The Bombay HC recently granted liberty to a victim of domestic violence to terminate her 23-week-old pregnancy after it was informed that the woman had initiated divorce proceedings against the husband who refused to share the burden of raising the child.
The petitioner had sought direction for medical termination of her pregnancy on the ground that the continued domestic violence compounded by the pregnancy was having an impact on her mental health. The Bench of Justices Ujjal Bhuyan and Madhav J Jamdar held that "declining permission to the petitioner will tantamount to compelling her to continue with her pregnancy which in the circumstances will not only become extremely burdensome and oppressive on her but has the potential to cause grave injury to her mental health".
In doing so, the Court held that 'mental health' is more than just the absence of mental disorders or illness and it is the effect of pregnancy on 'mental health' of the woman that needs to be taken into account under Section 3(2)(b)(i) of the Medical Termination of Pregnancy Act and not 'mental illness' while considering whether to allow termination of pregnancy older than 20 weeks.
"Mental health is more than just the absence of mental disorders or illness. Mental health is a state of well being in which an individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and is able to contribute to his or her community. When we say that a person is in good mental health it would mean that he is mentally equipoised or is at a mental equilibrium. Thus, from the above analysis we can safely say that the expression ‘mental health’ is a wider concept encompassing within its fold the expression ‘mental illness’," the judgment said.
Advocate Aditi Saxena appearing for the petitioner, submitted that the petitioner was subjected to domestic violence by her husband.
The petitioner had also filed complaints before the competent Magistrate and she was also in the process of filing petition for dissolution of marriage by decree of divorce.
Saxena submitted that in the event the child is born, the petitioner would not receive financial and emotional support of her husband without which it would be difficult for her to raise the child as she does not have any source of income.
A medical board from JJ Hospital, which was constituted to examine her mental capacity to proceed with the pregnancy, submitted in its report that "petitioner has suffered mental distress due to marital discord".
They however opined that the "it is advisable to continue with the pregnancy" further clarifying that "it is beyond their authority to opine on any other cause apart from medical cause with regard to termination of pregnancy".
After careful perusal of the opinion of the Board, the Court examined the relevant provision of the Act - Section 3(2)(b)(i).
Section 3(2)(b)(i) which was amended earlier this year, provides that pregnancies between 20 and 24 weeks can be terminated if two registered medical practitioners form an opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health.
The High Court noted that the word used in the provision is 'mental health' and not 'mental illness'.
In that context we may say that the Legislature has consciously used the expression ‘mental health’ in section 3(2)(b)(i) in contradistinction to the expression ‘mental illness’ or ‘mentally ill person.though the expression ‘mental illness’ is defined in the Act, in section 3(2)(b)(i) the legislature has not used the words ‘mental illness’ but has used the expression ‘mental health’, the Court noted.
Hence, what is required to be seen or examined is whether continuance of the pregnancy would lead to grave injury to the mental health of the pregnant woman and while determining the same, the pregnant woman’s actual or reasonable foreseeable environment is required to be taken note of, the Court said.
"We have before us a married pregnant woman who says that she is suffering from domestic violence repeatedly. She has filed police complaint complaining against violence meted out to her by her husband, besides lodging complaint before the competent magistrate under the provisions of the Protection of Women from Domestic Violence Act, 2005. The husband has indicated that he would not share the burden of raising the child rather we have been informed at the Bar that petitioner is taking steps for dissolution of her marriage by a decree of divorce. Besides she has no income of her own," the Court noted the condition of the woman.