The judgment dealt with several important issues related to the rights of pregnant women and rights of minor children when the question of freedom to voluntarily indulge in sexual relations arises.
The Madurai Bench of Madras High Court in Marimuthu v. The Inspector of Police, dismissed the writ petition of a father seeking direction to his minor daughter’s abortion. The judgment delivered by Justice S. Vimala dealt with several important issues related to the rights of pregnant women and rights of minor children when the question of freedom to voluntarily indulge in sexual relations arose.
The writ petition was filed by the father, who had originally filed a missing complaint of his daughter with respondent 1. It was concluded upon investigation that Victim had been kidnapped by Accused, a minor boy named Sithanan, on the pretext of marriage.
The girl was found after two months and the missing report was altered into Sections 417, 366A and 376 of IPC and Section 4 & 5 of the POCSO Act.
After medical examination, the girl was found to be pregnant and the gestational age of foetus was 14 weeks.
The father alleged that Accused had raped the Victim and thus, the girl must be directed to terminate her pregnancy as his contention was that continuance of the pregnancy would expose his daughter to health hazards and mental trauma arising from unwanted pregnancy.
But the girl contended that the pregnancy didn’t occur out of coercion and she wanted to carry on with the pregnancy, knowing full well its implications. The court had directed a careful medical examination of the girl and listed the matter again after two days, and on that day, the minor girl again refused to give her consent to the doctors for an abortion.
An important question dealt with was whether the girl was a minor at the time of incident (the sexual between the girl and juvenile in conflict with law in question). From the evidences submitted, it was concluded that the sexual intercourse occurred when the girl was about 17 years 8 months old but on the date of production before the court, she was aged above 18 years, and R5 was about 17 years 6 months old on the date of occurrence, but above 18 years of age on the day of production before the court.
The next question was when the victim girl was minor at the time of incident but had turned a major on the date of production before the High Court, whether her consent was essential in deciding the issue regarding termination of her pregnancy. Section 4(a)(b) of the Medical Termination of Pregnancy Act, 1971, states that save as otherwise provided in Clause (a) [reference is to Clause 4(a)], no pregnancy could be terminated without the consent of the pregnant woman.
The court also pointed out that under Section 3(2), there can be no termination of pregnancy, if the length of pregnancy has exceeded 20 weeks. Only exception is found in Section 5 under which pregnancy can be terminated to save the life of the pregnant woman, if the opinion of the medical practitioner is formed in good faith.
Whether Sub-Section 4(a) can be understood as dispensing with the consent of the pregnant woman if she is below 18 years of age is the crucial issue for consideration. At the time of conception, no doubt, the petitioner's daughter was below 18 years of age, but she had attained 18 at the time of hearing by this court.
The court, after examination of the ‘victim’ in question, was satisfied that the girl was willing to go ahead with the pregnancy, knowing well its implications.
During the inquiry of the matter by the court, it was discovered that the girl and R5 had already married and they produced a photo to support their claim.
Once married, the couple together decided that there was no need to abort the foetus. Thus, the next important question dealt with was the validity of marriage in terms of the provisions of the Prohibition of Child Marriage Act, 2006 (or ‘Act’).
Under this Act, a marriage is void only if circumstances prescribed under Sections 12 (a) to (c) exist, which, the victim girl submits did not exist in the particular case. Thus, it was held that since the marriage itself wasn’t void, then the father had no right to direct his daughter to terminate her pregnancy without her consent.
Whether the minor daughter's Right to Life under Article 21 includes the right to beget a life or create a life was the pertinent issue raised, to which the court said:
“The right to autonomy to the woman and to decide what to do with their own bodies, including whether or not to get pregnant, and, if pregnant, whether to retain the pregnancy and to deliver the child, i.e. the right to motherhood, is towards their empowerment and it is in accordance with the International Covenant on Human Rights. Considering the right to life, which includes the right to beget a life and the right to dignity, the right to autonomy and bodily integrity, the foetus cannot be ordered to be aborted against the wishes of the victim girl.”
When India has ratified the conventions on the rights of the child and when the consent of the victim girl cannot be dispensed with while aborting pregnancy, the court found itself compelled to decline permission to terminate the pregnancy.
Thus, based on the above contentions and issues, the writ petition was dismissed without costs.
Advocate K.P.S.Palanivel Rajan was the Amicus Curie in the Case.
Read the Order here.