The Kerala High Court recently comprising of a bench of JusticeBechu Kurian Thomas allowed a 13-year-old survivor of sexual assault to terminate her 26-week-old pregnancy. The Bench allowed the petition moved by the father of the child in a special sitting. (XXX Vs. State Of Kerala And Others)
The bench remarked that the pregnancy might remind the minor of the rape and it is not in the interest of society to have her undergo the trauma everyday.
The bench said, "It (the pregnancy) may even have the possibility of reminding the victim of the incident of rape. It is obviously not in the interest of society to have this young victim undergo the trauma of the incident of rape everyday in her life. The anguish that the pregnancy causes to her will be lifelong and she may have to live with the traumatic experience throughout her life".
Facts of the case
The case pertains to a minor, who was taken to a hospital after complaining of stomach pain. After physical examination, the doctor noticed that the girl was almost six months pregnant. Following this, her parents registered a complaint with the police station.
Investigation revealed that the offence was committed by the 14-year-old sibling of the victim and a report in this regard was filed before the Juvenile Justice Board. According to the birth certificate of the girl, her month of birth was July, 2007. The scan report dated April 1, 2021 showed the foetus as 24 weeks and four days old.
Contending that the petitioner’s daughter was a victim of rape by her own brother, the father of the victim approached the High Court, seeking a direction to terminate the pregnancy of his daughter.
Contention of the parties
The Petitioner contended that the victim was in fact born as a premature child and has other medical conditions which would also aggravate if the pregnancy is not terminated.
The young age of the victim, the consequences pregnancy will force upon the victim, her parents and even the unborn child are matters which this Court cannot ignore.
As found in many of the above-referred cases, the minor victim, in this case, is also not prepared to deliver a child in the given situation. The threat of severe mental injury to the victim is statutorily presumed under the Explanation to Section 3 of the Act.
In view of the trauma that the minor girl has undergone and taking note of the opinion of the medical board, I am of the view that the writ petition ought to be allowed permitting termination of pregnancy to be performed on the daughter of the petitioner.
On the other hand, pursuant to the direction mentioned above, the learned Government Pleader has made available the report of the Medical Board. The observations of the Medical Board were as follows:
The Medical Board went through the records of the rape victim aged 13 years (IP No.7292/IMCH), examined the patient and arrived at the following observations:
As per the MTP Act 2021, she is beyond the limit of legal MTP (Gestational age by Ultrasound Scan is 26 weeks and 6 days) If MTP is considered she stands a number of medical risks.
Courts Observation and judgment
The Court ordered the constitution of a Medical Board to ascertain the possibility of performing medical termination of pregnancy on the victim. The Board found that the termination would involve the risk of the foetus being born alive, of the need for multiple inductions and interventions if the induction failed. Subject to this risk, the Board submitted that the termination could be allowed.
The Court pointed out that the termination of pregnancy was allowed if a Medical Board opined that continuing the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical and mental health or there is substantial risk to the child after born.
Additionally, Explanation 1 to Section 3 specifies that if the pregnancy is caused on account of a rape committed on the woman, it shall be presumed that the anguish caused by the pregnancy would constitute a grave injury to the mental health of the pregnant woman, the Court said. The words used in explanation is "shall be presumed".
The bench explained,
"The word "shall be presumed" created as a statutory presumption clearly shows the intention of the legislature. In the case of rape, the anguish on account of the pregnancy is statutorily regarded as a grave injury to the mental health of the pregnant woman, sufficient to terminate the pregnancy on the basis of opinion of two registered medical practitioners".
The bench referred to the judgment in the case of Ms. X v. State of Kerala and Others. [2016 (4) KLT 745] where the Court ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child, in order to save their lives. It further referred to the case of Meera Santosh Pal v. Union of India [(2017) 3 SCC 462] where the permission was granted when the pregnancy crossed 24 weeks, in view of the medical reports pointing out the risk involved.
The Court in view of the trauma that the minor girl has undergone and taking note of the opinion of the medical board, allowed the writ petition permitting termination of pregnancy to be performed on the daughter of the petitioner.
The Court reasoned that allowing the pregnancy to continue would be traumatic for the child as well as her parents. The child's parents also sought for the termination of the pregnancy, citing their child's trauma and possible genetic disorders upon the unborn child by reason of the survivor's close relationship with the alleged perpetrator.
The Court held, "In view of the trauma that the minor girl has undergone and taking note of the opinion of the medical board, I am of the view that the writ petition ought to be allowed permitting termination of pregnancy to be performed on the daughter of the petitioner."
The court ordered,
"There will be a further direction to the doctors to take the tissue of the foetus for DNA identification and maintain the same intact for future purposes, especially due to the fact that a criminal case is pending in the instant case.
The Registry and all concerned, shall see that absolute privacy is maintained with respect to the identity of the petitioner while issuing the certified copy of the judgment or otherwise. There shall be a direction that copy of the writ petition, affidavit, the documents annexed to it and the medical report shall not be issued to any third person without obtaining orders from this Court."
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