Gender-based laws aim at upliftment of the female gender, but it definitely does not mean that these laws should curb the prospects of the opposite sex. The primary objective of these laws is to secure women from any inhuman treatment, cruelty or injustice which they are often subjected to and ultimately to punish the wrongdoer. And if we hear some violence is done against men, especially when the accused is a woman, it is being depicted as humorous, in the media and elsewhere. They are humiliated if they are sensitive and emotional. Gender neutrality is the basic canon of various Criminal Legislations in India, one can see many discriminations based on gender in provisions of The Medical Termination of Pregnancy Act, 1971 and MTP RULES, 1975. The law requires only the woman’s consent i.e. if a man’s pregnant partner seeks to have an abortion, the father’s consent isn’t legally required although the father is to be responsible for child support payments. This prevailing misandry is being discussed in the research paper.

1. Introduction

Assuming that we belong to a male dominant society, we just believe that men are always the culprits for every crime done against a woman. Whenever we hear about any crime, cruelty, mistreatment or any sexual offence done against woman we take this note it might be done by a man. Though gender-based laws aim at upliftment of the female gender, but it definitely does not mean that these laws should curb the prospects of the opposite sex. The primary objective of such laws is to secure women from any inhuman treatment, cruelty or injustice which they are often subjected to and ultimately to punish the wrongdoer. And if we hear some violence is done against men, especially when the accused is a woman, it is being depicted as humorous, in the media and elsewhere. They are humiliated if they are sensitive and emotional.

Health is a crucial determinant of the quality of life and the productivity of the vast human resource in India. The improvement of health has far too long been considered a preserve of the medical profession. Law and health are both meant for society and social welfare. Moreover, in spite of the high-tech advances in medical science, the determinants of heath are basically social.^[1]  It is essential for all citizens to be aware about legal system and basic laws since violation of laws invites punishment. Ignorance is no excuse to absolve an individual of violation of any laws.

During the past three decades, there has been liberalization of abortion laws throughout the world. While discussing about abortion, quite often the focus is on the rights of a mother or unborn child, but it is absolutely forgotten that the family planning decisions also involves the father’s rights too. An expectant father might oppose the pregnant mother’s decision to abort the pregnancy. Conversely, he may not wish to become a father and oppose carrying a pregnancy. In both cases, the father’s rights are often seen as secondary to the mother’s. thus there is a need for a stronger paternal role in family planning.

2. Gender-based or Gender-biased?

Gender based violence can be described that violence which is inflicted against a woman simply because of the reason that she is a woman. Women as a class, unhappily, occupy an inferior and subordinate position in the society.^[2] The Charter of United Nations lays down that one of of its basic aims of its foundation is to secure and “…reaffirm faith in fundamental human rights, in dignity and worth of the human person, in the equal rights of men and women and of nations large and small…”^[3] yet again, the Universal Declaration of Human Rights proclaims that “all human beings are born free and equal in dignity and rights..” ^[4] The Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW) obligates the states to embody the principle of equality of men and women in their national constitutions or other appropriate legislations..^[5] The Constitution of India guarantees to all persons equality before the law and equal protection of laws to all persons.^[6] Thus keeping in mind the gender-based Violence, various women empowering laws regarding dowry, rape, adultery, cruelty, sexual harassment, divorce and domestic violence were made to provide safety and development to female population, which are now being misused to penalize the innocent male population. The fight for justice by females or the cry of gender equality should not be treated as if it is a fight against men. Thus these laws framed to curb gender-based violence should not become gender-biased.

Looking at this through Feminist ideology, as it interposes a model for understanding the root cause of this violence. It focuses on the concept of patriarchy as the underlying cause of men’s violence towards women. This view has dominated research and policy making to such a higher degree. Women were viewed as the property of men. From this perspective, the societal structure is designed to condone, perhaps encourage, and perpetuate the ordination of men over women. If a harassed man seeks help; the majority of society will see it as a laughable situation. Society chooses not to believe the man. This creates the feeling of guilt and shame for the male. Society’s view on violence has been reinforced by the media coverage of the issues surrounding domestic violence, rape laws, and maintenance laws etc. portraying females as the only victims and males as the abusers. Though they are being misused by unscrupulous women to extort money and harass their husband’s and his entire extended family, male friends and many others. Thus the nature of these gender biased laws needs to be highlighted and hereby this paper provides information about how to fight against the ‘gender discrimination’ and to save innocent families from this law which has been termed as ‘legal terrorism’ by Honourable Supreme Court of India. It was held that the provisions of such gender based laws is intended to be used a shield and not an assassin’s weapon.^[7]

There are disastrous results of these badly formulated and gender biased law as it has grossly violated the liberty and dignity of an average man and his family members. This prevailing misandry in the society should be focused upon. But also on the other hand this is quite certain that there is something really oblique about a law, when it intimidates and instills fear in innocent people. Thus when a person who has not committed any crime, begins to fear a punishment under the provisions of a law, it is not a law anyway rather it is more of a state of sponsored terrorism.

