Bombay HC Expresses Concern Over Women's Struggles In Seeking Abortion; Calls for Mechanism To Ensure Partner's Accountability

The Bombay High Court, expressing deep concern over the challenges faced by women seeking to terminate unwanted pregnancies, has emphasized the need for a legal mechanism that would ensure the accountability and involvement of the male partners in such situations.

The Division Bench of Justice Ajay Gadkari and Justice Dr. Neela Gokhale highlighted the emotional and physical distress experienced by women who are often left to navigate the complexities of terminating an unwanted pregnancy alone, while their male partners remain uninvolved in the process.

The Court's concern came while hearing the case of a minor girl, a rape victim, who sought to terminate her 26-week pregnancy. The girl, a rape victim, was found to be pregnant after a routine medical check-up for fever. The pregnancy was the result of a relationship with a 22-year-old neighbour, with whom the girl had a consensual relationship and had expressed a desire to marry.

The minor approached the Court after her pregnancy had progressed beyond the 24-week limit, seeking permission to medically terminate it. The Court constituted a Medical Board to examine the case, which ultimately advised against abortion at such an advanced stage of pregnancy. Following the Medical Board's opinion, the girl and her mother agreed to continue with the pregnancy and proceed with delivery. The Court disposed of the minor's petition while simultaneously issuing its order regarding the need for a broader legal framework to support women in such situations.

In its September 5 order, the Court emphasized the need for a system that provides support and assistance to women who find themselves in such distressing circumstances.

The Bench remarked that it found the plight of young women, often compelled to move the courts for permission to terminate pregnancies, "disturbing." The Court lamented that these women, many of whom are victims of unwanted pregnancies resulting from casual or consensual relationships, are forced to carry the burden of seeking medical termination all by themselves.

"It is distressing to see the victim being left alone to fend for herself while understanding the nuances of the pregnancy itself, accepting the anatomical changes brought about by the pregnancy, and the dilemma of disclosing the fact to her parents and the partner leading to the pregnancy advancing beyond 24 weeks and thereby compelling her to approach the Court for permission to terminate the pregnancy, facing a Medical Board alone and finally undergoing the procedure of either termination or the delivery all by herself," the Bench noted in its order.  

The Court observed that, more often than not, the women suffer through these ordeals alone, while their male partners evade any form of responsibility or accountability. This, the Court stated, was a matter that needed serious consideration, as it raised concerns about gender justice and equality.

To address these concerns, the Division Bench announced its intention to determine a suitable mechanism that would ensure the involvement and accountability of male partners in situations where women are seeking medical termination of pregnancies. The Court also highlighted the need for legal and social support for women during what it described as "testing times," and underscored the importance of male participation in the process.

"We now intend to ensure that the victims are not left without support to face the challenges presented by such pregnancies. We thus deem it appropriate to appoint an amicus curiae to assist the Court in its endeavor to determine a suitable mechanism so as to facilitate involvement, accountability and participation of the partner in these testing times of the women," the Court noted.

The Court appointed Dr. Abhinav Chandrachud as amicus curiae to assist in this matter and requested him to submit his written suggestions on the issue within two weeks. "We now intend to ensure that, the victims are not left without support to face the challenges presented by such pregnancies. We thus deem it appropriate to appoint amicus curiae to assist the Court in its endeavor to determine a suitable mechanism so as to facilitate involvement, accountability and participation of the partner in these testing times of the women. We have thus requested Dr. Abhinav Chandrachud, learned counsel to assist us in regard to the aforesaid issue," the Court said. 

The Bench also expressed hope that the Government would take proactive steps to address the complexities faced by women who are compelled to seek judicial intervention for abortion. The Court emphasized the importance of devising an effective system to provide support to women who find themselves in such vulnerable situations, especially when pregnancies progress beyond the legal limit for termination.

"We are hopeful that the government would address this complexity by devising proactive measures and putting in place an effective mechanism to provide much-needed succour to the women victims," the Court said. The hearing was adjourned until September 20.

Cause Title: Miss “XYZ” v. State of Maharashtra [Neutral Citation No. 2024:BHC-AS:36041-DB]

Appearance:-

Petitioner: Advocate Snehal Chaudhari

Respondent: Advocate M. P. Thakur (AGP)

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