Gujarat High Court invokes 'Durga Saptashati' while allowing 11-year-old girl raped by father to abort 26-week pregnancy

The Gujarat High Court on Wednesday permitted a 11-year-old girl who was raped by her own father to medically terminate her 26-week-old pregnancy [XYZ vs State of Gujarat]..Single-judge Justice Samir Dave while allowing the application victim's plea for abortion, invoked the Hindu religious text Durga Saptashati”, also known as “Devi Mahatmya" to highlight the reverence towards women. The Court said that one of the best ways to understand the spirit of a civilization is to study the history about the position and status of women in it. The earliest materials found by archaeological excavations dating back to ancient India suggests about the worship of goddesses, the single-judge noted.“Durga Saptashati” is one of the earliest extant complete manuscripts from the Hindu traditions, which describes reverence and worship of the feminine aspect of God, the Court said."The text is believed to be both a culmination of centuries of Indian ideas about the divine feminine as well as a foundation for the literature and spirituality focused on the feminine transcendence in centuries that followed," the single-judge observed.The bench referred to a verse in the text and explained the meaning of the said verse in Hindi, as: "अर्थाात हे देवी जगदम्बे, जगत में जितनी भी स्त्रिया हैं वह सब तुम्हारी ही मुर्तिया हैं । इसस्त्रिलए अगर स्त्री चाहे तो वह सब कर सकती हैं जो वह करना चाहती हैं , यह ताकत सर्फ़ उसीमे हैं जो बडे बडे संकटों का नाश कर, श्रेष्ट से श्रेष्ट और कठिनतम कार्य भी पूर्ण कर सकती हैं। जरुरत हैं तो सर्वशक्तिमान नारी को स्वयं को पहचानने को।" (Devi Jagdambe, all the women in the world are your idols. That's why if a woman wants, she can do whatever she wants, this power is only in those who by destroying the biggest problems, she can complete even the best and most difficult tasks. There is a need, for the all-powerful woman should recognize herself)Further, the Court said that touching a woman without her permission is the biggest insult to her dignity."There is no higher insult to a woman than trying to touch her dignity. In this case, it is very shocking and painful that the victim who is a 11 years and 9 months old girl child, has been subjected to a heinous crime by none else but her own father," Justice Dave lamented. With these observations, the Court permitted the survivor to undergo medical termination of pregnancy..Considering the survivor's tender age and the fact that she has to undergo strenuous mental and physical agony, the bench ordered the State to pay a compensation of ₹2.5 lakh within a period of two months. The bench had earlier constituted a medical board to examine the foetus and also assess the mental health of the survivor. The medical board opined that there was no general anomaly or deformity in the foetus. It, however, found that the minor girl is having clinically average intelligence and said she is under stress due to unwanted catastrophic event and pregnancy. "Her mother feels continuation of pregnancy will be stressful and embarrassing for her and their family and will impact patient’s mental health. She has expressed her desire for termination of pregnancy of her daughter. The child needs mental health professionals' help in ongoing care," the Court noted.Hence, though she is having uncomplicated pregnancy, risks of development of complications in future are higher than in usual cases due to her young age, the Court said.Therefore, it allowed the plea for abortion..This is not the first time when Justice Dave has invoked a religious text while dealing with a rape survivor's plea to abort her 'unwanted' pregnancy.On June 9, Justice Dave had invoked Manusmriti to emphasise how girls in the past were married off by the age of 14 to 16 years and would have given birth to at least one child by the age of 17. The judge was criticised for his reference while hearing the rape victim's plea. However, he responded to the criticism by invoking Bhagavad Gita and said a judge must be like a "Stithaprajna" which means one should ignore both criticism as well as appreciation..Advocate Poonam M Maheta appeared for the rape survivor..[Read Judgment]