No Obligation On State To Inform Sexual Assault Victim Of Right To Terminate Pregnancy: Rajasthan HC Flags MTP Rules, Initiates Suo Moto Case

Upholding an order dismissing a father's plea seeking termination of his daughter's over 24-week pregnancy who was allegedly trafficked and raped, the Jaipur bench of the Rajasthan High Court took suo motu cognizance of the issue noting that there was no obligation in law on the State to apprise a sexual assault survivor of her right to termination.

In doing so the court observed that delay in taking steps resulted in various complications that compelled such women to continue with unwanted pregnancies.

A division bench of Chief Justice Manindra Mohan Shrivastava and Justice Uma Shankar Vyas observed that it had been noticed that numerous petitions were filed seeking Court's intervention for termination of pregnancy mainly because proper steps were not being taken by the victim within the stipulated time period under the Medical Termination of Pregnancy Act, 1971. 

"The provisions as contained in the MTP Act 1971 and the rules made thereunder or any other law do not oblige the Government, investigating agencies or any other authority to ensure that a woman or a victim of sexual assault, where she is major or minor is apprised of her valuable right to termination of pregnancy. It eventually results in cases where termination of pregnancy is not possible without judicial intervention.  As the MTP Act, 1971 itself permits termination of pregnancy up to 24 weeks of pregnancy, belated approach to the Court involves various complications, mostly risking life of a woman in case where pregnancy is outcome of sexual assault. Such victim faces a situation where because of delay in seeking termination of pregnancy and high risk of danger to life involved, she has to continue with the unwanted pregnancy and deliver a child to which she is most unwilling. We are, therefore, inclined to issue appropriate directions till appropriate legislation in this regard is made". 

Hence, taking suo motu cognizance of the situation, the Court held that till the time appropriate legislation was made in this regard, it shall issue directions, and asked the registry to register a separate case title, “In Re: Termination of Pregnancy”.

Background

The order was passed in an appeal filed by the father of a girl–whose age varied between 14-19 years, against the order of a single judge which had dismissed the petition for termination of pregnancy.

There were two medical reports involved. In the first medical report, it was opined that termination of pregnancy would involve "very high risk" to the life of the girl as well as the foetus. However, the single judge did not find this to be conclusive and on the physical and psychological effect of termination or delivery on the girl and because it did not present a comparative view between the risk involved in termination versus continuation of pregnancy. Therefore, a re-examination was ordered.

In the second report, it was opined that owing to the advanced stage of pregnancy, termination was of higher risk to both the girl and the foetus while continuing it till full term will have lesser possibility of risk for both of them. However, at the end it stated, that owing to the combined physical and psychological risk, "premature termination" was favoured.

It was the case of the appellant that despite the second medical report opining in favour of termination, the single judge relied upon the first report to decline the petition for termination of pregnancy. In light of the reproductive choice being recognized as part of Article 21, the victim could not be compelled to continue with an unwanted pregnancy.

On the other hand, it was argued on behalf of the State that it was not an adversarial litigation for the state, but still they would oppose the appeal in light of the risk to the victim's life. It was submitted that after dismissal of the petition, no expeditious steps were taken by the appellant to file an appeal which caused a delay of one month, further advancing the gestation period as well as multiplying the risk to the victim's life.

Findings

After hearing both the sides, the made a reference to the Supreme Court's decision in A (mother of X) v State of Maharashtra & Another (2024) in which the foetus was found to be of almost 29 weeks and taking into account the medical report, the Supreme Court had ruled that longer gestational period of foetus had increase the risk involved in ending the pregnancy.

The Court opined that the "opinion in the medical report had to be read as a whole and no part of it can be read in isolation or divorced from the other part". It said that the "opinion when read as a whole" had been correctly interpreted by the single judge. The single judge had ruled that while premature termination would be favourable to the girl and her family psychologically, however termination at this stage would increase the risk to her life as well as to the foetus, adding that continuing pregnancy would be of less risk.

The court said that in the facts of this case, allowing termination of pregnancy at this stage would subject the girl to much higher risk to her life as was opined by the medical board when she was examined a second time. The court also noted that "opinions had been rendered by two medical boards" which predominantly declared high risk involved in terminating pregnancy, and that terminating it would lead to higher risk than continuing it.

On the fact that plea for termination was moved belatedly, the court said,“A very crucial aspect of the presence case is that though the learned Single Judge proceeded with utmost expedition and decided the case in few days after obtaining reports one after another in quick succession, the appellant, through her natural guardian took almost one month to file present appeal with the result that now the appellant is at an advances stage of pregnancy of 31-32 weeks. Therefore, as on the date, decision has to be taken keeping in view the advanced stage of pregnancy of the appellant-victim.”

In doing so the court also underscored that while it was not oblivious to the girl's fundamental right of reproductive choice, the agony and the stress which she would undergo to carry the pregnancy, however subjecting her to termination would increase risk to her life, which as a Constitutional Court committed to protecting citizens' lives it cannot allow. 

The Court held that all other aspects of the matter like complexity, stress, agony after delivery could be dealt with sensitive approach, care, counselling and moral support of the parent, doctors and other agencies.

Accordingly, the appeal was disposed of.

Case Title: Victim v State of Rajasthan & Ors.

Citation: 2024 LiveLaw (Raj) 385

Counsel for Appellant: Ms. Naina Saraf

Counsels for Respondents: Mr. Vigyan Shah (AAG) with Mr. Yash Joshi