17 Aug 2023 12:00 PM GMT
The Calcutta High Court on Thursday upheld the right of a minor rape survivor to seek medical termination of pregnancy, even when such termination was sought for outside the statutory limit of 24 weeks as prescribed in the Medical Termination of Pregnancy Act, 1971 (“Act”). A single-bench of Justice Sabyaschi Bhattacharya directed the formation of a medical board to ascertain the viability...
The Calcutta High Court on Thursday upheld the right of a minor rape survivor to seek medical termination of pregnancy, even when such termination was sought for outside the statutory limit of 24 weeks as prescribed in the Medical Termination of Pregnancy Act, 1971 (“Act”).
A single-bench of Justice Sabyaschi Bhattacharya directed the formation of a medical board to ascertain the viability of terminating the minor-survivors “in-the-circumstances unfortunate pregnancy” and held:
Whereas motherhood could have come as a matter of choice much later in life, it was imposed on our little protagonist as a slur and not a blessing. The immense mental trauma of such a child can only be imagined in the wildest nightmare. The writ court, as a court of equity, cannot shut its eyes so tight that a tender life goes to waste. Only 25+ weeks, as opposed to the statutory 24 weeks, of pregnancy have elapsed. It is not yet too late. Science is not yet fool proof as to when the embryo becomes a ‘human’ but an eleven-year old child’s humanity is undisputed. The right of the victim which will be violated, if the prayer in the present writ petition is refused, is on the exalted plane of nothing less than her right to life, as enshrined in the Constitution of India. Thus, the facts of the present case leave no manner of doubt that law should be relaxed to the utmost to accommodate yet another minor daughter of ours, an unfortunate victim of social apathy, who should at least be given a new lease of life by being permitted to have medical termination of her in-the-circumstances unfortunate pregnancy.
These observations came in a writ petition filed for the termination of pregnancy by the father of an 11-year old girl, who was a victim of gang rape as defined under Sections 376DB IPC and Section 6(1) of the POCSO Act.
The Court noted that the minor was around 25 weeks pregnant, and that the pregnancy was a result of the “atrocity committed on the minor victim.”
It was argued by the petitioners that although under Section 3(2)(b) of the Act the outer limit on pregnancies which could be terminated have been set to 24 weeks, Explanation 2 of Section 3(2) provided that if any pregnancy had been caused by rape, the ‘anguish caused by pregnancy’ shall be presumed to be a grave injury to the mental health of the pregnant woman.
Further under 5(1) of the Act, it was submitted that the operation of Section 3 and 4 would remain restricted if “a registered medical practitioner is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”
Upon taking into account the submissions of the petitioners and noting that the present proceedings were non-adversarial in nature, the Bench examined various Supreme Court judgements on the issue, and looked into the position of law prior to the 1971 Act.
It was noted that, prior to 1971, under the IPC, termination of pregnancy was only allowed in circumstances wherein it was induced to save the life of the mother.
It was further observed that under the 1971 Act, in Section 5(1), the restrictions relating to the length of pregnancy were not to be applied to cases wherein a registered medical practitioner was in good faith, of the opinion that termination of pregnancy would be necessary to save the pregnant woman’s life.
In deciding on the question whether the present case fell within the exception envisaged under Section 5(1) of the act, the Court looked at the circumstances of the case.
It was observed that the victim, who remained anonymous per SC guidelines, was 11 years of age, from an extremely weak financial background and that her ‘tender age’ would denote that she had ‘barely attained puberty.’
The Court observed:
Even without discussing in detail the surrounding circumstances, it is evident that if the victim gives birth to a child, being herself only 11 years of age and unsure about her next meal, since she hails from a financially challenged family, the physical trauma and mental shock of giving birth to a child as a result of the atrocities committed on her would be unimaginable and would, in all probability, remain as a reminder of the episode with her forever. That apart, it is also obvious that a child, if given birth to by the victim, who is herself but a child, would have extremely poor chances of a healthy upbringing and/or even a normal birth
The pregnancy, if it reaches fruition, would put the life of the pregnant woman at risk, both due to the mental trauma and the physical ordeal through which she is having to and will have to undergo. The episode of childbirth, if permitted, would not end in a flash but would be a permanent stigma throughout the life of the petitioner, apart from being extremely detrimental to her physical and mental wellbeing and that of the yet-unborn. Bringing a child to see the light of the day is not always welcome. In the present case, all facets of balance of convenience and inconvenience cry out in favour of the medical termination of the pregnancy.
Accordingly, the Court held that although Section 3 of the Act stipulated 24 weeks as the outer limit for termination of pregnancy, there would be no reason why the exception under Section 5(1) would not apply to the present case.
In parting, the Court took note of the efforts made by the petitioner’s counsel, District Child Welfare Committee, Legal Aid Services and police authorities in interfering in the matter in order to provide assistance to the victim’s financially and socially downtrodden family to enable them to file the present writ petition.
The Court concluded that given the social stigma attached with the offence of rape, and the victims tender age, she could not be made to suffer “double-jeopardy” in having to face societal apathy and trauma which delayed the writ petition as well as to be ‘saddled by a rigorous and academic interpretation of law.’
In directing the formation of a medical board to assess the victim’s medical condition and to draw up a report on the viability of the termination of her pregnancy, the Court opined:
The victim cannot, thus, face double jeopardy, being deterred by societal apathy in approaching the court so late, after having become the victim of such a brutal offence in the first place, and again, to be saddled with a rigorous and academic interpretation of law (which is so easy to ruminate on, sitting in the comfort of the air-conditioned court room) to defeat every fundamental right which the victim has as a budding young lady, a minor child, a citizen of India and as a human being as such. The outer limit of 24 weeks, which has been stipulated by the Parliament as a general proposition, cannot be a rigid edict set in stone, which does not lend itself to malleability even in just and exceptional cases, on humanitarian considerations, if not for any other reason.
Accordingly, the respondent nos.7 and 8 are directed to constitute a Medical Board within the contemplation of Section 3(2D) of the Medical Termination of Pregnancy Act, 1971 for necessary examination of the minor victim girl for ascertaining the pros and cons of medical termination of her pregnancy. A report in that regard shall be filed by the said Medical Board on August 21, 2023, when the writ petition shall be placed at the top of the list for passing final orders.
Case: Sri X Vs. The State of West Bengal and others
Coram: Justice Sabyasachi Bhattacharyya
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