Reproductive Choice of Woman Is a Fundamental Right Flowing From Article 21 Of Constitution :Rajasthan HC [Read Judgment]

Radhika Roy

2 May 2020 7:44 AM GMT

  • Reproductive Choice of Woman Is a Fundamental Right  Flowing From Article 21 Of Constitution :Rajasthan HC [Read  Judgment]

    Reproductive Choice of Woman Is a Fundamental Right encompassed under the umbrella of Article 21 of the Constitution of India.

    A Division Bench of the Rajasthan High Court has upheld the notion that the reproductive choice of a woman is a fundamental right encompassed under the umbrella of Article 21 of the Constitution of India. It also held that right of child rape survivor to make any reproductive choice outweighs the right of the unborn child to be born, even in cases where pregnancy is at an advanced...

    A Division Bench of the Rajasthan High Court has upheld the notion that the reproductive choice of a woman is a fundamental right encompassed under the umbrella of Article 21 of the Constitution of India. 

    It also held that right of child rape survivor to make any reproductive choice outweighs the right of the unborn child to be born, even in cases where pregnancy is at an advanced stage.

    In doing so, the Division Bench set aside a Single Bench judgment which impinged upon the statutory right of seeking medical termination of pregnancy provided to survivors of rape by The Medical Termination of Pregnancy Act.

    Despite the exercise involved in the appeal being rendered futile as the survivor had already delivered the child, the High Court took up the issue on appeal by the State Government in a bid to clear the path of future rape survivors.


    A minor girl was sexually assaulted and ended up conceiving. In order to seek for permission for termination of the pregnancy, an application was moved before the Special Judge, SC/ST Cases, Churu who directed for a medical examination to be conducted in order to ascertain the girl's mental and physical status, as well as that of the foetus. A direction was also given to check whether the minor girl was physically capable of giving safe child birth or not.

    The Medical Board gave its opinion that there would be no serious threat to her life as a result of termination of pregnancy and this opinion was put before the Special Judge who transferred the case to the Court of the Special Judge, POCSO Act Cases.

    The Special Judge of the POCSO Court passed an order holding that the application was not maintainable "because the length of gestation had gone beyond the threshold of 20 weeks prescribed by the Medical Termination of Pregnancy Act, 1971 (MTP Act)". It was also held that the relief, if any, could be extended only by the High Court in its writ jurisdiction.

    Accordingly, the survivor preferred a writ petition before the High Court of Rajasthan and an additional opinion was sought from the Medical Board regarding whether the termination of pregnancy would be conducive to the health of the girl or would it pose any serious threat to her life and body. The Medical Board expressed that no serious threat would pose to the survivor.

    However, the Single Judge Bench of the HC rejected the petition and held that the foetus in the womb had a right to life as guaranteed under Article 21 of the Constitution of India. The Order of the Learned Single Judge, while acknowledging the pain and agony of a rape survivor, observed that period of 20 weeks as stipulated by the MTP Act had passed and that the "Court cannot be unmindful of the voice of the 'yet to be born' – a fully alive prospective child in the womb".

    The Order further stated that the "compelling State interest" in preserving life had to be balanced vis-à-vis the right of the Petitioner as a rape survivor from suffering unnecessary mental agony. Accordingly, the facet of "being alive" encompassed by Article 21 took precedence over that of "bodily integrity", and the court dismissed the petition of the survivor.

    The State Government then appealed against the judgement rendered by the Learned Single Judge claiming that "the impugned Judgement impinges upon the fundamental right of victims of rape from seeking termination of a forced pregnancy".


    Additional Advocate General Pankaj Sharma submitted to the Division Bench that the impugned Judgement was bad in the eyes of law as it ran contrary to the letter and spirit of the MTP Act.

    He contended that concept of comparative agony as evaluated by the Single Bench was could not be employed as scientific research had established that child birth at an age below 18 years was harmful to the mental and physical well-being of the mother.

    "The possibility that the girl giving birth at such a tender age would suffer numerous future complications is imminent. He urged that in a case where conception is a result of sexual assault being committed on a minor girl, then her fundamental right to live as a normal person without undergoing trauma of giving birth at such a tender age would have to be given precedence over the fictional right of the child yet to be born".

