‘Forcing Woman To Have Child Born Out Of Rape Against Constitutional Philosophy’: Supreme Court Allows Survivor’s Plea For Abortion

A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing an urgent plea of the survivor who approached the top court after being denied relief by the Gujarat High Court. An Adivasi woman in a remote village in Gujarat, the petitioner was allegedly raped under the false pretext of marriage. At 26 weeks, she filed a writ petition in the high court for permission to terminate her pregnancy, but no relief was granted despite a favourable opinion of a medical board. She is now nearing the third trimester of her pregnancy, having carried the foetus for 27 weeks and three days. 

The view taken by the high court is against constitutional philosophy, Justice Bhuyan said today. “How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?”

During the hearing, Solicitor-General for India Tushar Mehta recalled another instance in which a woman initially insisting on terminating her pregnancy was persuaded to deliver the baby, which was later given in adoption –

“We recently encountered this case where a girl was pregnant. The situation was different because the pregnancy arose out of consensual sex. This is more heinous. A team of AIIMS doctors said that pregnancy would be permissible, but the chances of the seven-month-old foetus not surviving would be 80 percent. In this case, the court requested my colleague, Ms Aishwarya Bhati, to meet the pregnant girl and counsel her to carry the baby to term, while assuring her that the State would take responsibility of the child. The girl agreed and was looked after by the government which ensured complete anonymity. She delivered a baby, which was immediately given in adoption by this court exercising its Article 142 jurisdiction to a very good family. This is a beautiful event that has happened before, in this court. That is why I am bringing your attention to it.”

“That was not a case of rape,” Justice Bhuyan pointed out, “There is a great difference between the two situations.” Since rape is a traumatic event to begin with, asking a rape survivor to continue with pregnancy is also a perpetuation of the trauma.

Senior Advocate Sanjay Parikh, appearing for the petitioner, also interjected, saying that the survivor had not agreed to carry the baby to term.

Solicitor General Mehta clarified, “I am not comparing the two situations. This was a good thing that happened. That is why I shared it. I understand that in this case, it is a forced pregnancy and not a voluntary one.”

Justice Nagarathna said : “The foetus also has an Article 21 right to life. If this foetus survives, let the State give an incubation facility and it will become a child of the State. We are thankful for that. We would have anyway said it in our order.”

The law officer assured the bench that all necessary medical facilities would be made available to the rape survivor by the government. “I undertake this personally. If the foetus survives, the State will take the responsibility of providing not only an incubator but also whatever else is required in the paediatric ward of the hospital.”

Noting the solicitor-general’s assurance, Justice Bhuyan said, “You can take care of these things subsequently. In the meanwhile, let her undergo the process.”

In the order, the court also made significant observations about the stress and trauma caused to women by pregnancies outside marriage, especially when resulting from rape –

“...To give birth to an unwanted child or not is the question posed by the appellant in this appeal, being unsuccessful before the Gujarat High Court. In Indian society, within the institution of marriage, pregnancy is a reason for joy and celebration, and for great expectation, not only for the couple but for their families and friends. By contrast, pregnancy outside marriage in most cases is injurious, particularly after a sexual assault or abuse, and is a cause for stress and trauma, affecting both the physical and mental health of the pregnant woman – the victim. Sexual assault or sexual abuse of a woman is itself distressing, and sexual abuse resulting in pregnancy, compounds the injury. This is because such a pregnancy is not a voluntary or a mindful pregnancy.”

On Saturday, the Supreme Court held a special sitting to hear a 25-year-old rape survivor’s urgent plea for pregnancy termination after the Gujarat High Court refused her relief. The petitioner is an Adivasi woman from a remote village in Gujarat who was allegedly raped under the false pretext of marriage. She approached the Gujarat High Court first under Articles 226 and 227 of the Constitution along with Section 482 of the Code of Criminal Procedure, 1973 and Section 3 of the Medical Termination of Pregnancy Act, 1971.

The petitioner’s pregnancy is now nearing 28 weeks. When she was 26 weeks pregnant, a medical board found her to be clinically fit for the termination procedure. The board was constituted on the strength of a high court order, which had taken on board the survivor’s writ petition on August 8.

On August 10, the board placed its report before a single-judge bench of the Gujarat High Court, but despite the favourable opinion, Justice Samir J Dave did not entertain the plea for abortion. The following day, that is, August 10, the bench took the report on record and adjourned the hearing till August 23.

At the special sitting, the apex court bench criticised the 12-day postponement of the hearing. Acknowledging the urgency of the survivor’s plea, Justice Nagarathna exclaimed, “How can the court stand it over to August 23? How many valuable days would have been lost by then!”

The bench recorded its dissatisfaction in the order, by observing –

“…Strangely, the Gujarat High Court posted the case 12 days thereafter on 23.08.2023, losing sight of the fact that every day's delay was crucial and of great significance having regard to the facts and circumstances of the case. In the instant case, when the petitioner had approached the Court, she was already 26 weeks pregnant. Therefore, we find that valuable time has been lost between August 11, when the report was placed before the High Court and the order stating that the matter will stand over to August 23.”

Despite directing the matter to be re-listed on August 23, it was later advanced to August 17. On that day, the petition was dismissed summarily without providing any reasons. The order of dismissal, which was not uploaded on the website till this weekend, read –

“…Looking to the medical report and that the age of fetus is almost 27 weeks as on today i.e., August 17, and considering the statements made by the advocate for the petitioner-victim and averments made in the application, present petition stands rejected and the medical termination of pregnancy, as prayed for by the petitioner in the present petition, is rejected.”

On Saturday, the bench headed by Justice Nagarathna directed the secretary-general to make inquiries on whether the order had been uploaded and whether the petition had been disposed of by the high court on August 17. Not only this, the bench also ordered a fresh medical examination and directed the report to be submitted by Sunday, while adjourning the hearing till Monday, August 21.

Advocate Swati Ghildiyal, accepted notice on behalf of the State of Gujarat. The arguing counsel Advocate Shashank Singh was assisted by Advocate Yogyata Jhunjhunwala.

Case Details

XYZ v. State of Gujarat | Diary No. 33790 - 2023

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