'Fastening Responsibility Of Motherhood On A Rape Survivor Amounts To Denying Her Right To Live With Dignity': Allahabad HC

While dealing with a writ plea filed by a 15-year-old year rape victim seeking to terminate her 29-week pregnancy, the Allahabad High Court on Monday observed that forcing the victim to give birth to a child of a man who sexually assaulted her would result in unexplainable miseries to her.

"In the 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 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," the bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar observed.

Essentially, the rape victim, a class 10th student, had approached the Court praying for the issuance of directions for the termination of her over 29-week pregnancy.

It was submitted that she was subjected to rape and sexually assaulted multiple times by her neighbour and her father has already lodged an FIR against the accused under Sections 363, 366, 376 IPC and Section 7/8 of the POCSO Act

At the outset, the High Court referred to the Supreme Court's recent ruling in the case of XYZ vs. the State of Gujarat & ors wherein considering a similar issue in detail, the Top Court permitted the victim, who was pregnant for more than 27 weeks, to terminate her pregnancy

Further, the Court referred to Section 3 of the MTP Act, which provides that termination of pregnancy of a woman where it exceeds 20 weeks, but does not exceed 24 weeks, can only be allowed in special categories, and where the medical practitioners are of the opinion that continuance of such pregnancy would either involve a risk to the life of the women or cause grave injury to her physical health or grave injury to her mental health.

The categories, under which pregnancy can be terminated where pregnancy is between 20 to 24 weeks, have been prescribed by the Central Government under the Medical Termination of Pregnancy, Rules 2003 [as amended by Medical Termination of Pregnancy (Amendment) Rules, 2021].

Perusing the aforesaid Rules, the Court noted that clause (a) relates to victims of sexual assault, rape or incest and clause (b) relates to minors and in the present case, the victim would fall under both, i.e. clause (a) and (b) as she is a minor aged around 16 years, who is alleged to have been raped.

"Explanation 2 to the aforesaid provision 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," the Court observed further.

In view of this, considering the urgency of the matter and taking a humanitarian view, the Court requested the Medical Superintendent of Sir Sunder Lal Hospital, Banaras Hindu University, Varanasi to constitute a Five-Members Team headed by the Department of Obs & Gynae; Department of Anaesthesia and Department of Radio Diagnosis to examine the victim on Tuesday (September 5) and submit a report before the Court in sealed cover on September 6. The Court will take this matter up next on Wednesday.