Forcing Rape Victim To Give Birth To Child Of Man Who Assaulted Her Violates Right To Dignity Under Article 21: Kerala High Court

Justice Kauser Edappagath held that denying permission to terminate an unwanted pregnancy would equate to imposing forced motherhood and deprivation of the right to life with dignity, constituting a violation of Article 21 of the Constitution of India. The Court held:

“Section 3(2) of the MTP Act provides that if the continuance of the pregnancy would cause grave injury to the physical or mental health of the pregnant woman, the pregnancy can be terminated. Explanation 2 of section 3 (2) says that where the pregnancy was caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Hence, a rape victim cannot be forced to give birth to a child of a man who sexually assaulted her. Declining permission to a rape victim to medically terminate her unwanted pregnancy would amount to forcing her with the responsibility of motherhood and denying her human right to live with dignity which forms a significant part of the right of life guaranteed under Article 21 of the Constitution.”

It was stated that the victim was sexually abused by her lover resulting in an unwanted pregnancy. A crime was registered against the man at Edakkad Police Station in Kannur district under Section 376 IPC, Sections 4(1), 3(a), 3(b), 6(1), 5(j)(ii) of the POCSO Act, 2019 and Sections 3(1)(w)(i) and 3(2) (v) of the SC/ST(POA) Act.

The Counsel for the petitioner contended that pregnancy has to be terminated for the physical and mental well-being of the minor victim.

The Court traced the history of abortion in India. It observed that abortion was illegal in India until the 1960s. It noted that the Medical Termination of Pregnancy Act, 1971 was enacted legalising safe abortions pursuant to Shantilal Shah Committee recommendations.

It stated that the MTP Act was amended in 2021 to allow abortions up to 24 weeks of gestation from the previous 20 weeks for 'certain categories of women' that include survivors of rape, incest, minors, women experiencing a change of marital status (widowhood or divorce), women with disabilities, women with foetal anomaly and those living in emergency, disaster or humanitarian crisis.

The amendment also permits termination of pregnancies beyond 24 weeks in cases of foetal anomalies of the child based on the opinion of State Level Medical Boards, it was said.

The Court stated that the MTP Act protects privacy, confidentiality and dignity of women in accessing safe abortions which is protected under Article 21 of the Constitution of India.

“The right of a woman or a girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy. Reproductive rights include the right to choose whether and when to have children, the right to choose the number of children and the right to access to safe and legal abortions”, stated the Court.

Relying upon the Apex Court decision in Suchita Srivastava v. Chandigarh Administration (2009), the Court stated that reproductive choice is an integral part of the right to personal liberty under Article 21 of the Constitution.

In X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022), the Apex Court ruled that both married and unmarried woman has reproductive autonomy to choose to continue or terminate pregnancy. In XYZ v State of Gujarat (2023), the Apex Court ruled that a woman alone has the right over her body and she is the ultimate decision maker on abortion.

In the facts of the case, Court noted that the victim, a minor was alleged to have been raped. It stated that even while the MTP Act does not allow for terminating pregnancies beyond 24 weeks, the High Court under Article 226 of the Constitution has wider powers to permit termination of pregnancies even if the pregnancy has exceeded the 24-week limit.

The Court stated that pregnancy due to sexual abuse causes physical and mental trauma to the victim. It said, “This is because such a pregnancy is not a voluntary or mindful pregnancy.”

Referring to the report of the medical board, the Court stated that continuation of pregnancy would cause severe psychological trauma to the minor victim since she is a rape survivor. The Court further noted that the victim being a member of a Scheduled Caste community would also face social isolation from the SC/ST Community.

It also found that the victim was from a poor financial background and was also not mentally prepared to deliver a child. Considering all the above factors, the Court permitted the medical termination of pregnancy.

The Court further stated that if the foetus was found alive at birth, the baby should be provided with the best medical treatment and the State shall assume its full responsibility and offer medical aid and other assistance under the Juvenile Justice (Care and Protection of Children) Act, 2015.

Accordingly, the petition was disposed of, and the termination of pregnancy was allowed.

Counsel for Petitioner: Advocate Shameena Salahudheen

Counsel for Respondents: Senior Government Pleader Deepa Narayanan, Senior Panel Counsel T C Krishna

Citation: 2024 LiveLaw Ker 282

Case Title: XXXX v Union of India

Case Number: WP(C) NO. 16366 OF 2024

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