Directing to assess the viability of permitting termination of a 28-week pregnancy for a 15-year-old survivor of sexual assault, the Allahabad High Court (HC) recently observed that in case of sexual assault, denying a woman the right to say no to medical termination of pregnancy and fasten her with the responsibility of motherhood would amount to denying her the human right to live with dignity.
A bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar said, “…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 the child of a man who sexually assaulted would result in unexplainable miseries”.
The court added that although 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, as given under Section 3(2B) of the Medical Termination of Pregnancy (MTP) Act, the extraordinary powers of the Constitutional Courts, empower them to allow termination of pregnancies over such stipulated limit.
The court was dealing with a plea moved by a rape survivor, seeking direction to the respondents to terminate her unwanted pregnancy and bear the expenses of that procedure.
THE CASE
The counsel for the petitioner informed the court that the petitioner, a Class 10 student, was subjected to rape and sexual assault by her neighbour multiple times.
A first information report (FIR) was lodged by petitioner’s father on August 18 under Section 363 of IPC to which, during the investigation, the Investigating Officer added Sections 366, 376 of the Indian Penal Code (IPC) and Section 7/8 of the Protection Of Children from Sexual Offences (POCSO) Act.
A plea for termination of the pregnancy of the petitioner was moved by her father on August 30, before the Chief Medical Officer, Chandauli, and after medical examination, it was found that she was carrying a pregnancy of 29 weeks and 2 days.
As the period of pregnancy had already gone beyond 24 weeks, for termination of the same, permission from the court was needed.
While pressing the urgency in the matter, the petitioner’s counsel posed the question before the court whether the petitioner could be compelled “to give birth to an unwanted child or not”.
The Court referred to the Apex Court’s decision in Murugan Nayakkar v. Union of India & Ors (2017) and XYZ vs. the State of Gujarat & Ors (2023) which related to termination of the pregnancy of minors.
The Court further pointed out Explanation 2 to Section 3(2)(b) of MTP Act which explicitly provides that where pregnancy is alleged to have been caused by an act of rape, the anguish caused by such a pregnancy shall be presumed to constitute grave injury to the mental health of pregnant woman as required under Section 3(2)(i) of MTP Act.
“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,” held the bench.
Accordingly, while considering the urgency in the matter and taking humanitarian view, court requested the Medical Superintendent of “Sir Sunder Lal Hospital, Banaras Hindu University, Varanasi” to constitute a five-member team to examine the petitioner and submit a report in a sealed cover.
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