By Sharanya Gopinathan

Back in June, while delivering a judgment on whether a 24-year-old woman could abort her 24-week-old foetus with grave cardiac complications, the Supreme Court orally observed that “a woman has a sacrosanct right to her bodily integrity and it’s her choice”.  Back then, we wondered if they were just saying it (since a judge’s oral remarks delivered while giving a judgment do not count as law or as part of the judgment) and we were asking whether we’d see them really walk the talk.

Today, we actually are seeing more encouraging reports that point in this direction. The SC just dismissed a civil appeal that sought to “recognise husband’s consent to terminate a pregnancy”. The judgment arose from a case where a woman who was separated from her husband successfully terminated her pregnancy without her husband’s consent.

By upholding the judgment of Punjab and Haryana HC, the SC has basically solidified that a woman does not need her husband’s permission or consent to abort a foetus or terminate a pregnancy. But while this HC judgment has been upheld and the civil appeal dismissed, it’s still interesting to note the rationale the judges used to get to the worthy conclusion in the first place.

In its original judgment that’s just been upheld by the SC, the Punjab and Haryana HC found that the Medical Termination of Pregnancy Act does not ask for a husband’s (I think they mean biological father of the child, by the way, when they keep saying “husband”) consent in any way for an abortion. J Chauhan of the Punjab and Haryana HC also noted that in this case, the wife was aware of her “conjugal duties” towards her husband, and had sexual relations with him because of this awareness, but this doesn’t mean she consented to bearing a child.

It’s still unclear how J Chauhan knew their sexual encounter was a call of conjugal “duty”, because the reports we can see only say “during the pendency of the application [for maintenance], with the efforts of the Lok Adalat, she agreed to accompany the husband. During this period, the wife conceived, although the differences between her and husband persisted.”

More importantly, the whole idea of “conjugal duties” is really unsettling. In India, the concept comes from Section 19 of the Hindu Marriage Act and Section 22 of the supposedly more liberal Special Marriage Act. Such a provision gives spouses the legal option to approach the courts for the “restitution of conjugal rights” if one party “withdraws from the society of the other”. This is essentially a tool (mostly) men can use to regain physical access to their wives’ and their right to have “conjugal relations” with them. They can even be granted a divorce on the grounds of “mental cruelty” if she refuses for an extended time!

So perhaps ideally, J Chauhan needn’t have referenced the wife’s “recognition” of conjugal duties here without some introspection into what that really implies, but everything else he said was pretty much spot on: that “mere consent to conjugal rights does not mean consent to give birth to a child for her husband”, that “a woman is not a machine in which raw material is put and a finished product comes out”, that “she should be mentally prepared to conceive, continue the same and give birth to a child”, and also noted that “unwanted pregnancy would naturally affect the mental health of the pregnant woman.”

While this particular case threw up specificities that apply to married couples, the verbiage of the judgment seems to indicate that these are rights all women have, not just married women.