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Kerala High Court Upholds Rights And Dignity Of Sexual Assault Victims: Ensuring Access To Safe And Legal Abortions

Ansana JM ,
  11 May 2024       Share Bookmark

Court :
High Court Of Kerala
Brief :

Citation :
WP© NO. 16366 OF 2024

Case title:

X v. Union of India

Date of Order:

4 MAY 2024

Bench:

DR. JUSTICE KAUSER EDAPPAGATH

Parties:

Petitioner : X

Respondent : Union of India

SUBJECT : 

A 16-year-old rape victim who does not want to give birth to the child of a man who sexually assaulted her has approached the High Court of Kerala through her mother seeking permission for medical termination of her pregnancy.

IMPORTANT PROVISIONS :  

  • Indian Penal Code, 1860

Section 376 – punishment for rape 

  • Protection of Children from Sexual Offences( amendment) Act (POCSO ACT), 2019

Section 4 –  Punishment for penetrative sexual assault

Section 3 – Penetrative sexual assault

Section 6 -  Punishment for aggravated penetrative sexual assault

Section 5(j)(ii) –  penetrative sexual assault on a child, which in the case of female child, makes the child pregnant as a consequence of sexual assault.

  • Medical Termination of Pregnancy Act, 1971

Section 3 – When pregnancies may be terminated by registered medical practitioners.

Section 3 (2)- the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health

  • Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Section 3(1)(w)(i) – Punishments for offences atrocities

  • The Constitution of India, 1950

Article 21 – Right to life and personal liberty

OVERVIEW

  • A 16-year-old rape victim, supported by her mother, approached the court seeking permission for a medical termination of her pregnancy. The victim, who was allegedly sexually abused by her 19-year-old lover while studying in the XIth standard, found herself in her 28th week of pregnancy. A crime was registered against the perpetrator based on the doctor’s report from Pariyaram Medical College, under various sections of the Indian Penal Code (IPC), Protection of Children from Sexual Offences (POCSO) Act, 2019, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
  • The petition for termination was based on the grounds that the continuation of the pregnancy would adversely affect the mental and physical well-being of both the victim and the child. The court heard arguments from the petitioner’s counsel, the counsel for the respondent, and the government pleader representing respondents 2 to 5.
  • The legal framework surrounding abortion in India was discussed, tracing back to the legalization of safe abortions with the enactment of the Medical Termination of Pregnancy Act, 1971 (MTP Act). The MTP Act allows licensed medical professionals to perform abortions in specific situations, including cases of danger to the woman’s life or health, pregnancies resulting from rape, and substantial risk of deformities or diseases to the child. Amendments in 2021 extended the gestational limit to 24 weeks for certain categories of women, such as rape survivors.
  • The court emphasized the fundamental right of women to make autonomous decisions about their bodies and reproductive functions, citing landmark judgments that recognized reproductive rights as integral to personal liberty and bodily autonomy under Article 21 of the Constitution of India.
  • Medical assessments revealed potential harm to the victim’s physical and mental health if the pregnancy continued. The court acknowledged the trauma associated with rape and unwanted pregnancy, asserting that denying permission for termination would amount to forcing the victim into motherhood and violating her right to live with dignity.
  • Despite the MTP Act’s gestational limit, the court invoked its wider powers to permit termination, citing previous cases where courts allowed termination even after the prescribed limit. The decision prioritized the victim’s well-being and autonomy, considering her age, the circumstances of the pregnancy, and the potential social and psychological impact on her and her family.
  •  The court issued directives for the termination procedure, including arrangements for a medical team, preservation of the foetus for forensic examination, and provision of medical assistance for the foetus if born alive. It also outlined responsibilities for the petitioner, the state, and its agencies regarding the care of the child, if needed.
  •  The decision underscored the court’s commitment to protecting the rights and dignity of victims of sexual assault, especially minors, and ensuring access to safe and legal abortions in cases of rape or unwanted pregnancies. It also highlighted the role of the Child Welfare Committee in providing support and assistance to the victim and her family during their hospital stay.

ISSUES RAISED 

  • Whether the court can allow termination of pregnancies even in cases where pregnancy has exceeded the limit of 24 weeks?
  • Whether reproductive choices are a part of personal liberty under Article 21? 
  • Whether the court can invoke wider powers under Article 226 ?

ARGUMENTS ADVANCED BY THE APPELLANT

  • The petitioner, represented by Smt. Shameena Salahudeen, argued for the termination of the pregnancy on behalf of the 16-year-old rape victim.
  • Their primary contention was that continuing the pregnancy would severely impact the mental and physical well-being of both the victim and the child. They cited the provisions of the Medical Termination of Pregnancy Act, 1971 (MTP Act), which allows for abortion in specific circumstances, including pregnancies resulting from rape or sexual assault.
  • They also emphasized the fundamental right of women to make autonomous decisions about their bodies and reproductive health, as enshrined in Article 21 of the Constitution of India.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • Sri. T.C. Krishna, the learned senior panel counsel representing the 1st respondent, likely argued against the termination of the pregnancy. 
  • While the specific arguments of the respondent are not provided in the text, one could speculate that they may have raised objections based on legal, ethical, or religious grounds. 
  • They might have contested the interpretation of the MTP Act and argued that the pregnancy should not be terminated beyond the prescribed gestational limit, which was extended to 24 weeks for certain categories of women. Additionally, they may have raised concerns about the potential viability of the foetus if born prematurely and the ethical implications of terminating a pregnancy at a late stage.

JUDGEMENT ANALYSIS 

  • The case presented involves a 16-year-old rape victim seeking permission for the medical termination of her pregnancy, which has reached 28 weeks. This scenario presents a complex interplay of legal, ethical, and social issues surrounding reproductive rights, bodily autonomy, and the protection of victims of sexual violence.
  • Firstly, it’s important to address the legal framework within which this case operates. The Medical Termination of Pregnancy Act, 1971 (MTP Act) provides a legal basis for abortions in specific circumstances, including pregnancies resulting from sex crimes like rape or incest. The recent amendment allowing abortions up to 24 weeks for certain categories of women, including rape survivors, reflects a recognition of the traumatic nature of such pregnancies and the need for compassionate legislation to address them.
  • Furthermore, the fundamental right to reproductive autonomy and bodily integrity, enshrined in Article 21 of the Indian Constitution, forms the cornerstone of the petitioner’s argument. The Supreme Court’s landmark judgments in cases like K.S. Puttaswamy v. Union of India and Suchita Srivastava v. Chandigarh Administration have affirmed the right of women to make autonomous decisions about their bodies and reproductive health, regardless of marital status. This includes the right to choose whether to carry a pregnancy to term or to terminate it.
  • In this case, the victim’s young age, her status as a rape survivor, and the potential risks to her physical and mental health are key factors that weigh heavily in favor of granting permission for the termination of her pregnancy. The court rightly recognizes the severe trauma and anguish that the victim has experienced, both from the sexual assault itself and from the unwanted pregnancy resulting from it. 

CONCLUSION 

 In  conclusion, the court’s decision reflected a careful consideration of legal, medical, and ethical aspects, ultimately prioritizing the well-being and autonomy of the victim while upholding her constitutional rights and ensuring access to justice and support.


 

 
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