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Woman Entitled to Termination of Pregnancy in Rape Cases: Delhi HC

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Sanjeev Sirohi

Published on: 26 January 2023 at 12:54 IST

While speaking most vocally, most forthrightly, most commendably and most courageously, the Delhi High Court in a most laudable, learned, landmark and latest oral judgment titled Minor R Thr Mother H vs State NCT of Delhi & Anr in W.P.(Crl) 221/2023 pronounced as recently as on January 25, 2023 has observed that denying a woman the right to medical termination of pregnancy in sexual assault cases and imposing the responsibility of motherhood on her, would amount to “denying her the human right to live with dignity” as she has a right in relation to her body including the right to say “yes or no” to being a mother.

It must be noted that the Single Judge Bench of Hon’ble Ms Swarana Kanta Sharma said that to force the victim to give birth to the child of a man who sexually assaulted her would result in “unexplainable miseries”. There can be just no denying or disputing what the Bench has held so elegantly, eloquently and effectively in this leading case!

At the very outset, this brilliant, best, balanced and boldest judgment authored by the single Judge Bench comprising of Hon’ble Ms Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner, a minor, has approached this Court through her mother under Article 226 of Constitution of India, praying for issuance of directions by virtue of writ of Mandamus to the Respondents to conduct medical termination of her pregnancy under Medical Termination of Pregnancy Act, 1971, as amended in 2021 (hereinafter―MTP Act).”

To put things in perspective, the Bench envisages in para 2 that, “Facts and circumstances compelling the petitioner to file the instant petition are that in the month of September 2022, the minor child R, i.e. petitioner, who is aged around 14 years, was sexually assaulted and raped by the accused named in the FIR,”.

“Initially, though the petitioner missed her period for four months, she did not inform her mother about the same as she was scared. However, after her mother H noticed the physical changes in her, she had disclosed to her mother about the sexual assault,”.

“At the instance of petitioner/victim R, an FIR bearing no. 76/2023 was registered at Police Station Shalimar Bagh under Sections 376/328 of Indian Penal Code, 1860, and Section 4 of Protection of Children from Sexual Offences Act, 2012.”

As it turned out, the Bench then discloses in para 3 that, “Thereafter, the petitioner was taken to BJRM Hospital for her MLC and her UPT was conducted which was found to be positive. On 19.01.2023, when she underwent a Medical Test/USG from a Diagnostic and Imaging Centre, she was found to be 24 weeks and 5 days pregnant,”.

“The Investigating Officer on 20.01.2023 approached the Child Welfare Committee-X, District-Outer North & North West Delhi, Alipur and the petitioner along with her mother were produced before the Board, whereby they stated that they do not wish to continue with the pregnancy of the petitioner and that she wishes to continue her education. However, on perusing the case of the petitioner, it was found that she was beyond the permissible gestational age limit under the MTP Act, 1971, hence she was directed to approach this Court and seek judicial intervention.”

To be sure, the Bench then states in para 7.1 that, “The statutory law, under Section 3 of MTP Act provides that termination of pregnancy of a woman where it exceeds 20 weeks but does not exceed 24 weeks can only be allowed in special categories, and where the medical practitioners are of the opinion that continuance of such pregnancy would either involve a risk to the life of the women or cause grave injury to her physical health or grave injury to her mental health,”.

“The categories under which pregnancy can be terminated where pregnancy is between 20 to 24 weeks has been prescribed by the Central Government under the Medical Termination of Pregnancy, Rules 2003 [as amended by Medical Termination of Pregnancy (Amendment) Rules, 2021], wherein seven categories have been provided which are as under: –

3B. Women eligible for termination of pregnancy up to twenty-four weeks.— The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub- section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.‖ (Emphasis supplied).”

Quite ostensibly, the Bench points out in para 7.2 that, “A perusal of the aforesaid Rule reveals that clause (a) relates to victims of sexual assault, rape or incest and clause (b) relates to minors,”.

“In the present case, the victim falls under both, i.e. clause (a) and (b) as she is a minor aged around 14 years, who is alleged to have been raped. Therefore, the victim would fall under the special categories as enumerated by the Central Government under the rules notified as per the mandate of section 3(2)(b) of MTP Act.”

Quite naturally, the Bench  then states succinctly in para 7.3 that, “Furthermore, Explanation 2 to the aforesaid provision explicitly provides that where pregnancy is alleged to have been caused by an act of rape, the anguish caused by such a pregnancy shall be presumed to constitute grave injury to the mental health of pregnant woman as required under Section 3(2)(i) of MTP Act,”.

