Can't Force Rape Victim To Mother A Child: Bombay High Court Allows Termination Of Minor's 16 Week Pregnancy

A bench of Justices A.S. Chandurkar and Urmila Joshi-Phalke noted that the Apex Court has observed that reproductive choice is an insegragable part of a woman's personal liberty as envisaged under Article 21 of the Constitution of India.

"She cannot be forced to give birth to a child...She has a choice to give birth to the child or not," it observed.

The petitioner was a minor who had committed murder and was in custody at an Observation Home. It was discovered by the Investigating Officer that she was pregnant because of sexual abuse. A crime under Protection of Children from Sexual Offences Act, 2012 was registered.

The petitioner pleaded that she is from an economically weak background, and has also undergone trauma due to sexual abuse, which she continues to suffer from. She pleaded that given her circumstances it would be difficult for her to raise a child. Neither was she equipped financially nor mentally. Moreover, this was an unwanted pregnancy.

The bench called for a Medical Report, which stated that her pregnancy was 16 weeks, yet it consented for termination of her pregnancy. The bench noted that Section 3 of the Medical Termination of Pregnancy Act, 1971 provides for termination of pregnancy:

• when the length of the pregnancy does not exceed twelve weeks
• When the length of the pregnancy exceeds twelve weeks, if more than two registered medical practitioners are of the opinion that the termination is in good faith
• If the continuance of the pregnancy would involve a grave risk to the life or mental health of the pregnant woman
• If there is a substantial risk that if the child were born, it would suffer from serious physical or mental abnormalities

Explanation 1 further allows termination if the pregnancy is caused by rape as the anguish caused by such pregnancy shall constitute a grave injury to the mental health of the pregnant woman.

The High Court held that termination of pregnancy can be permitted post twelve weeks in certain situations. The bench noted that in the present case the petitioner is a minor and is unmarried. She is a victim of sexual abuse. Moreover, she is lodged in an Observational Home for an offence of murder. She is from an impoverished background. She also contends that the pregnancy is unwanted, and she is suffering from severe trauma.

The bench stated that declining permission to terminate the pregnancy would be tantamount to compelling her to continue with her pregnancy which in the circumstances will not only be a burden on her, but it would also cause grave injury to her mental health. Considering these observations, the court allowed the termination of the petitioner's pregnancy regardless of her having completed sixteen weeks.

Case Title: 'A'  versus  State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 240