The Rajasthan High Court recently made significant remarks regarding the right of a minor rape victim to make reproductive choices.
The division bench comprised by Justice Sandeep Mehta and Dr. Justice Pushpendra Singh Bhati has held that "the right of a child rape victim to make the reproductive choice of terminating the foetus heavily outweighs the right of the child in womb to be born even where the pregnancy is at an advanced stage."
The decision has come in a second appeal preferred by the State Government in its capacity as the parens patriae, after a single-Judge bench of the High Court denied a minor rape victim's plea to terminate 25 weeks old pregnancy.
Vide the impugned order dated October 17, 2019, a single-Judge bench of the High Court turned down the prayer for termination of the child's pregnancy holding that the foetus in womb had a right to life as guaranteed under Article 21 of the Constitution.
This observation of the single-Judge was based on the following grounds:
(a) the balance was tilted in favour of the right to life of the child and not the victim's right to undergo medical termination of pregnancy;
(b) petition had been filed by the victim's widowed mother who could not have possibly perceived the feeling of a mother carrying a child in her womb
(c) An NGO had volunteered to take care of the child after its birth and thus, it could be presumed that the child would be brought up with requisite care and attention.
The division bench was of the opinion that the impugned Judgment impinges upon the statutory right of seeking medical termination of pregnancy provided to victims of rape under the Medical Termination of Pregnancy Act (MTPA).
In the facts of the case the bench observed, the appeal had been rendered "futile" as the minor victim would already have given birth to the child. However, it proceeded to assess the legality of the impugned judgment in an endeavour to protect the rights of the possible victims.
Right to life of victim outweighs right to life of foetus
The state counsel had urged that in a case where conception is a result of sexual assault being committed on a minor girl, her fundamental right to live as a normal person without undergoing the trauma of giving birth at such a tender age would have to be given precedence over the "fictional fundamental right" of the child yet to be born.
Concurring with this submission, the bench observed that a woman's right to privacy, dignity and bodily integrity is a fundamental right guaranteed by Article 21 of the Constitution of India; and when the prospective child has been conceived as a result of rape, the eventuality has been held as causing "grave injury" to the mental health of a woman by the Supreme Court in Suchita Srivastava & Anr. v. Chandigarh Administration, (2009)9 SCC 1.
In the comparative evaluation, the court said,
"the infringement of the fundamental right to life of the victim heavily outweighs the right to life of the child in womb."
The bench emphasized that the single-Judge did not appreciate the settled position of law that the right to reproductive choice includes both procreation as well as abstention therefrom.
Grave mental injury of the victim
"Where pregnancy is caused by rape, the anguish caused by such pregnancy would be deemed to constitute a grave injury to the mental health of the pregnant woman," the court said.
The court noted that while directing that the rape victim shall deliver the child, the Single Bench failed to consider the fact that the personal liberty of the woman was being impinged upon on two counts i.e. on her right to make a reproductive choice as well as posing a grave injury to her mental health and causing her Mental Trauma.
The court emphasized that medical opinion is well settled that giving birth at an early age causes great risks to the future well being of the mother.
"A serious debate is going on to increase the valid age for marriage of a girl from 18 years to 21 years. A bill has already been tabled in the Parliament to increase the permissible limit for Medical Termination of Pregnancy to 24 weeks in certain situations. Medical opinion is trite that the possibility of the child being undernourished is eminent if the mother is of a tender age," it observed.
In the facts of the present case, the court said, the situation is graver because the pregnant woman was a victim of child rape and thus, by not acceding to her request for termination of pregnancy, her fundamental right to avoid the after effects of the pregnancy has been permanently extinguished.
Forced an unborn child into the category of child in need of care and protection
By disallowing the minor victim to terminate her pregnancy, the court said, the single-Judge had forced an unborn child to fall in the category of child in need of care and protection under the JJ Act.
"The discretion exercised by the learned Single Bench has led to an irretrievable situation whereby, the child, yet to be born, was brought within the category of child in need of care and protection as defined under the Juvenile Justice Act and the victim has been made to face the consequences and social stigma of giving birth as an unwed mother," the bench said.
Remarks made against victim's mother "uncalled for"
Since the petition before the single-Judge had been moved by the minor rape victim's widowed mother, it was observed in the impugned judgment that the victim's mother could not possibly perceive the feeling of a mother carrying a baby.
Criticizing these remarks, the division bench said that the observation was totally "uncalled for".
"The observation so made is absolutely off the mark and is rather stigmatic to the victim's mother. Needless to say that it is the mother who gave birth to the victim and thus, to say that she could not have perceived the feeling of a mother carrying a baby was absolutely unwarranted," the court said.
The remarks were also held to be against the letter and spirit of Section 3(iv) of the MTP Act as per which, the consent of the guardian of a woman below 18 years for termination of pregnancy is considered sufficient for the purpose
Before parting, the bench passed the following directions to ensure that the "unfortunate situation" which was posed before it does not recur:
- the State Government shall frame suitable guidelines to ensure that the victims of rape who became pregnant by sexual assault are provided timely and legal as well as medical assistance so as to ensure that they can exercise their reproductive choice in terms of the MTP Act;
- no sooner, the factum of a victim of sexual assault having become pregnant is reported, the Medical Officer/ SHO of the police station concerned, shall forthwith forward a report thereof to the Full Time Secretary, District Legal Service Authority concerned who, in turn shall, approach the victim with a female counsellor and sensitise her and her guardians about the remedies under the MTP Act;
- in case, an application for termination of pregnancy is submitted by the guardian of the victim to the appropriate authority within the stipulated period of 20 weeks as provided by the MTP Act, the same shall be processed forthwith and suitable decision shall be taken thereupon within three days from the date of submission thereof;
- in case, the application seeking termination of pregnancy is filed before a competent court then, such court shall forthwith summon the victim's guardian and record his/her consent which shall deemed to be final. There shall be no requirement of intervention by police in the matter of consent seeking for termination of pregnancy;
- in case, where the threshold of 20 weeks gestation has been crossed, the Full Time Secretary, District Legal Services Authority shall assist the victim and her guardians if they so desire for approaching the High Court to file a writ petition seeking direction for termination of pregnancy in light of decisions of Hon'ble the Supreme Court and of this Court;
- the identity of the victim shall not be disclosed at any stage during this process.
Case Title: State Of Rajasthan & Ors. v. S. & Anr.
Case No.: Spl. Appl. Writ No. 1344/2019
Quorum: Justice Sandeep Mehta and Dr. Justice Pushpendra Singh Bhati
Appearance: Pankaj Sharma, AAG (for State); Dr. Sachin Acharya (for Respondent)