XXX Vs Union of India: 26-weeks Pregnancy Allowed To Be Terminated By Kerala High Court Of A 13yr Old Sexual Assault Survivor

DATE OF JUDGMENT:
19th April 2021

JUDGES:
Justice Bechu Kurian Thomas

PARTIES:
XXX (Petitioner)
Union of India (Respondent)

SUMMARY

The Kerala High Court allowed a 13-year-old rape survivor to end her 26-week-old pregnancy. The bench further commented that the pregnancy may help the minor to remember the sexual assault and it isn't in the interest of the society to have her to go through the trauma every day.

AN OVERVIEW

1. Complaining of stomachache, a minor girl of 13 years alongside her parents approached the hospital.
2. After the examination, the doctor saw that the girl was pregnant for almost about 6 months.
3. During the investigation, it was stated that the offense was committed by the 14-year-old brother of the victim.
4. Contending that the daughter of the petitioner is a survivor of an assault by her brother, the father of the victim has moved towards this Court looking for a direction to terminate the pregnancy of his daughter.

ISSUES

The issue analyzed by the court –Whether a 26-week pregnancy may be terminated of a 13-year-old child who was sexually assaulted by her brother?

IMPORTANT PROVISIONS

1. Section 3 of the Medical Termination of Pregnancy Act, 1971: states when pregnancies may be terminated by the registered medical practitioners.
2. Section 4 of the Medical Termination of Pregnancy Act, 1971: states the place where pregnancy may be terminated.

ANALYSIS OF THE JUDGEMENT

1. The Court requested the constitution of a Medical Board to determine the chance of performing medical end of pregnancy of the victim. The Board stated that the termination would imply the danger of the fetus being born alive, of the need for multiple inductions and implications. Subject to this danger, the Board presented that the end could be permitted.
2. The Court brought up that the end of pregnancy was permitted if a Medical Board thought that proceeding with the pregnancy would imply danger to the existence of the pregnant lady or of grave injury to her physical and psychological well-being or there is a substantial danger to the child after born.
3. Additionally, the Explanation of Section 1 to Section 3 indicates that if the pregnancy is caused by an assault committed on the woman, it will be assumed that the agony brought about by the pregnancy would establish a grave physical issue to the emotional well-being of the pregnant lady, the Court said. The word utilized in clarification is "will be assumed".
4. The bench clarified, "will be assumed" made as a statutory assumption shows the intention of the legislature. In the case of rape, the torment by the pregnancy is legally viewed as a grave injury to the psychological well-being of the pregnant lady, adequate to end the pregnancy based on an assessment of two registered medical specialists".
5. The bench referred to the judgment of Ms. X v. Province of Kerala and Others. [2016 (4) KLT 745] where the Court ordered the end of pregnancy surpassing 20 weeks in the case of a victim of sexual assault who was not prepared mentally to deliver the child, to save their lives. It further referred to the case of Meera Santosh Pal v. Association of India [(2017) 3 SCC 462] where permission was granted when the pregnancy crossed 24 weeks, taking into account the medical reports pointing the danger implied.
6. The Court because of the trauma that the minor girl has gone through and observing the opinion of the medical board, permitted the writ petition allowing the end of pregnancy to be performed on the victim.
7. The Court contemplated that permitting the pregnancy to proceed would be awful for the child just as her parents. The child's parents sought for the end of the pregnancy, referring to their daughter's injury and the possible genetic disorders upon the unborn child because of the survivor's close relationship with the supposed perpetrator.
8. The Court stated, "Given the trauma that the victim has gone through and observing the opinions of the medical board, the writ petition should be permitted allowing the end of pregnancy to be performed on the girl of the petitioner."
9. The court ordered, "There will be a further direction to the specialists to take the tissue of the fetus for the identification of DNA and maintain the similar intact for future purposes, particularly because a criminal case is forthcoming in the present case.
10. The Registry and all concerned will see that supreme protection is kept up regarding the character of the petitioner while issuing the certified copy of the judgment. There will be a direction that copy of the writ petition, affidavit, and the records added to it and the medical report will not be issued to any third individual without acquiring orders from this Court."

CONCLUSION

The end of pregnancy was permitted legitimately if the embryo has grown up to 24 weeks. Since the child's pregnancy has the gestational age of 26 weeks, the single-bench permitted the medical end of pregnancy thinking that she is a minor and has been assaulted. The court additionally saw that permitting the pregnancy would stay a scar for the duration of the life and would be horrible for the child just as her parents. The girl was supposedly attacked by her 14-year old brother.

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