A Rape Victim Can’t Be Forced To Give Birth To A Child Of Man Who Sexually Assaulted Her: Kerala HC

The Kerala High Court observed that a rape victim cannot be forced to give birth to a child of a man who sexually assaulted as it amounts to violation of Right to live with dignity under Article 21 of the Constitution.

The Court observed thus in a writ petition filed by a 16-year-old rape victim who did not want to give birth to the child of a man who sexually assaulted her and had approached the court through her mother, seeking permission for medical termination of her pregnancy.

A Single Bench of Justice Kauser Edappagath held, “Section 3(2) of the MTP Act provides that if the continuance of the pregnancy would cause grave injury to the physical or mental health of the pregnant woman, the pregnancy can be terminated. Explanation 2 of section 3 (2) says that where the pregnancy was caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Hence, a rape victim cannot be forced to give birth to a child of a man who sexually assaulted her. Declining permission to a rape victim to medically terminate her unwanted pregnancy would amount to forcing her with the responsibility of motherhood and denying her human right to live with dignity which forms a significant part of the right of life guaranteed under Article 21 of the Constitution.”

Advocate Shameena Salahudheen represented the petitioners while Senior Government Pleader Deepa Narayanan and Senior Panel Counsel T.C. Krishna represented the respondents.

In this case, it was alleged that the victim while studying in the XI standard was sexually abused by her 19-year-old lover and became pregnant. A crime was registered based on the intimation from the Doctor under Section 376 of the Indian Penal Code (IPC) and Sections 4(1), 3(a), 3(b), 6(1), and 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2019 (POCSO Act) and Sections 3(1)(w)(i), and 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST). The victim was in her 28th week of pregnancy and hence, permission to terminate the pregnancy was sought on the ground that the continuation of the same would adversely affect the mental and physical well-being of the victim as well as the child.

The High Court in the above regard noted, “Pregnancy outside marriage, in most cases, is injurious, particularly after sexual abuse and is a cause for trauma affecting both physical and mental health of the pregnant woman, the victim. Sexual assault or abuse of a woman is itself distressing and the resultant pregnancy compounds the injury. This is because such a pregnancy is not a voluntary or mindful pregnancy.”

The Court further noted that in the report of the Medical Board, it was pointed out that continuance of pregnancy may be detrimental to the physical and mental health of the victim and the psychiatrist who was part of the Medical Board opined that the continuation of the pregnancy may result in severe psychological trauma to the victim.

“The adverse impact of the continuance of the pregnancy on the victim's mental health and the resultant trauma could very well be inferred as she is a rape survivor. The family of the victim girl belongs to a scheduled caste community. It is stated in the writ petition that poor family members including the victim girl are in a state of shock over the turns of events. The victim is now housed at the Childcare Home and it is stated that she is not mentally prepared to accept the state of affairs and deliver the child”, it added.

The Court also observed that the social isolation of a minor girl before the SC/ST community who is subjected to sexual assault and giving birth to a child at such a young age cannot be ruled out. It, therefore, granted relief as sought and permitted the victim to undergo medical termination of pregnancy.

The Court directed the Medical College to take immediate measures for constituting a medical team to conduct the procedure and carry out the termination of pregnancy.

“The petitioner shall file an appropriate undertaking, authorising to conduct the surgery at her risk. … After terminating the victim's pregnancy, the 5th respondent shall preserve the foetus for carrying out the medical test for the purpose of criminal case pending against the accused … If the foetus is found to be alive at birth, the hospital shall give all necessary assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives. Further, the baby is to be offered the best medical treatment available so that it develops into a healthy child”, it ordered.

The Court concluded that if the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical aid to the child, as may be reasonably feasible, keeping in mind the best interest of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.

Accordingly, the High Court disposed of the writ petition.

Cause Title- XXXXXXXXXX v. Union of India & Ors. (Neutral Citation: 2024:KER:32175)

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