"Not Necessary That Rape Allegation Is Proved Before S. 3 Of MTP Act Is Invoked": MP HC (DB) Allows Abortion, Sets Aside Single Judge Order

In a significant ruling, the Madhya Pradesh High Court has held that it is not necessary that the allegation of rape be proved before Section 3 of the Medical Termination of Pregnancy Act, 1971 [When pregnancies may be terminated by registered medical practitioners] can be invoked.Ruling thus, the Divison bench comprising Justice Sheel Nagu and Justice Deepak Kumar Agarwal set aside a Single Judge order which had refused to permit to abort a fetus of more than 12 weeks of a 19-year-old girl who had alleged, that on the pretext of marriage, a man had committed rape on her without her consent.Read more about the Single Judge Order here: 19-Yr-Old Girl Mature Enough To Realize Consequences Of Consensual Sex Sans Precaution: MP High Court Denies Permission To Abort FetusFacts of the caseEssentially, the prosecutrix had alleged before the court that the man (her lover) had promised her, that he would marry her, and on this pretext, he was having a physical relationship with her for the last 4-5 years but when she became pregnant, he refused to marry her, therefore, she sought permission from the Court to terminate her pregnancy.However, noting that the allegation of the prosecutrix was that she was in deep love with the man and she was having consensual sex with him, the Single Judge had refused permission to abort the fetus and had observed thus:"The petitioner is aged about 19 years, therefore, she is mature enough to realize the consequences of consensual sex without any precaution."The reason assigned by the Single Judge for rejecting the plea of the prosecutrix was that the sexual intercourse prima facie appeared, from the prosecution story, to be consensual.Now, setting aside the above-said order in an appeal filed by the Prosecutrix, the Division Bench of the High Court noted that the prosecutrix had alleged that she was subjected to rape and the pregnancy arose from the said incident of rape and since the period of pregnancy was below 20 weeks, therefore, she should be granted permission to abort her fetus."...she admittedly is subjected to grave injury to her physical and mental health due to said rape, this Court cannot stand in the way of the prosecutrix in getting her pregnancy aborted/ terminated," the Court said.The Court further noted that the prosecution case is of rape against the prosecutrix aged 19 years, who alleged that though she entered into a sexual relationship with the accused with consent but the said consent was based on the promise extended by the accused to marry her in the future. "The said promise, as per prosecution story, was broken by the accused. Whether the promise was false from the very beginning or it was a case of breach of promise, is a fact to be established by adducing of evidence, which stage is yet to come," the Court further added.Section 3 of the MTP ActIt may be noted that as per the provisions of Sub-Section (2) of Section 3 of the Act, 1971 Medical Termination of Pregnancy Act, where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, then the pregnancy could be terminated if:Not less than two registered medical practitioners are of the opinion, in good faith,That the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health/Also, explanation (1) appended to the sub-section (2) says that where the pregnancy is caused by rape, the anguish shall be presumed to constitute a grave injury to mental health.Against this backdrop, the pivotal question for consideration before the Court was this- whether sex with the man was consensual sex or it was sex with the consent of the petitioner which was obtained by misrepresentation of fact?This question assumes significance in such cases, because if the consent for the physical relationship was obtained by misrepresentation of fact, then it would amount to rape and therefore, would come under the purview of explanation (1) appended to the sub-section (2) allowing termination of pregnancy with Court's permission.Court's observationsWhile the single Judge assumed that she had given her consent for the act, the Division Bench observed that the Single Judge ought not to have presumed the presence of an element of consent as a dissuading factor, especially, when the case relating to the allegation of rape is pending before the trial Court."The said promise, as per prosecution story, was broken by the accused. Whether the promise was false from the very beginning or it was a case of breach of promise, is a fact to be established by adducing of evidence, which stage is yet to come," the Court added.Lastly, allowing her appeal against the Single Judge order and permitting her to abort her fetus, the Court ruled thus:"This Court hastens to add that the Scheme of the 1971 Act is such that it allows triggering of Section 3 provision inter alia in cases where rape is alleged. It is not necessary that the allegation is proved before...

"Not Necessary That Rape Allegation Is Proved Before S. 3 Of MTP Act Is Invoked": MP HC (DB) Allows Abortion, Sets Aside Single Judge Order

Sparsh Upadhyay

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