Wednesday, Aug 10, 2022
Abortion Access

Long Legal Journey For Minor Rape Victims For Abortion

Around 40 petitions seeking termination of pregnancies under 20 weeks were filed in different Indian courts between 2016 to 2019 after doctors refused to perform an abortion. Most of the petitions were filed by the rape victims.

Minor rape victims have to often approach courts after doctors refuse to perform an abortion.
Minor rape victims have to often approach courts after doctors refuse to perform an abortion.

While over the years, the courts have passed orders allowing termination of pregnancy of minor rape victims, they have to face a long ordeal to get the “unwanted pregnancy” terminated. The victims first approach doctors and hospitals and following their refusal move to the courts for relief. While the Medical Termination of Pregnancy Act (MTP Act) allows abortions until 20 weeks, rape victims continue to file petitions seeking termination of their pregnancy as doctors refuse to go for their abortion.

The POCSO (Protection of Children from Sexual Offences) Act, 2012 defined as an Act to protect children from offences of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for the trial of such offences. It has also set guidelines for all registered medical practitioners. They have to render emergency medical care to attend to the needs of children who have been raped, including access to abortion. 

The Ministry of Health and Family Welfare in Guidelines and Protocols for medico-legal care for victims of sexual violence mandates doctors to provide immediate treatment for survivors of rape, including emergency contraception and abortion. In reality, however, rape survivors who become pregnant face a range of barriers in accessing abortion services and have to move to the Courts.

Between 2016 to 2019, around 40 petitions seeking termination of pregnancies under 20 weeks were filed in different courts around the country after doctors refused to perform an abortion. Most of the petitions were filed by the rape victims.

Where a minor victim is petitioner:

In 2020, a petition was filed under Article 226 by a minor girl through her father with the Jammu and Kashmir High Court seeking to carry out the termination of her pregnancy and taking the DNA samples of the fetus for the identification. The petitioner had 21 weeks of pregnancy.

The petitioner told the Court that on December 19, 2019, she was kidnapped by one Ashok Kumar and other persons and subjected to rape.

Following her disappearance, her father lodged a missing report with the Gandoh Police Station in the Doda district of Jammu on January 25, 2019.

The police registered F.I.R 104/2019 udder section 363/109 IPC against the accused.  The police, however, did not add an offence punishable under section 376 IPC and POSCO Act in the matter as was warranted under the law.

On April 4, 2020, the police recovered the girl and handed her over to her parents. Later her medical check-up was conducted. A month later on May 6, 2020, the girl was found to be pregnant by 21 weeks.

Her parents consented to termination of “unwanted pregnancy” which, according to the petitioner, had been causing great mental and social stigma and danger to her health.

She approached the Government Medical College, Doda, and later a hospital in Jammu, but doctors refused to terminate her pregnancy leaving her with no option but to approach the Court.

The petition referred to Section 3 of the Medical Termination of Pregnancy Act, 1971 and Rules.

On June 26, 2020, the High Court directed medical examination of the girl by an expert team seeking a medical opinion as to whether termination of the pregnancy would be medically permissible and feasible. On June 29, 2020, the medical team comprising two gynaecologists, one radiologist and one lecturer in forensic science, examined her and gave the opinion that “she is carrying 24 weeks and two days of pregnancy, termination of which is not allowed under MIP Act. However, she can undergo termination of pregnancy after correction of anemia."

On June 30, 2020, the High Court directed further examination of the petitioner victim by a psychologist. In the report, a psychologist of the GMC Jammu said, “the petitioner-victim does not have any active psychopathologies and her mental status examination is normal.” Subsequently, the Court allowed the petitioner to terminate her pregnancy. 

Where father of the victim is a petitioner: 

In another case, the High Court of Jammu and Kashmir on February 1, 2021, allowed termination of the pregnancy of a minor rape victim after the doctors had refused to terminate her pregnancy.

Here a father had filed a petition to get the pregnancy of her minor daughter, a victim of rape, terminated. The case was registered under FIR 7/2021 under section 363 IPC. Later, offences under Section 3/4 of the POSCO Act along with Section 376 IPC were filed at Pacca Danga Police Station, Jammu.

The petitioner-father said that her minor daughter was kidnapped by Vikas Bhagwan of Kishtwar district. The alleged act of rape of the minor, as stated, resulted in pregnancy. The petitioner, after noticing serious threat to the mental and physical health of her daughter, had approached several hospitals for termination of pregnancy under the MTP Act, 1971. However, the health authorities didn’t agree, forcing the petitioner to file the petition before the Court.

The Court allowed the 15-year-old rape victim to terminate her pregnancy.

The High Court said that if the Medical Board finds her pregnant upon her examination, it can recommend the termination of her pregnancy. The court also directed the Principal of Government Medical College, Jammu, to ensure free medical facilities in the event termination of the pregnancy is undertaken, and asked the Member Secretary, State Legal Services Authority, to process the case of the victim for payment of compensation.