    Sharma referred to Supreme Court judgments such as Sarmishtha Chakraborty & Anr. v. Union of India (2018), Mrs. X and Ors v. Union of India & Ors (2017) and Suchita Srivastava & Anr v. Chandigarh Administration (2009) in order to drive home the point that the right to seek termination of pregnancy must be honoured and upheld unconditionally irrespective of the length of gestation, except for those case where medical opinion is otherwise.


    The Division Bench of the Rajasthan High Court comprising of Justices Sandeep Mehta and Dr. Pushpendra Singh Bhati observed that the learned Single Judge had made the decision on the basis of two factors:

    1. Foetus in the womb had developed considerably and, the unborn child had a right to life as per Article 21 of the Constitution of India

    2. Applicant society had volunteered to take care of the child after its birth, thereby ensuring its safe upbringing.

    Woman's Right to Reproductive Choice Falls Under the Ambit of Article 21 and Outweighs the Right to Life of the Child in Womb

    The Bench observed that the Learned Single Judge had not taken the correct perspective into and account. It proceeded to refer to the case of Suchita Srivastava wherein it was held that a woman's right to make reproductive choices was a dimension of personal liberty as per Article 21 of the Constitution of India.

    It was also noted that a child conceived out of rape would cause graver injury to the mental health of a pregnant woman; this was held in the aforementioned case as well as Explanation 1 to Section 3 of the MTP Act.

    "While directing that the rape victim shall deliver the child, the learned 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".

    On the basis of the above, the Bench held that the fundamental right of the pregnant woman would heavily outweigh the right of the foetus to be born.

    Failure to Consider Consequences that the Mother Might Suffer with Forced Pregnancy

    The Division Bench also opined that the Single Bench had failed to consider the requirements of the MTP Act; "fundamental right of the victim with forced pregnancy and the consequences which she would have to suffer after birth".

    It was observed that the decision of the Single Bench had created an irretrievable situation where the unborn child had been brought under the ambit of the Juvenile Justice Act and that the survivor would invariably have to face the consequences and social stigma of giving birth as an unwed mother.

    Due to the forced nature of the pregnancy, the survivor would carry a stigma for the remainder of her life "that the offspring born as a result of the ghastly offence of rape committed upon her, is alive somewhere in this world". The DB further noted that being directed to give up the child to the NGO, the survivor "might carry a constant feeling of remorse in her mind regarding the fate of her child".

    The DB elaborated the aspect of Explanation 1 and stated that:

    "In the present situation, 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".

    Teenage Pregnancies Cause Great Risks to the Well Being of the Mother

    In order to deliberate upon this issue, the DB referred to the Madras High Court case of V. Krishnan v. G. Ranjan (1994) wherein it was observed that medical experts had established the complications that might arise out of teenage pregnancies.

    Grief of Survivor Being Forced to Give Birth without Marriage and then Giving up the Baby

    The Division Bench observed that that there was another dimension of the controversy i.e. the survivor would always carry the grief of not being able to bring up and shower her love upon the child. Additionally, the stigma of being forced to give birth without marriage would also haunt her for eternity, causing her immense mental trauma and putting an indelible mark on her mindset.

    "Looking to the conservative framework of our society, her matrimonial chances are also likely to be severely compromised in such a situation".

    Taking into account that, even in a normal situation, a pregnant woman has a right to demand termination of pregnancy upto 20 weeks as recognized under the MTP Act, the Division Bench held that:

    "We are of the considered opinion that the right of the child rape victim to make the reproductive choice of terminating the foetus heavily outweighs the right of the child in the womb to be born even where the pregnancy is at an advanced stage. Had the question only been of the right of the child in womb to be born, then the same analogy would equally apply to a foetus with known abnormalities because such abnormalities would by themselves not give anyone the right to extinguish the life of a foetus".

    Extensive Directions to Ensure that the Unfortunate Situation does not Recur

    The Division Bench set aside the impugned Judgement and provided the following extensive directions in order to ensure that the situation did not recur:

    "(i) that 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;

    (ii) that 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;

    (iii) 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;

    (iv) 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;

    (v) 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.

    (vi) the identity of the victim shall not be disclosed at any stage during this process."

    The Division Bench concluded the judgment by directing that the survivor would be provided all remedial measures as per the Juvenile Justice Act and that the District Collector of Jodhpur should ensure that the child born to her is brought up with strict adherence to the salutary process of the JJA. It ended on the note that in case the child was not adopted, he/she should be admitted into a good school upon attaining suitable age as per the Right of Children to Free and Compulsory Education Act, 2009.

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