The Gujarat High Court permitted a rape victim to abort her 24- week fetus. The judgement contradicts the provision of Medical Termination of Pregnancy Act, 1971. The Court has conceded onto special grounds for a vulnerable person.
Facts of the Case
The petitioner is a 19-year old girl from Navsari, Gujarat. The accused raped the petitioner in January 2020, while she was alone in a field with grazing goats. The 30-year old accused had threatened the victim against filing a police complaint. Alternatively, the accused threatened to inform her parents. In the due course, the examination of the girl for stomach ache led to the discovery of pregnancy. Subsequently, the petitioner filed an official complaint at Vijalpore Police Station.
The medical officers examined the 22-week pregnancy causing physical and mental trauma. But, termination of pregnancy required court permit under the MTP Act, 1971. Thus, the petitioner filed a petition under Article 226 of the Constitution of India.
The Gujarat High Court at Ahmedabad heard the present matter. Advocate K. D. Beladiya represented the petitioner and Mr H.K. Patel appeared as the public prosecutor for Respondents.
The Court took notice of the pregnancy. It fell under the special category of forceful sexual harassment and rape. However, the present case was beyond the 22-week gestation period stipulated in the MTP Act, 1971.
The pregnancy was at a crucial stage causing injury to the mental health of the petitioner. The agony and trauma, coupled with the bearing and rearing of a child would create mental agony to the victim. Moreover, pregnancy would lead to various problems. These include mental, physical, social and economic suffering to the victim. Hence, the termination was in the best interest of the petitioner.
The Court read Section 3 of the MTP Act, 1971 along with Article 21 of the Constitution of India. As a result, it led to certain specific conditions on women’s right to reproductive choices. These rights are guaranteed pursuant to the ‘personal liberty’ principle.
The Court considered the judgement in Suchita Srivastava v. Chandigarh Administration, (2009)3 GLH 468. There were also discussions whether provisions of the MTP Act, 1971 posed unreasonable restrictions. It held that in the case of pregnant women, there is a ‘compelling state interest’. This is in protecting the life of a future child. In this case, the Court has undertaken a careful enquiry of the medical opinion and social circumstances of the victim. Moreover, the interest of the victim alone guided the Court’s decision.
The Court received opinion of the panel doctor with case papers, on record. Above all,
“Continuation of pregnancy may affect her physical and mental health. So, termination of pregnancy is advisable with due risk after ANC profile report“.
The counsel also placed reliance on Chandrakant Jayantilal Suthar v. State of Gujarat, (2015) 2 SCC 72, where the view of doctors prevailed.
On May 14, 2020, Justice V. P. Patel in an oral order granted permission for an abortion. The Court granted this in light of the victim’s personal liberty and best interest principle.
It referred to the Supreme Court judgement in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339, which granted abortion of 25-week pregnancy. It stated that the abortion will not need written consent of guardian as Section 4(A) of the MTP Act is applicable.
In conclusion, the Court ordered the medical officer to hand over tissues of the fetus to the investigating officer for DNA identification.
(Supreme Court directives on cases related to sexual assault protect the victim’s identity. Thus, there is no revelation of the victim’s identity.)
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