“Therefore, it is not in dispute that in case of a minor victim who is alleged to be sexually assaulted or raped and as a consequence of which she has conceived, the injury that is caused to her mental health is presumed even statutorily.”

Be it noted, the Bench observes in para 8 that, “Mother of the victim child is also present in the Court and since the petitioner is carrying pregnancy beyond the permissible limit of 24 weeks as per amended act, the consent of the guardian of the minor child is required,”.

“On 24.01.2023, when the petition had come up for hearing, considering the urgency in this matter, and the fact that after the last medical examination of victim child on 19.01.2023 when she was found to be about 24 weeks and 05 days pregnant, one more week had already passed, this Court had deemed it appropriate to ask the mother of the victim child in Court itself as to whether she has consent for the medical termination of pregnancy to take place in this case, in a hospital which has a board so constituted for this purpose. The statement of the mother H of victim child R was accordingly recorded by this Court.”

Do also note, the Bench lays bare in para 10 that, “Under similar circumstances, the Hon’ble Apex Court in Venkatalakshmi v. State of Karnataka, Civil Appeal 15378/2017, dated 21.09.2017, as well as Co-ordinate Benches of this Court in Ms X through Her Legal Guardian v. Government of NCT of Delhi & Anr., 2022 SCC OnLine Del 2642and in Surekha Gautam Khobragade v. State of NCT of Delhi Through Department of Health and Family Welfare, W.P. (Crl.) 69/2021, dated 18.01.2021 had also allowed termination of pregnancies of more than 24 weeks in cases of rape victims.”

Most forthrightly, the Bench states in para 12 that, “In the case of sexual assault, denying a women right to say no to medical termination of pregnancy and fasten her with responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother,”.

“Section 3(2) of the MTP Act reiterates that right of a woman. To force the victim to give birth to child of a man who sexually assaulted would result in unexplainable miseries. One will shudder to think what a victim who is carrying such fetus in her womb must be going through each day, being reminded constantly of the sexual assault that she has undergone,”.

“Cases where sexual assault results into pregnancy of the victim are even more traumatic as the shadow of such tragic moment lingers on each day with the victim. It is this mental agony which has been taken into account by the MTP Act which lays emphasis on not only grave physical injury but also mental health of a pregnant woman. It therefore provides under Section 3(2)(i) that if the continuance of pregnancy would involve grave injury to the mental health of a pregnant woman, she can legitimately seek to terminate the same.

In furtherance of the same intent, Section 3(2) Explanation 2 of the MTP Act provides that – 

“Explanation 2.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.‖

The present case stands covered under this explanation.”

Quite unambiguously, we see that the Bench notes in para 13 that, “In this context, it is not in dispute that a female invariably has a right to make reproductive choices and decisions which are concerned with her bodily integrity and autonomy. Reliance in this regard can be placed upon the decision of the Hon’ble Apex Court in X v.

The Principal Secretary Health and Family Welfare Department & Anr., SLP (C) No(s).12612/2022 dated 21.07.2022, and Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1. The Hon’ble Apex Court in Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors. (2017) 10 SCC 1, has also observed that the choice regarding procreation is an integral part of right to dignity enshrined under Article 21 of Indian Constitution.”

Most remarkably, the Bench holds in para 14 that, “This Court takes note of the fact that Article 21 of the Constitution of India dealing with right to life invariably includes a life lived with dignity. The child herein is a victim of rape,”.

“Termination of pregnancy in cases, like present one, cannot be reduced merely to be defined as right of a woman sexually assaulted, but also to be recognized as a human right, as it affects dignified existence of a victim if the same is not permitted,”.

“It is not the privacy of the rape victim which is invaded by sexual assault, but her body is wounded and her soul is scared. It would not be appropriate to expect the minor victim who is a rape victim to take the burden of giving birth and raising a child, especially in a situation where she herself is passing through the age of adolescent,”.

“Doing so, will amount to asking a child to give birth and raise another child. Given the social, financial, and other factors that are immediately associated with the pregnancy, an unwanted pregnancy would surely have an impact on victim’s mental health.”   

It is worth noting that the Bench notes in para 15 that, “The Child Welfare Committee report, annexed with the instant petition, regarding interaction with the child is on record. Perusal of the same as well as interaction with the child and the mother with this Court, disclosed that the child has studied upto 5th standard and after return from the village, she has not been able to continue her studies, though she wants to study further,”.

“Having no permanent place to stay, the mother and the victim child are the victims of circumstances and misfortune which has befallen the young lady of tender years,”.

