TERMINATION OF PREGNANCY IN CASE OF RAPE OF MINOR VIS A VIS RAM AVTAR VERSUS STATE OF CHHATTISGARH
The present case is a writ petition (Crl.) No. 164 of 2020 which came for the disposal before the Hon'ble Bench of Chhattisgarh High Court consisting of Justice Sanjay K. Agrawal. The writ petition has been filed by the father of a minor daughter praying before the High Court to pass a direction to the state and its officials for terminating the pregnancy of his daughter who is just 17 years 8 months and 10 days old. The daughter has become pregnant because of the act of rape committed on her by one Hari Gopal who is presently facing trial under Sections 363, 366, 376(2)(n) of the Indian Penal Code, 1860 and Section 5(l) and 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012. However, before passing the appropriate order, the Court was of the view that it is important to take into consideration the wishes of the petitioner's minor daughter pursuant to which the petitioner and the state counsel were directed to record the statement of the daughter and present it before the Hon'ble Court.
From the statement so recorded, it was ascertained that the petitioner's daughter did not want to get her pregnancy terminated and expressed willingness to continue with the same. Therefore, the question which arose for the disposal of the Hon'ble Court in the present case was whether the father of a minor daughter can get her pregnancy terminated even though she was willing to continue with the same? Before divulging into the arguments that have been advanced by the learned counsel for the parties, it would be apt to understand the provisions of the law on this aspect. The law relating to the termination of pregnancies in India is governed by the provisions of the Medical Termination of Pregnancy Act, 1971. Section 3 of the impugned Act provides for the termination of pregnancy only if registered medical practitioners are of the opinion, formed in good faith, that:
In case the pregnancy is continued, there is a risk to the life of the pregnant woman or grave injury to her physical or mental health; or,
There is a substantial risk that if the child were born, it would be seriously handicapped.
The pregnancy in the above circumstances can only be terminated if the length of the pregnancy does not exceed twenty weeks. Explanation 1 to the section further provides for the presumption that in case the pregnancy is caused because of the act of rape committed on a woman, the anguish caused by such pregnancy shall constitute a grave injury to the mental health of the woman. Subsection 4(a) further provides that the pregnancy of a minor shall not be terminated except with the consent of her guardian in writing.
The petitioner father in the present case was represented by Advocate Anish Tiwari who contended before the Court that the petitioner's daughter being a minor, the petitioner was competent to accord consent on her behalf as it was permitted by Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971. He further relied on Explanation 1 of the Act and submitted that since the pregnancy has been caused because of the act of rape committed on the petitioner's daughter, therefore the termination of pregnancy is the only way to protect her from any injury to her mental health.
The respondent state was represented in the case by Advocate Mateen Siddiqui, Deputy Advocate General and Advocate Rahul Jha, Government Advocate who relied on the petitioner's daughter's medical report to contend that since the length of her pregnancy was 27 weeks and 2 days as on March 9th, 2020, therefore it would not be safe to terminate her pregnancy at this stage. Even the provisions of the Medical Termination of Pregnancy Act, 1971 does not permit the termination of the pregnancy if the length of the pregnancy is more than 20 weeks. The Court also appointed Advocate Manoj Paranjpe, Advocate Prasoon Agrawal and Advocate Anurag Singh as the amicus curiae who contended that the consent of the minor daughter must be obtained before terminating her pregnancy.
Disposing of the present petition filed by the father of the minor daughter, the Court relied upon the judgment of Madras High Court in V Krishnan vs. G. Rajan @ Madipu Rajan and another, [1994 (2) MWN (Crl) 333] wherein it was held that the consent of the pregnant woman is to be taken into consideration before the termination of pregnancy irrespective of the fact that she is a minor. It was further held by the bench that a woman's right to make a reproductive choice is a part of her right to life and personal liberty enshrined under Article 21 of the Constitution of India. The woman has the complete right to choose whether she wants to procreate or wants to use contraceptive methods and this right of the woman shall not be interfered with by any third person against her wishes. The woman has the complete right to carry a pregnancy to its full term and give birth to a child and subsequently raise it.
The Court further pointed out the best interest theory as has been laid down by the Hon'ble Supreme Court in the case of Suchita Srivastava and another vs. Chandigarh Administration, [(2009) 9 SCC 1]. As per this theory, the Court has to choose that course of action which is the most suitable and serve the best interests of the pregnant woman. The Courts will also have to take into consideration the cost involved in the upbringing of the child before making the decision about whether pregnancy must be terminated or not. The Hon'ble Bench also took note of the various decisions of other High Courts as well as Supreme Court of India wherein the termination of pregnancy of the length greater than twenty weeks was also allowed taking into consideration the fact that it was in the best interest of the pregnant woman. The cases where such termination was allowed were those in which there were serious threats involved to the life of the woman if the pregnancy was allowed to be continued. Therefore, the Hon'ble Court set beyond reasonable doubt, the proposition that it is the interests of the pregnant woman and no other that must be taken into consideration while disposing of the petition praying for termination of pregnancy.
The Hon'ble Bench also took note of the law of consent in matter of termination of pregnancy prevailing in the United Kingdom and the United States of America. It was observed that in both these jurisdictions the consent of the pregnant woman is of utmost importance even if she is a minor provided that she is able to understand the implications of her decisions. The consent of other parties in that situation becomes irrelevant. The Court also took into consideration the Vedic Hindu philosophy which prescribes that the killing of the fetus by the pregnant woman is the ultimate sin.
The Hon'ble Bench then took note of the medical report of the petitioner's daughter as well as her statement recorded with the lady police officer who examined her on the direction of the Court. It was observed by the Court that from the statement recorded with the police officer, it can be said that the minor is capable of understanding the implications of the decision she is making. Moreover, it was also observed that from the medical report of the petitioner's daughter that there would be a grave danger involved to her life if the pregnancy is allowed to be terminated at such an advanced stage. Therefore, the Court dismissed the plea of the petitioner by holding that since the daughter herself wanted to beget the child and termination will involve a great peril to her life, the termination of pregnancy shall not be allowed.
The present decision of the Hon'ble Court is a perfect example of the application of the best interest theory by the Court in deciding the question of the termination of pregnancy. The decision of the Court was most suitable for the pregnant woman because if the termination of pregnancy was allowed, it would have involved a great threat to the life of the woman herself. Moreover, as has been stated above, since the woman has the right to make reproductive choices as a part of the right to life, therefore due consideration was given by the Court to the choice of the minor daughter. Hence this decision can be said to serve the best interest of the petitioner's minor daughter and also served the ends of justice.
Written By: Mr. Manik Mahajan, Final Year Student, LLB, Punjab University, Law Intern at S.Bhambri & Associates (Advocates)