3. Gender Bias Provisions related to The Medical Termination of Pregnancy Act, 1971 and MTP Rules, 1975

Abortion in a obstetric parlance means the premature expulsion of the product of conception, before twenty-eight weeks of pregnancy (the period after which the foetus is considered viable).^[8] Various countries allow abortion on justified grounds which generally relate to physical and mental health of women as well as the health of the foetus itself. India, abortions were exclusively by the Indian Penal Code (IPC) and the Code of Criminal Procedure. It was considered a crime except when performed to save the life of a pregnant woman. The purpose of making abortion an offence under IPC was that it involved the performance of an operation dangerous to the life of the mother.^[9] The MTP Act was passed in 1971 and came into force from April 1972 except in J & K where it came into effect from Nov 1976.

The MTP Act is a health care measure which helps to reduce maternal morbidity and mortality resulting from illegal abortions. It also affords an opportunity for motivating such women to adopt some form of contraception. The Main aspects of the MTP Act 1971 are:

1. The conditions under which medical termination of pregnancy (MTP) is permissible.

• MTP can be carried out in case of contraceptive failure, rape, threat to the mother’s life and congenital anomalies.
• MTP can only be conducted at approved hospitals i.e., Government hospitals and other hospitals and centres specifically approved by the authorities  after ensuring availability of essential surgical facilities.
• MTP can only be performed by doctors trained for the purpose and by post-graduates in gynaecology and obstetrics.
• Certification approval is needed by one doctor when pregnancy is below 12 weeks and by two doctors when between 12 to 20 weeks. Beyond 20 weeks, no termination is permissible.
• Written approval of the lady or the guardian in case of a minor is to be obtained before carrying out the MTP.

1. The conditions under which a pregnancy can be terminated written consent of the woman is a pre-requisite for performing an abortion. In case of women under 18 years of age, written consent will be obtained from the guardian. In case of lunatics, guardian’s consent is obligatory irrespective of the age. Other conditions are:

• Medical, where continuation of pregnancy might endanger the mother’s life or cause grave injury to her physical or mental health.
• Eugenic, where there is substantial risk of the child being born with serious handicaps due to physical or mental abnormalities.
• Humanitarian, where the pregnancy is the result of rape.
• Socio-Economic, where actual or reasonably foreseeable environments (whether social/ economic) could lead to risk of injury to the health of the mother.
• Failure of Contraceptive Devices, this constitutes grave mental injury to the health of the mother. This condition is a unique feature of the Indian law and virtually allows abortion on request, in view of the difficulty of proving that a pregnancy was not caused by failure of contraception.
• The person or persons who can perform such termination. Any registered medical practitioner who has a post-graduate   degree or diploma in Obstetrics and Gynaecology is permitted to perform an MTP Other medical practitioners registered under the IMC Act on or after the commencement of the Act are permitted to perform MTP only under any one of the following conditions, Rule 3 :
  • On completion of six months of House Surgeon-ship in Gynaecology and obstetrics
  • In cases where House Surgeon-ship has not been done, the person must have at least one year’s experience in Gynaecology and Obstetrics in a hospital.
  • Experience of assisting a registered medical practitioner in performance of a minimum of 25 cases of MTP in a Government approved hospital or a training institute.
  • In case of pregnancy of less than 12 weeks duration, one medical practitioner may perform the MTP In case of pregnancies between 12 and 20 weeks duration, at least two medical practitioners are required to perform the MTP except in case of a life threatening situation. No MTP will be performed beyond 20 weeks duration of pregnancy.

1. The places where such terminations can be performed- Section 4

• A government hospital
• Centres specifically approved by health authorities after verification of necessary surgical facilities. The conditions to be fulfilled before such approval is granted are laid down in Rule 4.

As abortion has been treated statutorily as a personal matter; these services are provided in strict confidence after obtaining written consent.

