Owing to grave injury to the mental health of the rape victim, termination of a 26 weeks pregnancy allowed: High Court of Kerala

The word “shall be presumed” in Section 3 the MTP Act, 1971, clearly shows the intention of the legislature. In the case of rape, anguish on account of the pregnancy is statutorily regarded as a grave injury to the mental health of the pregnant woman, sufficient to terminate the pregnancy on the basis of opinion of two registered medical practitioners. This was said in the case of XXX v Union of India and Ors [WP(C).No.9982 OF 2021] by Mr. Justice Bechu Kurian Thomas in the High Court of Kerala at Ernakulam

The facts of the case are that a girl who was a survivor of sexual assault was found to be 6 months pregnant. The sexual assault was allegedly committed by her 14-year-old brother, a report in that regard was filed before the Juvenile Justice Board. The father of the victim has approached the Court seeking a direction to terminate the pregnancy of his daughter.

The Petitioner contended that the victim was in fact born as a premature child and has other medical conditions which would also aggravate, if the pregnancy is not terminated. The young age of the victim, the consequences pregnancy will force upon the victim, her parents and even the unborn child are matters which this Court cannot ignore.

The Court ordered constitution of a Medical Board to ascertain the possibility of performing medical termination of pregnancy on the victim. The Board found that the termination would involve the risk of the foetus being born alive, of the need for multiple inductions and ainterventions if the induction failed. Subject to this risk, the Board submitted that  the termination could be allowed.

The Court referred to the judgment laid down in Ms. X v. State of Kerala and Others [2016 (4) KLT 745] where the Court ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child, in order to save their lives. It further referred to the case of Meera Santosh Pal v. Union of India [(2017) 3 SCC 462] where the permission was granted when the pregnancy crossed 24 weeks, in view of the medical reports pointing out the risk involved.

After closely analyzing the facts of the present case in the background of the ratio laid in the above cases, the Court observed that “The pregnancy is that of a minor girl of 13 years. The said pregnancy will cause a grave injury to the minor which will remain a scar throughout her life. It may even have the possibility of reminding the victim of the incident of rape. It is obviously not in the interest of the society to have this young victim to undergo the trauma of the incident of rape everyday in her life. The anguish that the pregnancy causes to her will be lifelong and she may have to live with the traumatic experience throughout her life. The parents and the siblings will also have to share this trauma throughout their lives”.

The Court in view of the trauma that the minor girl has undergone and taking note of the opinion of the medical board, allowed the writ petition permitting termination of pregnancy to be performed on the daughter of the petitioner.

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