12-year-old Rape Survivor To Abort Foetus; Lack Of Violence Doesn't Imply Consent: Say India's HCs

The Bombay High Court has permitted a 12-year-old victim of rape and sexual assault to undergo medical termination of her pregnancy, which was a result of this assault, despite the pregnancy being beyond the permissible 20-week limit and the foetus having only minor abnormalities.

A vacation bench of Justices SJ Kathawalla and Abhay Ahuja took note of the mental anguish and trauma the minor girl would have to undergo if forced to carry the pregnancy to full term.

It also cited an April 2019 order passed by another Bombay HC bench, which had held that if a pregnancy posed injury to a woman's mental health, then forcing her to continue with such pregnancy would be in breach of her fundamental right to life.

It said the 2019 order had "correctly held that in a situation where continuation of pregnancy poses grave injury to the physical and mental health of the mother, the pregnant mother could not be forced to continue with the pregnancy merely because it had extended beyond the ceiling of 20 weeks".

Representational Image

"The same would be a serious afront to fundamental rights of such mother to privacy, to exercise reproductive choices, and even to her bodily integrity as also dignity," Justice Kathawalla's bench quoted from the 2019 order. The vacation bench was presiding over a plea filed by the victim's father.

It noted the victim was currently admitted in the state-run JJ hospital in the city, and a panel of doctors there had examined her and concluded that while "only minor anomaly is detected in the foetus of the pregnant minor mother", she "is anguished with the pregnancy." The JJ hospital panel had also told HC that the continuation of the pregnancy was likely to have an adverse psychological impact on the minor.

The bench further noted, in the present case, the medical board had also clearly opined that the minor was anguished with the pregnancy and its continuation may lead to complications during labour. "It is further opined the continuation of such an unwanted pregnancy will have physical and mental stress to minor as well as have a psychological impact," HC said.

The court has directed JJ hospital authorities to provide counseling and requisite medical aid to the victim and to perform the MTP procedure.

Lack of violence doesn't imply consent

Lack of violent resistance by a victim does not amount to consent, the Madras High Court noted, confirming a rape conviction.

Twitter

The court, in its order, said ¡°mere absence of a valiant and violent effort on the part of the victim certainly does not amount to consent¡±, as Justice D Bharatha Chakravarthy explained that one must step into the shoes of the victim and see the entire episode from her perspective, Bar and Bench reported.

The court discussed the judgment of the Punjab & Haryana High Court in Rao Harnarain Singh and others vs. State where it was observed that, ¡°every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.¡±