Rape Victim Can't Be Forced To Give Birth To Child Of Man Who Sexually Assaulted Her: Allahabad High Court

“In the case of sexual assault, denying a woman the right to say no to medical termination of pregnancy and fasten her with the 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,” the bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar observed.

Essentially, the rape victim, a minor, had approached the Court through her mother praying for the issuance of directions for the termination of her 25-week pregnancy.

It was submitted that she was subjected to rape and sexually assaulted multiple times by her neighbour but due to her disability to speak and listen, she could not narrate her ordeal to anyone.

Thereafter, pursuant to the enquiries mad by her mother, the victim used sign language to disclose that she had been raped by the accused. Her mother then lodged an FIR against the accused for rape and offences under the POCSO Act.

When the victim was medically examined on June 16, 2023, she was found to be carrying a pregnancy of 23 weeks. Further, on June 27, when the matter was placed before the Medical Board, it was opined that since the pregnancy had exceeded 24 weeks, the Court's permission was required before the abortion could be conducted. Hence, she moved to the HC.

Here it may be noted that as per Section 3 of MTP Act, termination of pregnancy of a woman where it exceeds 20 weeks but does not exceed 24 weeks can only be allowed in special categories, and where the medical practitioners are of the opinion that continuance of such pregnancy would either involve a risk to the life of the women or cause grave injury to her physical health or grave injury to her mental health.

The categories, under which pregnancy can be terminated where pregnancy is between 20 to 24 weeks, has been prescribed by the Central Government under the Medical Termination of Pregnancy, Rules 2003 [as amended by Medical Termination of Pregnancy (Amendment) Rules, 2021].

Perusing the aforesaid Rule, the Court said that clause (a) relates to victims of sexual assault, rape or incest and clause (b) relates to minors and in the present case, the victim falls under both, i.e. clause (a) and (b) as she is a minor aged around 12 years, who is alleged to have been raped.

“Therefore, the victim would fall under the special categories as enumerated by the Central Government under the rules notified as per the mandate of section 3(2)(b) of MTP Act…” the Court held.

The Court also noted that though the statute does not provide for termination of pregnancies over the gestational age of 24 weeks except in case of detection of substantial foetal abnormalities, the provision in regard to which is Section 3(2B) of MTP Act, the extraordinary powers of the Constitutional Courts, however, have been recognized even by the Hon'ble Supreme Court of India and exercised several times by the High Courts to allow termination of pregnancies even in cases where pregnancy has exceeded the limit of 24 weeks.

Considering the urgency in the matter and taking a humanitarian view, the Court requested the Vice Chancellor, of Aligarh Muslim University to direct the Principal, of Jawahar Lal Medical College, Aligarh to constitute a 5-Member Team headed by Department of Obs & Gynae; Department of Anaesthesia and Department of Radio Diagnosis to examine the petitioner on July 11 and submit its report before the Court on July 12.

The matter will now be heard tomorrow, July 12.

Advocate Raghav Arora appeared for the petitioner.

Case title - Ms X vs.State Of U.P. And 4 Others [WRIT - C No. - 22016 of 2023]

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