Woman Entitled To Termination Of Pregnancy In Rape Cases, Has Right To Say 'Yes' Or 'No' To Being A Mother: Delhi High Court

The Delhi High Court has observed that denying a woman the right to medical termination of pregnancy in sexual assault cases and imposing the responsibility of motherhood on her, would amount to “denying her the human right to live with dignity” as she has a right in relation to her body including the right to say “yes or no” to being a mother.

Observing that section 3(2) of the Medical Termination of Pregnancy Act reiterates such a right of a woman, Justice Swarana Kanta Sharma said that to force the victim to give birth to the child of a man who sexually assaulted her would result in “unexplainable miseries.”

“One will shudder to think what a victim who is carrying such fetus in her womb must be going through each day, being reminded constantly of the sexual assault that she has undergone. Cases where sexual assault results into pregnancy of the victim are even more traumatic as the shadow of such tragic moment lingers on each day with the victim,” the court said.

It further observed that it is the mental agony which has been taken into account by the MTP Act that lays emphasis on not only grave physical injury but also mental health of a pregnant woman.

“It therefore provides under Section 3(2)(i) that if the continuance of pregnancy would involve grave injury to the mental health of a pregnant woman, she can legitimately seek to terminate the same,” the court said.

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Emphasising that a woman has a right to make reproductive choices and decisions concerning her bodily integrity and autonomy, Justice Sharma permitted a 14 year old minor rape victim to undergo medical termination of pregnancy. She was 25 weeks pregnant when produced before court. 

Noting that the rape victim is a minor, Justice Sharma said in cases like these termination of pregnancy cannot be reduced “merely to be defined as right of a woman sexually assaulted, but also to be recognized as a human right” as it affects dignified existence of a victim if the same is not permitted.

“It is not the privacy of the rape victim which is invaded by sexual assault, but her body is wounded and her soul is scared. It would not be appropriate to expect the minor victim who is a rape victim to take the burden of giving birth and raising a child, especially in a situation where she herself is passing through the age of adolescent. Doing so, will amount to asking a child to give birth and raise another child. Given the social, financial, and other factors that are immediately associated with the pregnancy, an unwanted pregnancy would surely have an impact on victim’s mental health,” the court said.

The court thus directed that the minor victim shall make herself available on January 27 before the competent authority of Ram Manohar Lohia Hospital for medical termination of her pregnancy.

It added that the Superintendent of the hospital and Medical Board will ensure that the termination of pregnancy is undertaken by competent doctors in accordance with the provisions of MTP Act, prevalent Rules, regulations and guidelines.

The court directed the State to bear all the expenses necessary for termination of pregnancy of, including her medicines, food etc.

“If the child is born alive, despite the attempts at medical termination of the pregnancy, the doctors concerned shall ensure that everything, which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose, is offered to such child so that he/she develops into a healthy child,” the court added.

The court also took note of the Child Welfare Committee report regarding their interaction with the minor. It disclosed that the victim had studied upto class V and after returning from village, she has not been able to continue her studies, though she wants to study further.

The bench said the victim and her mother are are the victims of circumstances. Sexually assaulted in absence of her mother who had gone to work, she was too scared to seek help or to even inform her mother about sexual assault fearing the consequences, the court observed.

Taking note of the financial condition of the minor's parents, the court said:

“They look after the same to ensure safety of such construction sites, but were unable to provide safe environment and educational facilities to their own daughter. This case speaks volumes about the need to execute the directions issued in several judgments and ensuring execution of such orders to provide rights of persons working and living at construction sites ensuring that the programs for ensuring safety and education of every child is achieved as one of the constitutional goals.”

The court said that poverty has its own multi-dimensions and its own jurisprudence too and a judge cannot separate herself from the social contexts in which a crime is committed and a victim suffers, and that the case in hand is also an example of “how one tragic event of sexual assault has changed the entire life of the family who is struggling to feed their children and end up with a minor daughter impregnated due to sexual assault.”

It thus directed DSLSA to make outline of a programme for such workers in the national capital, through its secretaries in all districts, so that such workers are informed about their right to education.

“The students of law colleges and other colleges under their programme of SUPW can arrange some programmes at construction sites, the students can volunteer for such purpose and can educate them about their educational rights and may pass their own creativity skills as well as basic education to them,” it said.

Justice Sharma also directed the SHO concerned to ensure that after the medical termination and the period of rest, the minor is admitted to a Government school.

The Court was also of the view that it was faced with “such a circumstance where it cannot stop itself at taking cognizance of only the facts of present case, but feels the need to further enter in the arena of taking cognizance of the sufferings, psychological trauma and sense of being defeated by the circumstances that this poor family is going through.”

“The Secretary, DSLSA is also requested that while they are doing commendable job in Delhi to educate people regarding their rights including legal rights, they may also explore possibility and frame a scheme where such victims are counselled and informed about their right to education and help them secure admission in a State run school in appropriate cases,” the court said.

Title: MINOR R THR MOTHER H v. STATE NCT OF DELHI & ANR.

Citation: 2023 LiveLaw (Del) 85

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