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

Français : Palais de Justice de Chandigarh, Inde.

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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

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

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Law Minister is defiant: EC Complainst to President

In an unprecedented action, the Election Commission (EC) tonight sought the “immediate and decisive” intervention of President Pratibha Patil after it charged Law Minister Salman Khurshid with “improper and unlawful” defiance of its orders under which he was censured for promising sub-quota for minorities. In a strongly worded communication to Patil, the commission said Khurshid’s action could “vitiate free and fair polls” in Uttar Pradesh and that the EC was “perturbed because the undermining of its constitutionally mandated duties has come from the law minister who has direct responsibility to uphold and strengthen the ECI rather than to denigrate it”.

The commission took the unprecedented decision to complain against a union minister to the President after Khurshid had told an election rally in UP earlier in the day that he would continue to pursue the line on nine percent sub-quota for minorities ‘even if they (EC) hang me’. Khurshid had earlier been censured for the same statement made on January 8 while campaigning in UP, with EC holding that it was violative of the Election Model Code of Conduct.

The decision of writing to the President came after an emergency meeting of the full three-member Commission headed by S Y Quraishi. Never before has EC sought presidential intervention to rein in a union minister in the middle of a crucial election. The letter of the EC is :

Respected Rashtrapati Ji,

The Commission is approaching you with serious dismay and a deep sense of urgency that requires your kind intervention in the midst of the poll process in the state of Uttar Pradesh. The Union Minister for Law and Justice and Minority Affairs, Sh. Salman Khurshid, who is also a leader of the Indian National Congress Party, had made certain statements and announcements during the course of his campaign in the state. One of them was to the effect that the Congress would provide a quota of 9% reservation to the minorities within the existing quota of 27% for OBCs. He also indicated that Muslims having a sizeable population will be benefited from this move.

Following complaints received from a political party that such announcement was a violation of the Model Code of Conduct, the Commission, after due notice and hearing, passed an order on 9th February, 2012 that Sh. Khurshid had indeed violated the MCC. The following are the relevant observations contained in the Order

“The Commission, therefore, cannot help expressing its deep anguish and disappointment over his violation of model code of conduct. As a Union Minister for Law and Minorities Affairs, he has an added responsibility of ensuring that the model code of conduct is observed in letter and spirit so that elections are conducted in a free and fair manner and all political parties enjoy a level playing field in the matter of their election campaigns. In the above circumstances, the Commission hereby censures Sh. Salman Khurshid and hopes and expects that such violations of model code of conduct would not be repeated by him in future. “ Sh. Khurshid has been seen in television media today (11th February 2012) making statements to the effect that he would pursue the line of his earlier announcement irrespective of whatever the Commission directs. In fact, the Union Minister goes on to say that he would stick to his line, “even if they hang me”. We have found the tone and tenor of the Union Minister dismissive and utterly contemptuous about the Commission’s lawful direction to him, besides the fact that his action is damaging the level playing field in the election.

The above response of a Union Minister and that too, the Law Minister, to the Commission’s decision in a MCC case has created a disturbing situation. The Commission is shocked that instead of being remorseful about the violation of the Model Code, that carries the consensus of all political parties and the sanction of the Supreme Court, the Minister has chosen to be defiant and aggressive. This is unprecedented. The full Commission hence deliberated on the matter in an emergency meeting, this afternoon, while being concerned about the fact that Sh. Khurshid’s action could vitiate free and fair poll in Uttar Pradesh. The Commission is perturbed because the undermining of its constitutionally mandated duties has come from the Law Minister who has a direct responsibility to uphold and strengthen the ECI rather than to denigrate it. Hence, we find the immediate need to draw attention of the executive to the fact that the onus of holding free and fair polls falls on all organs of the State. The Commission is quite concerned that the delicate balance of functions between constitutional authorities has come under a strain, because of the Minister’s improper and unlawful action.

The Election Commission of India finds it necessary and unavoidable to turn to you at this juncture for immediate and decisive intervention so that the ongoing general election to the Uttar Pradesh Assembly is conducted, and this Commission discharges its functions, in accordance with the Constitution and the law.

With respectful regards,
(S.Y. Quraishi)