THE ‘LIFE CHANGING’ JUDGMENT

November 21, 2022by admin0

In the latest ground breaking judgment by the Apex Court bench comprising of Hon’ble Justice Mr. D.Y Chandrachud, Hon’ble Justice Mr. A.S. Bopanna, and Hon’ble Justice Mr. J.B. Pardiwala whereby married women are also accommodated within the meaning of Section 3(2)(b) of Medical Termination of Pregnancy Act (MTP Act).

Provisions of the MTP Act 

Provisions of Section 4 & 3(2) which relate to the length of the pregnancy and the requirement for the opinion of at least two RMPs for the MTP procedure, make RMPs accountable for the said procedure and can have legal consequences for them. These formal requisites make RMPs nervous from the anticipation of legal consequences and the entire incidence becomes a clash of interests‘ patient versus RMPs’. This clash further manifests itself in right away asking for presence or NOC from the husband (father of the unborn child), added ridicule, bad advice, etc. 

Effect of clash of interest

Women who are willing to opt for Medical Termination of Pregnancy or MTP were not just subjected to ridicule by society in general but were also not accommodated by Attending doctors. They go so far as stating a ‘married woman’ cannot have the final word in deciding what she can do with her own body.

‘…..tomorrow father of the child may sue us stating that we killed HIS child and we don’t want these complications……” 

This is one of the several common remarks faced by married women, seeking MTP procedures in addition to other down grading innuendos.

The approach of doctors was primarily based on the prerequisites laid down in Sections 4&3(2)(b) of the MTP Act.

The MTP Act, however, accommodates a victim of rape or an unmarried woman, but marital rape is a foreign concept for Indian society/legal system hence woman were left to suffer on their own and practically having no say in something related to her own body. 

THE DOMINO EFFECT- 

When MTP is not the sole issue to deal with

This inhumane and patriarchal mindset as well as narrow interpretation of law rendered several women, who are stuck in an abusive or unhealthy marriage, helpless on so many levels.

This unilateral functioning against woman had a humongous impacted on their mental, physical and financial health. The collective implications of absence of provision for marital rape, delay in divorce proceeding, unopposed bias against woman opting for remedies available under Domestic Violence Act from investigation agencies, sessions court to higher courts are devastating for the one going through it, on top of that if she does not have a say in bearing a child, which is product of physical/sexual abuse within marriage, that’s added layer of unnecessary stress.

The cumulative effect of provisions, procedural delays, societal bias against women, mental/physical harassments at workplaces and in general second grade citizen treatment towards woman is greater in magnitude then one can fathom.

Effect on professional life

While women face these biases when she decides to break free from such shackles, she also have to be ready to face the flake at workplace over this (as she must be financially independent otherwise her child born in unloving situations will born pauper or if she gets pauper while she is awaiting a judgment).

More leaves bring you in bad light with management, deductions in salaries, not being considered for promotion, keeping them out of “the secret inner circles” where major decisions are made and last but not the least termination from services.

The Judgment

Amidst these adverse scenarios Apex court took a very deep look at the domino effect of consequences rather than just dismissing it as not note worthy prima facie and gave a life altering judgment.

This judgment is not just a breath of fresh air for women in a cornered situation with pregnancy but also will help build a better new generation as no woman will be forced to bear a child just because her husband or a man impregnated her, it will give women a choice to make an informed judgment about child bearing based on her financial, mental, physical as well as societal situation.

This judgment is not just exhaustive in including each and every permutation & combination of situations women in India may face during initial days of pregnancy. It also sets medical practitioners free from burden of anticipation of legal consequences. This judgment makes sure women, irrespective of their marital status or age or financial state do not have to succumb to illegal/shady means for termination of pregnancy and without any prejudice gets required medical assistance from proper medical practitioner.

 

Chhavi Kalla

Senior Associates

Maheshwari and Co.

Delhi@mahshwariando.com

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