In a landmark decision, the Allahabad High Court held that in cases of sexual assault, denying a woman medical termination of pregnancy would amount to denying her human right to live with dignity.
The court’s Division Bench, comprising Justices Mahesh Chandra Tripathi and Prashant Kumar, was hearing a plea moved by a 12-year-old rape victim seeking medical termination of her 25-week pregnancy, under the Medical Termination of Pregnancy Act (MTP Act) of 1971.
“In the case of sexual assault, denying a women right to say no to medical termination of pregnancy and fasten her with responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother. Section 3(2) of the MTP Act reiterates that right of a woman. To force the victim to give birth to child of a man who sexually assaulted would result in unexplainable miseries,” the Division Bench held.
The minor victim, born on April 17, 2011, was subjected to rape and sexual assault multiple times by her neighbour. Due to her disability to speak and listen, she could not narrate her ordeal to anyone, the court noted. The court observed that she is 84 per cent disabled, as per her disability certificate, and already living a miserable life. The victim’s mother is a poor lady, who is a labourer and after the demise of her father, the victim’s mother is in serious financial distress and barely able to fulfil her basic needs.
The victim’s mother found out about the incidents of sexual assaults perpetrated against the minor on June 15, 2023. When she asked the victim about it, the victim communicated to her mother in sign language, revealing that she had been raped multiple times. Subsequently, the victim’s mother filed an FIR against the accused and a case was registered under various provisions of the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act. Thereafter, a medical examination of the victim, conducted on June 16, revealed that she was 23 weeks pregnant.
The victim’s mother approached the appropriate authority, which constituted a Medical Board on June 27, 2023, to determine whether the victim’s pregnancy could be terminated. The Medical Board noted that the victim’s pregnancy was beyond the stipulated period of 24 weeks and that she suffered from anaemia, the board opined that the victim would need the permission of the court.
Thus, the victim’s counsel moved the court seeking its permission for medical termination of the minor victim’s pregnancy. The counsel cited a Supreme Court’s 2021 ruling in the Venkatalakshmi case, wherein the apex court allowed a rape victim to terminate her pregnancy beyond the gestational age of 24.
“However, the Medical Board opined on 30.06.2023 that the petitioner was carrying the pregnancy of more than 25 weeks and as such, she was beyond the permissible gestational age limit under the MTP Act, 1971. Hence, the petitioner was advised to approach this Court and seek judicial intervention,” the court noted.
The court further observed that the victim falls under the special categories of the rules notified as per the mandate of section 3(2)(b) of the MTP Act. The court also noted that when a pregnancy has been caused by rape, the anguish caused could constitute a grave injury to the mental health of the pregnant woman.
“Therefore, it is not in dispute that in case of a minor victim, who is alleged to be sexually assaulted or raped and as a consequence of which she has conceived, the injury that is caused to her mental health is presumed even statutorily,” the court noted.
“Though the statute does not provide for termination of pregnancies over the gestational age of 24 weeks except in case of detection of substantial foetal abnormalities, the provision in regard to which is Section 3(2B) of MTP Act, the extraordinary powers of the Constitutional Courts, however, have been recognized even by the Hon’ble Supreme Court of India and exercised several times by the High Courts to allow termination of pregnancies even in cases where pregnancy has exceeded the limit of 24 weeks,” the court noted.
The court noted the urgency of the matter and took a humanitarian view. The court requested the Vice Chancellor of the Aligarh Muslim University, to constitute a five-member team to examine the minor victim on July 11 and submit a report before the court in a sealed cover on July 12.
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