In sexual assault cases, the woman has a right to say yes or no to being a mother, the Court said while considering a plea to terminate the pregnancy of a 12-year-old rape victim.
A woman cannot be forced to give birth to the child of a man who had sexually assaulted her, the Allahabad High Court held recently while considering a plea to terminate a 25-week pregnancy carried by a 12-year-old who was raped.
To fasten the responsibility of motherhood on women who are sexually assaulted would violate their right to live with dignity and result in unexplained miseries, the Court said.
A Bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar added that the woman has a right to say yes or no to being a mother.
“In the case of sexual assault, denying a women right to say no to medical termination of pregnancy and fasten her with responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother. Section 3(2) of the MTP Act reiterates that right of a woman. To force the victim to give birth to child of a man who sexually assaulted would result in unexplainable miseries (sic),” the judgment stated.
The main issue before the Court was whether it could allow a plea for abortion made by a 12-year-old rape victim who was deaf and mute and whose pregnancy had exceeded 24 weeks.
The minor girl was subjected to rape and sexual assault multiple times by her neighbour. However, due to her inability to speak, she could not narrate her ordeal to anyone for a long time, the Court was told.
Later, when her mother enquired about the same, the victim used sign language to disclose that she had been raped.
Her mother then lodged a first information report (FIR) for rape and offences under the Protection of Children from Sexual Offences Act (POCSO Act).
When the victim was medically examined last month, it was found that her pregnancy was at 23 weeks.
A request to terminate the pregnancy was eventually placed before a Medical Board on June 27. The Board opined that since the pregnancy had exceeded 24 weeks, the Court’s permission was required before the abortion could be conducted.
The Court noted that there were provisions in the Medical Termination of Pregnancy Act (MTP Act) that specifically laid down rape and minority of the mother as grounds to terminate a pregnancy that was up to 24 weeks. Further, the Act also provided for a presumption that a rape victim’s mental health would be adversely affected by a pregnancy resulting from rape.
The Court acknowledged that the MTP Act did not ordinarily permit termination of pregnancies beyond 24 weeks, except where there were significant fetal abnormalities.
However, the Bench pointed out that constitutional courts, including the Supreme Court, have allowed the termination of pregnancies beyond 24 weeks in exceptional cases.
Taking a humanitarian view of the matter, and given the urgency, the Court proceeded to order a medical hospital to examine the child within a day’s time. A report was also directed to be submitted by the hospital in sealed cover by July 12.
