13-Year-Old Rape-Survivor’s Desertion By Parents Unfortunate, Duty Of Society At Large To Provide Adequate Care: Calcutta High Court

The Calcutta High Court has recently allowed a plea by a 13-year old rape survivor for medically terminating her 26-week pregnancy and issued directions on the Child Welfare Committee, Purba Mednipur (“CWC”) to provide her younger sibling, and herself with all necessary assistance since they had been deserted by their migrant labourer-parents.

In allowing the minor’s plea, a single-bench of Justice Sabyasachi Bhattacharya directed the CWC to assist the survivor in travelling to SSKM Hospital, Calcutta who would set up a medical board to determine the viability of terminating her pregnancy.

Referring to one of its recently passed judgements, the Court held:

“The outer limit of 24 weeks of pregnancy as stipulated in Section 3(2)(b) of the MTP Act is not sacrosanct. there are situations where a decision can be taken for termination of pregnancy where the continuance of pregnancy would involve a risk to the life of a pregnant woman or of grave injury to her physical and mental health or if there is a substantial risk that the child, if born, would suffer from serious physical or mental abnormality. Hence, taking a comprehensive view of the relevant provisions of law as discussed above, the survivor is not only a minor but a victim of rape and aggravated penetrative sexual assault and, as such, the continuance of the pregnancy resulting from such heinous crime constitutes a grave injury to the mental health as well as physical constitution of the victim…for all practical purposes it would only be justified that the victim girl’s pregnancy is directed to be terminated.”

It was submitted by the petitioners that the minor survivor was a student of sixth standard, aged about 13 years, and had been living with her younger sibling, since their parents were migrant workers who worked in Assam and would infrequently return.

It was argued that in taking advantage of this situation, their 34-year old neighbour repeatedly committed aggravated penetrative sexual assault upon her, which she could not disclose due to fear of public stigma and retribution.

Petitioners submitted that subsequently the minor began exhibiting symptoms of pregnancy and that an FIR was lodged under sections of the IPC and POCSO Act, when she was taken to the hospital.

The survivor was thereafter taken into the care of the CWC, who determined that her pregnancy was of 26-weeks, which was two-weeks above the statutory limit for medical termination.

In relying on various Apex Court judgements, as well as keeping in view Article 21 of the Constitution, the Court allowed the minor’s plea for termination of pregnancy outside the 24-week statutory limit, while directing the CWC to provide all possible support and held:

A 13 year old girl, in any event, does not have a mature physical constitution to bear child properly in most cases. That apart, the indelible trauma and scar which would be left in the mind of the survivor in the event she is compelled to continue with the pregnancy, cannot even be imagined. In the present case, the petitioner is, after all, only thirteen and is so unfortunate that even her parents deserted her to her own fate. Hence, it is the duty of society at large to provide adequate care for the survivor in every respect. During the entire process, the CWC (Purba Medinipur) shall also take pro-active steps to protect and take care of the minor sister of the petitioner, as contemplated under the relevant statute(s) if she is also found to be deserted by her parents and family and/or found to be a child in need of care and protection, if possible, housing her with the petitioner, since they are apparently their only close family now.

Case: X v State of West Bengal

Coram: Justice Sabyasachi Bhattacharya

Citation: 2023 LiveLaw (Cal) 254

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