19-Yr-Old Girl Mature Enough To Realize Consequences Of Consensual Sex Sans Precaution: MP High Court Denies Permission To Abort Fetus

[NOTE: This order has been set aside by the Division Bench of the High Court and the Girl has been granted permission to abort the fetus. More details here: "Not Necessary That Rape Allegation Is Proved Before S. 3 Of MTP Act Is Invoked": MP HC (DB) Allows Abortion, Sets Aside Single Judge Order]

The Madhya Pradesh High Court (Gwalior Bench) recently refused to permit medical termination of pregnancy (of more than 12 weeks) of a 19-year-old girl who had alleged, that on the pretext of marriage, one Rocky, whom she loved, had committed rape on her without her consent.

She alleged before the court that the man had promised that he would marry her, and on this pretext, he was having a physical relationship with her for the last 4-5 years but when she became pregnant, he refused to marry her, therefore, she sought permission to terminate her pregnancy.

Noting that the allegation of the prosecutrix was that she was in deep love with the man and she was having consensual sex with him, the Bench of Justice G. S. Ahluwalia refused permission to abort the fetus and observed thus:

"The petitioner is aged about 19 years, therefore, she is mature enough to realize the consequences of consensual sex without any precaution."

The question before the court

It may be noted that as per the provisions of Sub-Section (2) of Section 3 of the Act, 1971 Medical Termination of Pregnancy Act, where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, then the pregnancy could be terminated if:

• Not less than two registered medical practitioners are of the opinion, in good faith,
• That the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health/

Also, explanation (1) appended to the sub-section (2) says that where the pregnancy is caused by rape, the anguish shall be presumed to constitute a grave injury to mental health. 

Against this backdrop, the pivotal question for consideration before the Court was this- whether sex with the man was consensual sex or it was sex with the consent of the petitioner which was obtained by misrepresentation of fact?

This question assumed significance as if the consent for the physical relationship was obtained by misrepresentation of fact, then it would amount to rape and therefore, would come under the purview of explanation (1) appended to the sub-section (2) allowing termination of pregnancy with Court's permission.

Court's observations 

At the outset, the Court noted that in FIR itself, it was specifically mentioned that since the petitioner was in deep love with the man, therefore, she used to visit the house of Rocky Shakya in absence of his family members and they used to have consensual sex.

"The petitioner is a major girl knowing fully well the pros and cons of consensual sex without any precaution. Even the FIR was lodged after it was detected that the petitioner is pregnant," added the court.

Further, the Court also noted that for the purpose of this writ petition, the Court had to only determine as to whether the permission for medical termination of pregnancy can be given or not specifically in the light of the provisions of IPC that the termination of pregnancy is otherwise an offence.

Therefore, dismissing the plea, the Court remarked thus:

"This Court is of the considered opinion that since the petitioner involved herself in a consensual sex knowing fully well about the consequences of such act, and the allegations made in FIR, do not prima facie make out a case of consent obtained by misrepresentation of fact, therefore, under these circumstances, medical termination of pregnancy cannot be permitted."

Case title - Prosecutrix Vs. The State of M.P. and others

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