1st National Conference for repeal of Abortion Laws held in Chicago (1969):

There is no freedom, no equality, no full human dignity and personhood possible for women until they assert and demand control over their own bodies and reproductive process…………The right to have an abortion is a matter of individual conscience and conscious choice for the women concerned.

Four years later, the U.S Supreme Court responded bravely and echoed her sentiment in Roe v. Wade. Is it not time we embraced the same reality?