Can’t force victim of rape to give birth to child of rapist: Kerala HC
The HC further pointed out that "pregnancy outside marriage, in most cases, is injurious, particularly after sexual abuse and is a cause for trauma affecting both physical and mental health of the victim.
Kochi: The Kerala High Court has ruled that a rape victim cannot be forced to give birth to the child of a man who raped her.
“Section 3(2) of the Medical Termination of Pregnancy 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 a rape victim to medically terminate her unwanted pregnancy would amount to forcing her with the responsibility of motherhood and denying her human right to live with dignity, which forms a significant part of the Right of Life guaranteed under Article 21 of the Constitution,” said the High Court.
The High Court further pointed out that “pregnancy outside marriage, in most cases, is injurious, particularly after sexual abuse and is a cause for trauma affecting both physical and mental health of the pregnant woman, the victim. Sexual assault or abuse of a woman is itself distressing and the resultant pregnancy compounds the injury. This is because such a pregnancy is not a voluntary or mindful pregnancy.”
The court gave this direction on a petition moved by a 16-year-old rape survivor through her mother. It was alleged that when the girl was studying in the 9th standard, she was sexually abused by her 19-year-old “lover” and became pregnant.
Since the MTP Act only allows termination of pregnancy until the 24th week (except in certain circumstances) the mother and minor girl approached the court seeking permission to medically terminate her 28-week pregnancy.
The court pointed out that, “Reproductive rights include the right to choose whether and when to have children, the right to choose the number of children and the right to access to safe and legal abortions.”
The court went through the report of the Medical Board formed to examine the pregnant girl which was of the view that continuation of the pregnancy may be detrimental to her mental and physical health.
After noting this, the court granted her permission to terminate the pregnancy and also added that if the foetus is found to be alive after the procedure, the hospital must care for it and directed the state to take charge besides offer medical aid to the child in keeping with the provisions of the Juvenile Justice (Care and Protection of Children) Act.
