The Rajasthan High Court in a landmark judgement has held that “the right of a child rape victim to make the reproductive choice of terminating the foetus heavily outweighs the right of the child in womb to be born even where the pregnancy is at an advanced stage”. Justice Sandeep Mehta and Dr. Justice Pushpendra Singh Bhati comprised the Division Bench.
A single-judge bench turned down the prayer for termination of the child’s pregnancy. It held that the foetus in womb had a right to life as guaranteed under Article 21 of the Constitution. Furthermore, various other supporting reasons were cited:
- Balance was tilted in favour of child in the womb w.r.t. Right to Life vis-a-vis medical termination of the pregnancy
- Petition filed by mother of rape victim; she could not understand what the expecting mother would be feeling
- An NGO had agreed to take-in the child after its birth.
However, this judgement went against the very principles of MTPA (Medical Termination of Pregnancy Act). Although the Hon’ble High Court couldn’t take steps to help the victim in this case, its judgement wishes to provide better relief to future victims.
A Ripple Effect
Weighing the two i.e. right to life of the child rape victim v/s right to life of the foetus, it was held that in cases where pregnancy is a result of sexual assault, precedence of the former’s rights is of importance. If this pregnancy were allowed, the minor girl’s right to life would be infringed. It would also cause “grave injury” to the mental health of the young victim. Adding salt to this wound is the fact that if the pregnancy is not allowed to be terminated her fundamental right to avoid the after effects of the pregnancy would be permanently extinguished.
She would be forced to go through the trauma of giving birth at such a tender age. Moreover, it is a clear violation of Article 21 of the victim which has sworn to protect a women’s privacy, dignity and bodily integrity. Another after-effect of this predicament; the forced unborn child would fall in the category of a child in need of care and protection under the JJ Act.
Single-Bench at Fault
The Court didn’t appreciate the single-bench’s skewered view on the definition of reproductive choice. It stated that the definition includes both procreation as well as abstention therefrom.
Also, the High Court observed that the remarks by the Bench about the widowed mother were uncalled for. Being the legal guardian of the minor, she was in the perfect position to represent her daughter. Furthermore, Section 3(iv) of the MTPA states that consent of the guardian of minor for termination of pregnancy is enough.
Paving the Way for a New Law
The High Court set the record straight and gave the following directions:
- State Government shall frame guidelines. They must provide timely legal and medical help to rape victims who became pregnant because of the sexual assault.
- Once the complaint of the assault has been filed the Medical Officer/SHO shall forward it to the Full Time Secretary, District Legal Service Authority. He shall then approach the victim with a female counselor. He shall then sensitise her and her guardians about the remedies under the MTP Act.
- If the application for termination of the pregnancy is filed in 20 weeks (as per the Act), it shall be resolved within three days.
- In case the application is filed before a competent court, it shall summon the victim’s guardian forthwith and record his/her consent which shall be deemed to be final. No police intervention is required in such cases.
- In case the 20-weeks deadline expires, the Full Time Secretary, District Legal Services Authority shall assist the victim’s guardian in filing the application in the High Court.
- Protection of the victim’s identity is a must at all stages of the process.