Kerala HC Allows Termination Of 26-Week Pregnancy For 13 Year Old Sexual Assault Survivor

A Bench of Justice Bechu Kurian Thomas allowed the petition moved by the father of the child.

Justice Thomas remarks in his Order,

"It (the pregnancy) may even have the possibility of reminding the victim of the incident of rape. It is obviously not in the interest of the society to have this young victim to undergo the trauma of the incident of rape everyday in her life. The anguish that the pregnancy causes to her will be lifelong and she may have to live with the traumatic experience throughout her life. The parents and the siblings will also have to share this trauma…"

The girl, a survivor of sexual assault allegedly committed by her 14-year-old brother, was found to be pregnant after she went to a hospital complaining of stomach ache.

The Court observed that the pregnancy would remain a scar throughout life and remain as a reminder of the trauma she had undergone, and followed the decisions taken by the Supreme Court in Sarmishtha Chakrabortty v. Union of India and the Kerala High Court in Neethu Narendran v. State of Kerala. In both these decisions, the termination of pregnancy was allowed after the 23 weeks.

Since the child's pregnancy was beyond the gestational age of 20-24 weeks, a Medical Board was constituted. The Board found that the termination would involve the risk of the foetus being born alive, of the need for multiple inductions and a surgical intervention if the induction failed. Subject to this risk, the termination could be allowed, the Board had submitted.

The Court pointed out that the termination of pregnancy was allowed if a Medical Board opined that continuing the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical and mental health or there is substantial risk to the child after born.

Additionally, Explanation 1 to Section 3 specifies that if the pregnancy is caused on account of a rape committed on the woman, it shall be presumed that the anguish caused by the pregnancy would constitute a grave injury to the mental health of the pregnant woman, the Court said. The words used in explanation is "shall be presumed".

Justice Thomas explained,

"The word "shall be presumed" created as a statutory presumption clearly shows the intention of the legislature. In the case of rape, the anguish on account of the pregnancy is statutorily regarded as a grave injury to the mental health of the pregnant woman, sufficient to terminate the pregnancy on the basis of opinion of two registered medical practitioners".

The Court reasoned that allowing the pregnancy to continue would be traumatic for the child as well as her parents. The child's parents also sought for the termination of the pregnancy, citing their child's trauma and possible genetic disorders upon the unborn child by reason of the survivor's close relationship with the alleged perpetrator.

"In view of the trauma that the minor girl has undergone and taking note of the opinion of the medical board, I am of the view that the writ petition ought to be allowed permitting termination of pregnancy to be performed on the daughter of the petitioner," the Court held.

Ordering the termination to be done within 24 hours of the 12 PM on April 19, the Court additionally directed that the foetus' tissue be collected for DNA identification and for the future purposes of the criminal investigation ongoing.

Instructing the Registry to maintain secrecy of all the medical reports and documents annexed to the writ petition, the appeal was disposed.

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