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Mere consent to conjugal rights does not mean consent to give birth to a child for her husband

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THE TRIBUNE Chandigarh, February 11

In a first, the Punjab and Haryana High Court has ruled that a husband cannot compel his wife to conceive and give birth to his child. Making it clear that relationships that know no limits too have boundaries, the high court has asserted intimacy is one thing, giving birth to a child another. “Mere consent to conjugal rights does not mean consent to give birth to a child for her husband,” Justice Jitendra Chauhan of the High Court has asserted. The judgment, pregnant with significance, also makes it amply clear that “to have and to hold, for better, for worse, for richer, for poorer, in sickness or in health” does not give a man the right to prevent his wife from going in for an abortion.

The ruling came on revision petitions filed by Chandigarh-based gynaecologist Dr Mangla Dogra and others petitioners. The controversy in the case hovered around the decision of a wife to go in for medical termination of pregnancy without her husband’s consent. Married in April 1994, the couple and their son were initially staying in Panipat. Due to “hostilities and strained relations”, the wife started staying with her parents, along with her son, at Chandigarh. The wife conceived after she agreed to accompany her husband to Panipat during the pendency of her application for maintenance. She then underwent an MTP carried out by Dr Mangla Dogra, who was assisted by Dr Sukhbir Grewal as anesthetist.

The husband, subsequently, filed a civil suit for the recovery of Rs 30 lakh towards damages for mental pain, agony and harassment against his wife, her brother and parents and Dr Dogra and Dr Grewal for getting the pregnancy terminated illegally. Taking up the plea, a Civil Judge asserted: “There is a cause of action in favour of the plaintiff against the defendants (wife and others) at this stage”. Aggrieved by the orders, Dr Dogra and other petitioners preferred the revisions. Justice Chauhan asserted: “The wife knew her conjugal duties towards her husband. Consequently, if the wife has consented to matrimonial sex and created sexual relations with her own husband, it does not mean that she has consented to conceive a child. It is the free will of the wife to give birth to a child or not…

“The wife is the best judge and is to see whether she wants to continue the pregnancy or to get it aborted… Keeping in view the legal position, it is held that no express or implied consent of the husband is required for getting the pregnancy terminated… “A woman is not a machine in which raw material is put and a finished product comes out. She should be mentally prepared to conceive, continue the same and give birth to a child. The unwanted pregnancy would naturally affect the mental health of the pregnant woman…” Imposing costs of Rs 50,000 on the husband, Justice Chauhan concluded: “It is held that the act of the medical practitioners Dr Dogra and Dr Grewal was legal and justified.”

http://www.tribuneindia.com/2012/20120212/main7.htm

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