“Sexually assaulted in absence of her mother who had gone to work, she was too scared to seek help or to even inform her mother about sexual assault fearing the consequences. Unfortunately, she was not aware due to her tender age that non-disclosure of this fact may further invite a more miserable situation which may be difficult to fix.”

What’s more, the Bench then mandates in para 16 that, “In these circumstances, this Court is inclined to direct as under:

i. The petitioner/victim shall make herself available at 11:00 AM on 27th January, 2023 before the competent authority of Ram Manohar Lohiya Hospital, New Delhi for the purpose of medical termination of her pregnancy;

ii. The Superintendent, Ram Manohar Lohiya Hospital, New Delhi and the Medical Board will ensure that the termination of pregnancy of the minor victim/petitioner is undertaken by competent doctors in accordance with the provisions of the MTP Act, its rules and all other rules, regulations and guidelines prescribed for the purpose;

iii.   A complete record of the procedure which will performed on the petitioner for termination of her pregnancy shall be maintained by the Medical Board;

iv. The doctors concerned shall also preserve the tissue of the foetus as the same may be necessary for DNA identification and other purposes, in reference to the criminal case which is registered against the accused by the petitioner/victim;

v. The State shall bear all the expenses necessary for the termination of the pregnancy of the petitioner, her medicines, food etc.;

vi. If the child is born alive, despite the attempts at medical termination of the pregnancy, the doctors concerned shall ensure that everything, which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose, is offered to such child so that he/she develops into a healthy child.”

It cannot be glossed over that the Bench notes in para 24 that, “It is also pertinent to note that the victim child was carrying pregnancy of 25 weeks when she was produced before this Court.

Due to financial constraints, they were able to file a writ petition only through Delhi High Court Legal Services Committee. In these circumstances, this Court feels that crucial time is lost in the process of passing orders for medical examination of victim by a board in case of 24 weeks or above of pregnancy due to sexual assault which further endangers her life.

24.1. Considering the same, this Court passes the following guidelines to be followed by the investigating officers, in cases where pregnancy exceeds 24 weeks, which will be circulated through the Commissioner of Police to all investigating officers concerned:

i. At the time of medical examination of a victim of sexual assault, it will be mandatory to conduct a Urine Pregnancy Test, as in many cases, this Court has noticed that such test is not conducted.

ii. Upon the victim being found pregnant due to sexual assault, and in case the victim is major gives her consent and expresses her desire for conducting medical termination of pregnancy, the concerned investigating officer will ensure that on the same day, the victim will be produced before such Medical Board envisaged under Section 3 of MTP Act, which this Court has been informed is constituted in following four hospitals in Delhi: (i) All India Institute of Medical Sciences (AIIMS), New Delhi, (ii) Dr. Ram Manohar Lohia Hospital, New Delhi, (iii) Safdarjung Hospital, New Delhi, and (iv) Lok Nayak Jai Prakash Narayan Hospital, New Delhi.

iii. In case a minor victim of sexual assault is carrying pregnancy, upon the consent of her legal guardian and desire of such legal guardian for termination of pregnancy, the victim will be produced before such Board.

iv. In case a minor victim is examined by such Board, appropriate report will be placed before concerned authorities, so that if an order is being sought regarding termination of pregnancy from the Courts, the Court concerned does not lose any more time and is in a position to pass an order on the same expeditiously.

v. As per Section 3(2C) and 3(2D) of MTP Act, it is mandated that the State Government or Union Territory has to ensure that the Medical Boards are to be constituted in the hospitals.

The Court is informed that such boards are not available in hospitals in each district, causing inconvenience to the Investigating Officers as well as to the victim at times who has to be taken for MTP and for further examination.

Thus, State Government/Union Territory should ensure that such mandate of Section 3(2C) and 3(2D) of MTP Act, are complied with and such Boards are constituted in all Government Hospitals which have proper MTP Centres and it should be mandatory to have such Boards constituted before hand.

24.2. The Ministry of Health Affairs, Government of NCT of Delhi and Union Ministry for Health Affairs will share the compliance of the aforesaid guidelines/directions with this Court within two months.”

In conclusion, we thus see for ourselves that the Delhi High Court has laid down so very commendably, cogently and convincingly in this notable case that a woman is entitled to termination of pregnancy in rape cases.

It is also made absolutely clear by Hon’ble Ms Justice Swarana Kanta Sharma that she has the right to say ‘yes’ or ‘no’ to being a mother! Very rightly so!  

Sanjeev Sirohi, Advocate