Can't force rape survivor to give birth to child of rapist: Kerala High Court

The Kerala High Court recently observed that denying a rape survivor permission to terminate a pregnancy caused by rape would amount to denying her the right to live with dignity [XXXXXXXXXX v. Union of India & Ors.]..Justice Kauser Edappagath noted that as per the provisions of the Medical Termination of Pregnancy Act (MTP Act) a rape survivor cannot be forced to give birth to the child of a man who raped her."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," the Court said. .The Court also highlighted the trauma caused to women if they are forced to carry an unwanted pregnancy to term."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. [see XYZ v. State of Gujarat]," the Court explained in its judgment. .The judgment was rendered on a petition moved by a 16-year-old rape survivor through her mother. It was alleged that when the girl was studying in the 9th standard, she was sexually abused by her 19-year-old "lover" and became pregnant.A case was registered against the man alleging the commission of offences punishable under Section 376 (rape) of the Indian Penal Code (IPC) and various provisions of the Protection of Children from Sexual Offences Act (POCSO Act) and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (SC/ST Act)Since the MTP Act only allows termination of pregnancy until the 24th week (except in certain circumstances) the minor survivor approached the Court seeking permission to medically terminate her 28-week pregnancy..The Court at the outset observed that the right to make autonomous decisions about her reproductive functions is at the core of every woman and girl's fundamental right to equality and privacy."Reproductive rights include the right to choose whether and when to have children, the right to choose the number of children and the right to access to safe and legal abortions", the Court underscored. The Court then went through the report of the medical board that was constituted to examine the pregnant girl and noted that the board opined that continuation of the pregnancy may be detrimental to her mental and physical health. The Court also took note of the fact that the survivor belonged to a scheduled caste community and said that the possibility that she might be isolated could not be ruled out. Therefore, the Court granted her permission to terminate the pregnancy and issued appropriate directions in that regard. If the foetus is found to be alive after the procedure, the hospital has been directed to care for the foetus. In such a scenario, the State has been directed to assume full responsibility and offer medical aid to the child in keeping with the provisions of the Juvenile Justice (Care and Protection of Children) Act. .The petitioner was represented by advocate Shameena Salahudhee.Senior Government Pleader Deepa Narayanan appeared for the State and Senior Panel Counsel TC Krishna appeared for the Union of India. .[Read Judgment]