The consent of the woman undergoing the medical termination has to be recorded, which is provided under MTP Rules.^[10] This consent has to be obtained prior to the procedure being conducted. It must be noted that the law requires only the woman’s consent and not the any other person’s consent, including the spouse.^[11] Thus, if a man’s pregnant partner seeks to have an abortion, the father’s consent isn’t legally required. A woman may choose to terminate a pregnancy against the objections of the father. The legal reasoning for this is twofold, based on a woman’s right to privacy in her medical decisions, and in the fact that the mother is more directly affected by pregnancy.

The Supreme Court of United States has found laws requiring a spouse’s consent for an abortion to be unconstitutional. In Planned Parenthood v. Danforth,^[12] the Court reasoned that, “a husband’s refusal to consent would in effect veto a woman’s choice to terminate a pregnancy. While both prospective fathers and pregnant women have an interest in the decision, when the two disagree, only one partner’s position can prevail.” According to the Court, since the woman actually carries the pregnancy, “the balance weighs in her favour,” preventing the husband from vetoing her choice.

Supreme Court of India hearing an appeal in a divorce case of  Ghosh v. Ghosh^[13]  on March 26, 2007 ruled that: “If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy (tubectomy) or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.” The court also held, “that a refusal to have sex with one’s spouse and a unilateral decision to not have a child would also amount to mental cruelty.” Considering the circumstances of the case, the court granted a divorce. The judgment has serious implications for reproductive health services in India, because it mandates spousal consent for induced abortion and sterilization.

The right to reproductive autonomy

The right to make free and informed decisions about health care and medical treatment, including decisions about one’s own fertility and sexuality, is enshrined in Articles 12 and 16 of the Convention on the Elimination of all Forms of Discrimination Against Women (1978). Autonomy, the right to informed consent and confidentiality are considered the fundamental ethical principles in providing reproductive health services. According to the convention, national norms, standards, and regulations should reflect these principles. Autonomy would also mean that when a mentally competent adult seeks a health service, there is no need for an authorisation from a third party.

According to recent ethical guidelines in reproductive health research, even use of the term “consent” has been restricted only to the person who is directly concerned; in circumstances where partners are involved it is termed a “partner agreement”.

India, as a signatory to the International Conference on Population and Development, 1994, has committed itself to ethical and professional standards in family planning services, including the right to personal reproductive autonomy and collective gender equality. Indian policies and laws so far seem to reflect this understanding, at least on paper. The National Population Policy, 2000, affirms the right to voluntary and informed choice in matters related to contraception. With respect to third party authorization, according to the standards for male and female sterilization published by the ministry of health and family welfare, government of India, the prior consent of the spouse is not required for performing sterilization on a woman. Both The Medical Termination Of Pregnancy Act, 1971 (amended in 2002 and its rules framed in 2003), and the ministry of health and family welfare’s guidelines for medical termination of pregnancy also specifically state that third party consent is not required unless the woman is a minor or mentally challenged, and both documents stress the need to maintain confidentiality.^[14]

In the case of Nirav Anupambhai Tarkas v. State of Gujarat,^[15] Nirav Tarkas tried hard for eight long years to get his wife prosecuted for her decision to terminate a pregnancy without his consent. However, all courts dismissed his applications on the ground that the consent of husband was not required for abortion. Recently, the Gujarat High Court too rejected his plea.

Tarkas came up with peculiar case stating before a magisterial court that when his wife was pregnant, she along with his in-laws decided to terminate the pregnancy. Though he did not give his consent, they got the fetus aborted and committed a crime. He demanded prosecution of his wife and four of his in-laws under section 312 of IPC, which provides for punishment of seven years for voluntarily causing a woman with child to miscarry. The couple had two kids already, when in 2002, the woman was pregnant for the third time. She did not want to keep the child and her family pressurized him to permitting an abortion. By this time, the husband and wife were not on good terms with each other. He did not give his consent, but his wife approached a couple of doctors in Vadodara, who did not agree for abortion because there was no consent of the husband. However, the woman went back to her parents’ house in Surat, where a doctor terminated her pregnancy. Unhappy with his wife’s gesture, Tarkas approached a magisterial court and lodged a complaint. The chief judicial magistrate (CJM), Vadodara ordered a court inquiry and asked police inspector of J P Police station to submit a report within two months. After the probe, police told the court that no offence was committed. CJM passed an order in 2006 that consent of the husband is not required for abortion as per Medical Termination of Pregnancy Act. Tarkas moved a session’s court against this decision, but his plea was turned down in 2007. He moved the high court demanding prosecution against his wife and in-laws for the alleged crime. Justice M D Shah, who heard the case, dismissed Tarkas’s plea with observation that the lower courts conclusion was true and “the law makes it mandatory to obtain consent of the pregnant woman in terminating the pregnancy, but the courts did not find it mandatory to obtain the husband’s consent.”^[16]

4. Conclusion

Thus, to conclude the law places much of the decision making power regarding abortion in the hands of the prospective mother. She may choose to terminate a pregnancy without the consent or notice of the father. At the same time, a woman may choose to give birth to a child, even if the father would prefer to remain childless. But the point which is not considered is that after birth, the father may be responsible for child support payments despite his objections to carrying the pregnancy to term. This has lead father’s rights to oppose what they see as a double standard in family planning. There is an utter bias towards the Rights of the prospective fathers.

