Orissa HC slams State for failing to act earlier in pregnant differently-abled rape survivor's case; issues guidelines [Read Order]

The Orissa High Court recently refused permission to terminate the pregnancy of a physically and mentally challenged 22-year-old woman, a survivor of sexual assault..The Court has also issued a slew of directions for the State to follow when faced with cases of pregnancies arising from rape..The guidelines issued include:.During the eight-week period, the Police and the Chief District Medical Officer are to ask the rape survivor whether she wants to continue with the pregnancy. If the survivor is unable to take a decision because of a disbility or if she is a minor, the mother of the survivor is required to communicate a decision.If the woman or her mother have stated that she desires to terminate it, this is to be done expeditiously by the CMDO as per the Medical Termination of Pregnancy Act, 1971.The DNA of the child is required to be collected as a part of investigation. If she desires to continue the pregnancy, the State is to provide her support till a year after the birth and take her to a Rehabilitation and Support Home for the Birth, if she so desired. If the woman is unable to care for her child and no family member is willing, the State is to take the child into a Juvenile Home.The child is not permitted to be given up for adoption within a year of his/her birth.The survivor and her child are directed to be adequately compensated by the State, in addition to compensation under the Victim Compensation Act.POCSO Guidelines are to be adhered to.The State has been directed to ensure that these decisions are taken expeditiously. A failure to take appropriate steps would result in penalties, the Court has said.."In the entire process, all concerned will ensure that secrecy of pregnancy, anonymity of the petitioner and the child to be born is maintained. In cases it shall equally be the responsibility of the applicant society to ensure that the child does not know about his/her mother and of course about the incident."Orissa High Court, speaking on when the child is given up to the State..Taking note of the woman's severe intellectual and physical impairment in this case, as also the fact that the rape was brought to the State's notice by the sixteenth week of pregnancy, Justice Biswanath Rath remarked:."Had there been proper care taking resort to the provisions of the Act, 1971 since it was hardly 16 weeks by then, the unwanted pregnancy could have been avoided. For the negligence of the Public Authority, may not be intentional and carelessness, the victim so also the child to come are to suffer immensely including mental torture and also social stigma throughout their life...nothing prevented the Public Authority at least to ask the mother of victim for involvement of mental condition of the victim and pregnancy of an unmarried victim of rape.".Since the pregnancy had extended beyond the twenty-week period presently permitted to allow termination of pregnancy, the victim's case was referred to a Committee of Medical Professionals and a Psychiatrist. .The Committee recommended that the pregnancy be continued, since any attempt to terminate the pregnancy at the 24-week stage could threaten the life of the woman..Relying on the Medical Report, the Bench deemed it harmful to the woman's health to permit a medical termination..Distinguishing the case at hand from previously-decided cases that spoke of a woman's autonomy in choosing whether to continue or terminate her pregnancy, the Court found that in the other cases Medical Reports had supported the termination of pregnancy. In the case at hand medical termination was not medically advisable..However, Justice Rath specifically took notice of the fact that the situation was forced upon her, and said,."... this Court while declining termination of pregnancy for the complications involved herein is obliged to observe that the pregnancy on the victim is forced one and it being contrary to her choice. The victim has been forced not only to carry an unwanted pregnancy but is also forced to give birth to the child against her will. No doubt she will carry a stigma and humiliation for the rest part of life for the offspring born as a result of ghastly recurrence of rape committed on her along with stigma and humiliation on the child and in case it is a female child, looking to the complex society, it is still worse.".The Court took on record the petitioner/ survivor's mother's submission that she was willing to care for the child provided she was allowed financial assistance from the State..Therefore Court issued a set of directions to ensure the safety of the woman and her unborn child..Medical care, accommodation, travelling expenses were to be provided by the State.The petitioner and her husband, who was a daily wage worker, were to be given State support and assistance.The child's nutritional and educational needs were to be shouldered by the StateA sum of Rs. 5 Lakh was directed to be deposited as a fixed deposit in a Nationalised Bank for the woman's use throughout her life. The account was to be managed by the petitioner-mother.A sum of Rs. 3 Lakh to be paid to the woman if she delivered a boy and Rs. 5 Lakh in the event she gave birth to a female child. The amount was also directed to be deposited as a fixed deposit in the child's name, to be operated and used by the petitioner for the child's welfare.The sums were to be additions to any compensation received under the Victim Compensation Scheme prescribed under provisions of the Criminal Procedure Code.The District Legal Services authority has been tasked with ensuring the petitioner mother did not mismanage funds..With this, the Bench partly allowed the appeal..Justice Rath recorded his appreciation for the arguing counsel for their assistance..Advocates Subhash Chandra Puspalaka, AK Tarai, T Priyadarshini and T Barik represented the petitioner while the State was represented by Additional Standing Counsel BR Behera and Government Advocate Jyoti Prakash..Read the Judgment here: