Heart-wrenching but bound by legal mandate: Orissa High Court denies gang-rape survivor’s plea to terminate 26-week-old pregnancy

The Orissa High Court recently denied the request of a gang-rape survivor who sought permission to terminate her 26-week-old pregnancy, even as it acknowledged that the situation of the petitioner and what lay ahead for her was heart-wrenching..“Although this court is painfully conscious of the possible impact of this decision on the life of the petitioner, it is bound by the legal mandate”, said Justice SK Panigrahi while hearing a plea by a survivor of gang rape seeking termination of a 26-week-old pregnancy after the Sub Divisional Judicial Magistrate (SDJM) had rejected her plea..The counsel for the petitioner submitted that she was an unmarried, young girl who had suffered mentally and physically. Further, she was being deprived of a dignified social life due to the offence against her.It was submitted that the petitioner felt morally insecure to step out of her house due to the social stigma.It was argued that the rejection of the plea on the part of the SDJM on the grounds of lack of jurisdiction was erroneous since it was not necessary that an allegation of rape must be proved before Section 3 of the Medical Termination of Pregnancy Act can be invoked. To buttress this argument, Prosecutrix vs The State of Madhya Pradesh was relied on..While examining the case, the Court found itself "confronted with a dynamic tension between the Court’s power to protect the rights of the victim and the solicitude for the unborn."In light of the gravity of the case, the Court ordered a medical test to determine the period of pregnancy.Pursuant to the same a medical test was conducted and the report said that it may be unsafe for getting the termination done at this stage. In fact, the report stated that allowing the termination at this stage could endanger the mother’s life or even lead to substantial and irreversible impairment of a major bodily function..The Court discussed a judgment of the Division Bench of the High Court that dealt with a pregnant rape survivor’s reproductive choice. It was reiterated that the infringement of the fundamental right-to-life of the survivor heavily outweighed the right-to-life of the child in the womb.“In the comparative evaluation, the infringement of the fundamental right to life of the victim heavily outweighs the right to life of the child in womb. Therefore, we may reiterate that the fundamental right of the pregnant woman i.e. the child writ (12 of 20) [SAW-1344/2019] petitioner to get the pregnancy terminated would heavily outweigh the right of the foetus to be born,” the Court said..However, in the present case, the pregnancy exceeded 24 weeks and there was no opinion of any medical practitioner that its continuance would involve risk to her life or grave injury to her physical and mental health.“Viewed from every angle, the provisions of the MTP Act do not permit the termination of pregnancy of the petitioner,” the High Court said..The single-judge acknowledged that the victim would be forced to bear and care for the unwanted child and the same was bound to severely impact her personality and womanhood.“As stated hereinabove, there is no other legal option for her but to undergo suffering and deliver the baby since the pregnancy is over twenty-six weeks old,” the judgment said..Expressing agony at the approach of the police officers who could have helped the victim get timely advice and saved her from suffering the forced delivery, the Court asked the legal services authority at the district level to coordinate with the police department in setting up legal-aid booths or providing legal services helpline numbers at each and every police station.“Time is of the essence in matters involving MTP Act and no victim should suffer due to lack of onerous obligations involved in the process,” the judgment stated..With the idea of the survivor and her child’s welfare, the Court directed the District Collector, Cuttack to ensure arrangements for her proper diet, medical supervision and medicines throughout the remaining part of her pregnancy and proper medical facilities be made available for a safe delivery of the child.Further, the State Legal Services Authority was directed to pay an amount of ₹10 lakh as compensation to the victim..Advocate Sarathi Jyoti Mohanty appeared for the petitioner while the respondent was represented by Additional Government Advocate L Samantaray..[Read Judgment]