Kerala High Court Upholds Rights of Rape Survivor to Deny Birth to Rapist’s Child
In [XXXXXXXXXX v. Union of India & Ors.], the Kerala High Court has recently held that not allowing a survivor of rape to terminate her pregnancy which was caused by the act of rape, will amount to a denial of the right to live with dignity.
According to Justice Kauser Edappagath, under Medical Termination of Pregnancy Act (MTP Act) a woman cannot be forced to give birth to a child fathered by the man who committed sexual assault against her.
“Section 3(2) of the MTP Act provides that if the continuance of the pregnancy would cause grave injury to the physical or mental health of the pregnant woman, the pregnancy can be terminated. Explanation 2 of section 3 (2) says that where the pregnancy was caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Hence, a rape victim cannot be forced to give birth to a child of a man who sexually assaulted her. Declining permission to medically terminate an unwanted pregnancy would force motherhood on her and deny human right which forms an important part among guaranteed rights in Article 21,” held Court.
Justice Kauser Edappagath
The court also noted how traumatic it would be for women if they were made carry unwanted pregnancies through full term
“Pregnancy outside marriage in most cases is injurious particularly after sexual abuse and is cause for trauma affecting both physical and mental healths [sic] XYZ v State Of Gujarat]. The distress stems from sexual assault or abuse on women compounded further by resultant pregnancies because such pregnancies are not voluntary nor mindful ones,” read part its judgment .
This ruling came following an application filed before it by one 16-year old girl who had been raped at gunpoint some months back while coming from school; she had become pregnant as result thereof but wanted this child not to be born hence prayed that pregnancy should be terminated.
The accused person was her 19-year old “lover” and at that time, they were studying in same school together.
He is said to have used a gun when committing this offence against her which he later threatened will kill both himself if she ever told anyone what happened between them on that fateful day so frightened by these words uttered out fear for his life kept secret until now when seeking justice through courts of law.
The Court also made a note of the fact that the survivor was from a community belonging to scheduled castes and said that there could be chance of isolation.
Therefore, it granted permission to terminate her pregnancy and issued necessary directions in this regard.
If after the process, the fetus is found alive then it should be looked after by the hospital; in such case full responsibility must be taken by state and necessary medical help should be provided to the child as per Juvenile Justice (Care & Protection) Act provisions.
Petitioner was represented by advocate Shameena Salahudhee.
Senior Government Pleader Deepa Narayanan appeared for the State and Senior Panel Counsel TC Krishna appeared for Union of India.