Hence, if a prospective mother seeks to abort a pregnancy against a father’s wishes, there should be a legislation framed, where the father agrees to pay the costs of pregnancy and obtain full custody after birth. Similarly, if a father does not wish to be fully responsible for child support, informal child support agreements between parents could be made a possibility.

The very principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. Everyone should have equal rights and responsibilities, irrespective of gender. If we really want justice to prevail, if we really want people to have faith in the law, if we really want to proclaim equality and dignity, if we really want to rise above our shallow prejudices, if we really want humanity to supersede, we must have gender-neutrality as the solution.

Research Report by: 

Katiyani Juneja, Research Scholar and Asst. Prof of Law. Department of Laws, Guru Nanak Dev University, Amritsar

Article orignally published at our imprint ‘Medico Legal Reporter, Issue: 1‘

BIBLIOGRAPHY

BOOKS

1. Gupta, M.C., Health and Law (Kanishka Publishers, Distributors, New Delhi, 2002)
2. Gaur, H.S. The Penal Law of India, (Delhi Law House, Delhi, 1972)
3. Jaising, Indira Medical Termination of Pregnancy a user’s guide to the Law (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2004)
4. Tandon, Usha “Gender based violence and Female Foeticide,” in Gender Justice: A reality or Fragile Myth (Regal Publications, New Delhi, 2015)

ARTICLES
1. Chandrashekhar, S. Abortion in a Crowded World:Problem of Abortion with Special Reference to India (HarperCollins Publishers Ltd., Noida. 1974)

2. Rajalakshmi, “Reducing reproductive rights: spousal consent for abortion and sterilization,” in Rajalakshmi, Indian Journal of Medical Ethics, Vol. 4, No 3 (2007).

STATUTES

1. Charter of the United Nations, 1945, Preamble.
2. The Constitution of India, 1950.
3. The Medical Termination of Pregnancy Act, 1971.
4. The Medical Termination of Pregnancy Rules, 1975.
5. UN, Declaration of Human Rights, 1948.
6. UN Conventional on Elimination of All Forms of Violence against Women, 1979.

NEWSPAPER

1. Times of India, Newspaper.

Referred Citations:

^[1] M.C. Gupta, Health and Law 9 (Kanishka Publishers, Distributors, New Delhi, 2002)

^[2] Usha Tandon, “Gender based violence and Female Foeticide,” in Gender Justice: A reality or Fragile Myth 230 (Regal Publications, New Delhi, 2015)

^[3] Charter of the United Nations, 1945, Preamble.

^[4] UN, Declaration of Human Rights, 1948, art. 2.

^[5] UN Conventional on Elimination of All Forms of Violence against Women, 1979, art. 2.

^[6] The Constitution of India, 1950, art. 14.

^[7] Sushil Kumar Sharma v. Union of India and Ors., Writ Petition (civil) 141 of 2005.

^[8] S. Chandrashekhar, Abortion in a Crowded World:Problem of Abortion with Special Reference to India 21 (HarperCollins Publishers Ltd., Noida. 1974).

^[9] H.S Gaur, The Penal Law of India, 2569 (Delhi Law House, Delhi, 1972)

^[10] Rule 9, MTP Rules.

^[11] Indira Jaising, Medical Termination of Pregnancy a user’s guide to the law 29 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 2004)

^[12] (1976) US Supreme Court, No.74-1151.

^[13] Samar Ghosh v. Jaya Ghosh, Appeal (civil) 151 of 2004.

^[14] Rajalakshmi, “Reducing reproductive rights: spousal consent for abortion and sterilization,” in Rajalakshmi, Indian Journal of Medical Ethics, Vol. 4, No 3 (2007).

^[15] Special Criminal Application No. 1352 of 2008; Decided in 2011.

^[16] TNN, “Husband’s consent not required for abortion: HC,” Times of India, Newspaper, Oct 7, 2011.