Extremely Burdensome, Can Cause Grave Injury To Mental Health: Bombay High Court Allows Domestic Violence Victim To Terminate Pregnancy.

This article is written by Eugenia Enyonam Datsomor

Introduction

An individual’s mental health includes his or her emotional, psychological, and social well-being. It affects how we think, feel, and act and helps determine how we deal with stress, relate to others, and make choices[i].

Domestic violence refers to abuse in a domestic setting or homes such as marriage or cohabitation. Thus, it is committed by someone in the victim’s domestic circle. This includes partners, ex-partners, immediate family members, other relatives, and family friends. It can be in the form of physical, sexual, or psychological abuse.

A woman was recently granted permission under the Bombay High Court to undergo a legal termination of her pregnancy after it was discovered that she was continually abused by her husband. The Court in its decision noted that the woman had filed a complaint to the police on account of her abuse alongside lodginga complaint towards a competent magistrate under the Protection of Women from Domestic Violence Act, 2005[ii]

Per the court

It was further noted by Justices Ujjal Bhuyan & Madhav J Jamdar that, the woman (petitioner) was taking steps to dissolve the marriage by divorce while the husband had made it clear that he would not share the burden of raising and caring for the child. The petitioner had no money of her own. It was held by the bench that due to the circumstances at hand, the continuance of the petitioner’s pregnancy would not only become burdensome and oppressive on her but could also cause a probable detriment to her mental health.

The case before the court involved a petition presented under article 226 of the Indian Constitution seeking consent for medical termination of pregnancy because the pregnancy was adversely affecting the mental health of the petitioner on account of repeated acts of violence and abuse meted out to her by her husband. Advocate Aditi Saxena, appearing on the side of the petitioner relied on a medical report dated June 13^th, 2021 which recorded assault dealt by her husband, causing trauma to her face and abdomen. At that time also, the petitioner indicated her willingness to undergo termination of her pregnancy which was by then in its seventh week.

The advocate again relied on a medical report dated June 19^th, 2021 of the same institution as the previous which also recorded the history of the plaintiff being subjected to numerous assaults by her husband as well as her clear indication to undergo medical termination of her pregnancy. Additionally, Advocate Saxena relied on the medical board’s report in which Dr. Bela Verma, professor and head of the department of pediatrics in her opinion had advised a medical termination of the pregnancy for the petitioner as its sustenance and subsequent childbirthwould result in jeopardy of petitioner’s mental health.

The Court’s attention was drawn to Article 3(2) (b) (I) of the Medical Termination of Pregnancy Act, 1971 which stated: “a pregnancy may be terminated if the continuance of the same would involve a risk of grave injury to the physical or mental health of the pregnant woman.”

The same report of the medical board constituted by the Court was relied on by one AGP Uma Palsuledesai where it was presented that, the petitioner suffered mental distress as a result of marital discord. It was further contended that, the petitioner at present did not suffer from any mental health issues and that she was fit to raise and care for the child as no evidence presented otherwise on account of mental health. The board again stated that marital discord between husband and petitioner at present could be settled with some marital counseling as recommended. The AGP further argued that section 3 of the MTP act was construed too strictly.

Advocate Purnima for respondent No. 2 concurred with the statements and submissions made by Advocate Palsuledesai. On a query, made by the court, she submitted that, though the MTP (Amendment) Act, 2021 had been published in the Indian gazette, it had not yet been notified to the central government and thus, had not come into force yet.

The Court’s Findings:

1. It was noted by the High Court that, the definition of a ‘mentally ill person’ as pointed out in section2 (b) illustrated a person who needed treatment because of a mental disorder as aside mental retardation.Furthermore, as noted by the Bench, it was stated in subsection (3) that, in determining whether the continuance of a pregnancy would include such high risk of damage to health as stated in subsection 2, may be taken of the pregnant woman’s immediate/foreseeable environment.
2. Hence, the Court of the view that, while examining the expression ‘mental health of a pregnant woman, it was also of necessity to take not of such woman’s present/immediate environment.
3. World Health Organization (WHO) defined ‘mental health as a state of well-being where each individual can cope with the daily stress of life as well as realize his/her potential of his mental capacities and can make contributions towards his community, the bench noted.
4. Taking note of the submission of the AGP on account of the strict interpretation of the provisions, the Court adverted to explanation 1 of section 3 of MTP Act as per which in the case where a pregnant woman was alleged to have been raped resulting in the consequent pregnancy, the anguish as caused by such shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
5. Further, in reliance on WHO’s reproductive right, it was found that reproductive rights also included the right of the woman to make decisions concerning reproduction free of discrimination and violence.

In light of the court, what was to be considered was whether the continuance of the pregnancy would result in a grave injury to the mental health of the pregnant woman and while deciding the same, the immediate and foreseeable environment of the pregnant woman was to be taken note of.The petitioner was allowed to undergo medical termination of her pregnancy in Dr. R. N>, Cooper Hospital without any further ado.

Writer’s opinion

Analyzing the situation carefully, it will be very reasonable to side with the decision of the court since keeping the baby can cause a lot of havoc to both the mother and baby. Due to this new case law, women who have similar issues in the future will be able to terminate the pregnancy knowing that they are understood by society and are not the first to go through such a situation.

This article is edited by Dhruv Kapoor, FIMT, affiliated to GGSIPU.

[i] www.mentalhealth.gov.com

[ii] www.livelaw.in