Analysis on “Minor Rape Victim’s Right to Abort Against that Of Foetus to live“

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A two-judge bench in Rajasthan High Court on the 1st of May, 2020, set aside the order passed in October 2019. The Court held that the rape victim’s Right to abort outweighs the foetus’ Right to life.

The Bench comprised of Justice Pushpendra Singh Bhati and Justice Sandeep Mehta. They held that a woman’s reproductive choice is a fundamental right. In case of minor rape victims, her Right to abort ‘heavily outweighs’ the foetus’ Right to life.

Article 21: ‘Reproductive Choice is a Fundamental Right’

Article 21 of the Constitution guarantees to every person the Right to Life and Liberty. With time, this has also come to include the Right to Reproductive Choice. This Right is not absolute as the foetus also has the Right to Life guaranteed under Article 21.

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In India, abortion is allowed only in cases of mental or physical injury and within 12 to 20 weeks of pregnancy. No matter how much the law stresses on a woman’s autonomy in matters of abortion, the reality is different.

Laws Related to Abortion in India

The Medical Termination of Pregnancy Act, 1971 regulates the Right to an abortion. The grounds of abortion under this Act are:

  • Where the pregnancy will cause injury to the physical or mental health of the woman and
  • Where there is a risk that the child will suffer from such physical or mental injury.

The Act considers ‘rape’ as an act which affects the mental health and hence is a ground to abort. However, abortion is only allowed within 12 to 20 weeks of pregnancy. Post this, the woman has to approach the High Court or Supreme Court for permission.

Present Case: ‘State of Rajasthan & Anr. v. Ms S

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A minor was sexually assaulted and was later discovered to be pregnant. She approached the District Court for the termination of her pregnancy. Since she was a minor, the case was transferred to the Court of a Special Judge dealing with POSCO cases.

The Medical Report suggested that there was no physical or mental threat to the victim. Further, it stated that termination of pregnancy if allowed, will not lead to any injury to the victim. But the Judge dismissed her application since her pregnancy had exceeded 20 weeks.

Decision of the Lower Court

The Court held that the Right to Life of the foetus deserves consideration. The Court cannot invoke the Right to Life guaranteed under Article 21 for the victim alone. It is also available to the unborn child. Further, the Court observed that ‘Navjeewan Sansthan’ was willing to protect the child. They also assured a dignified life for the petitioner. Thus, the Court must give the Right to Life of the unborn child precedence over the Right of the victim.

The Court dismissed the application and issued certain guidelines. They did this because of a balance between the Right to Privacy of the victim and the Right to Life of the unborn child. It issued directions to ensure a comfortable pregnancy and delivery. These directions also included protecting the privacy and dignity of the victim.

An Appeal in the High Court

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A Petitioner filed a special appeal in the High Court of Rajasthan. The Court observed that the single bench Judge has failed to make apt considerations. Unfortunately, by the time the Court heard the petition, the victim was close to 9 months of pregnancy.

The Court stated that the provisions of the MTP Act, 1971 are reasonable restrictions on the Right to Reproductive Choice. It observed that a woman’s privacy, dignity and bodily integrity should be respected. It recognized that reproductive choices include procreation and to abstain from procreation.

Medical opinion has stated that giving birth at an early age causes great risk to the well-being of the mother. In the present case, the victim is only 17 years old. The Court further observed that rape affects the mental health of a woman. In this case, the victim conceived because of the sexual assault. It means that it was a forced pregnancy against her choice. To further continue with the pregnancy will remind her about the crime all the time. The victim might carry a constant feeling of remorse.

Thus, the Court took into consideration all these matters and decided in favour of the victim. The Court held that the Right of the pregnant woman outweighs the Right of the foetus. It further held that the trial court should have allowed the request for termination.

The Court issued certain guidelines to avoid such an unfortunate case in the future. These are to be mandatorily followed by the authorities involved. This decision overruled the judgement given last year in October. The Court finally recognized the supremacy of a woman’s autonomy in matters of abortion.

Concluding Remarks 

One new law may not ensure a change in mindset. However, the Court’s judgment surrounding the case of a rape victim has set a new precedent. This judgment is a huge achievement, especially in a country where bodily autonomy regarding pregnancy is non-existent. The State’s interest has been so inclined to preserving the life that it takes away the victim’s chance of ever leading a normal life after a sexual assault.


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