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HC: Right to progeny and termination thereof is a fundamental right under article 21 of Indian Constitution

 While permitting a rape victim to terminate her pregnancy after 20 weeks of gestation, the Orissa High Court bench consisting of Justice SK Mishra and Justice Savitri Ratho, in the case of WPCRL 68 of 2020, has held that right to progeny and termination thereof is a fundamental right enshrined under Article 21 of the Constitution of India. Reliance was placed by the Court on the case of Meera Santosh Pal v. Union of India, where the Supreme Court held that women’s right to make reproductive choice is also a dimension of personal liberty as understood under Article 21 of the Constitution.

Factual Background

The writ application was filed by the petitioner- Gopal Pattnaik for issuance of writ of Habeas Corpus- alleging that his elder daughter lodged an F.I.R. regarding missing of the victim girl and their suspicions to the effect that Respondent No. 5- Raja Mallick, allured her sister to some unknown place.

Case of the Petitioner 

The grievance of the petitioner is that even though a prima-facie case is made out under Section 363 of the Indian Penal Code and but Police did not take any step (pursuant to lodging of the FIR) for rescue of the victim. Hence, the writ application.

Reasoning and Decision of the Court

The Court was apprised of the fact that the victim girl has been confined in a house and thus the Court gave specific direction to the Respondent No.4 to take immediate steps for recovery of the victim girl as early as possible. Pursuant to this direction- the victim girl was recovered. She was medically examined and her statement recorded under Sec164 Cr.P.C and as per her wishes, she was left in the custody of her parents.

Thereafter, the petitioner filed an interim application:

 “for appropriate orders by the Court for terminating the pregnancy of the victim girl (18 weeks pregnant) which was listed on 04.12.2020. The statement of the victim recorded under Sec- 161 and 164 Cr.P.C, and her medical examination report sent to us by email by the learned Addl. Govt. Advocate.”

The application seeking termination of pregnancy was taken up by the Court and the Court directed an examination of the victim by a Gynecologist and a Radiologist. A report of exact age of pregnancy and an answer to- whether termination of pregnancy would be dangerous to the health and life of the victim girl (both mentally and physically)- was sought by the Court.

The above stated report submitted by the Doctors was found to be insufficient by the Court and hence, the Court referred it to a committee of Senior doctors and specialists.  In an affidavit it was submitted before the Court that neither the victim nor her family want the pregnancy to be continued.

The report of the Committee disclosed the following facts:

“1. Radiological examination was not done due to her pregnancy but her age as per the High School Certificate Examination record showed that she was yet to attain 18years.

2. Consent for examination was taken from her mother and elder sister3. Members of the committee interacted with the victim and her family members (mother and elder sister). During such interaction, she stated that she left her house against her will but under force and has been subjected to forceful sex which led to the pregnancy.

4. The victim as well as the accompanying guardians desired for termination of her present pregnancy.

5. The obstretics ultrasound examination on 11.12.2020 revealed the intrauterine fetus to be of 21 weeks 5 days + 1 week (more than 20 weeks). No obvious congenital fetal abnormality was detected

6. Her last menstrual period was on 7th July 2020 and hence her gestation was calculated to be 22 weeks 3 days.

7. Psychiatric evaluation of the victim girl revealed that although she was of sound mind but is suffering from adjustment issues with of emotional reaction, sense of insecurity , problems of college dropout and at times suicidal tendency. Although these mental health issues do not have any direct adverse impact on the outcome of the pregnancy but may exacerbate in view of her unmarried status, sense of insecurity in future and other associated emotional issues.

8. It is well established in medical literature that teenage pregnancy carries an inherent risk of increased maternal and fetal adverse outcome and increased incidence of fetal and maternal deaths.

9. The Committee ultimately opined that though her physical condition does not contraindicate continuation of pregnancy and as the MTP Act 1971 does not permit medical termination of pregnancy beyond 20 weeks, the committee felt its inability to recommend medical termination of pregnancy as it had crossed 20 weeks. But it cannot be denied that her mental problems may have adverse impact on the future of the victim on social ground.”

Since, the committee report also did not disclose the potential impact of termination of pregnancy, the Court examined the statement of the victim girl recorded under Section 164 Cr.P.C. which showed that:

“she was in love with Opp. Party No.5 and after leaving home stayed together for more than three months before she was rescued by the police and there was sexual relationship between them during their absence from their home. In our prima facie opinion, such sexual intercourse without consent of the victim girl or even with her consent cannot be held to be with consent in the eye of law, in view of her age as she had not attained the age of majority. There is definitely no consent of the parents of the victim girl for her to have such kind of sexual relationship or pregnancy.”

While examining a catena of judgement- the Bench held: “Thus it is no doubt that right to progeny and termination thereof is a fundamental rights which springing from the right to life as enshrined under Article-21 of the Indian Constitution.”

Allowing the termination of pregnancy (provided- no danger to victim’s life is caused) the Court held:

“Giving our anxious consideration to the facts of the case , the provisions of the 1971 Act and the different judgments of Supreme Court and different High courts, we are of the opinion that in this case we should allow the medical Board, which has already been constituted to proceed with the medical termination of pregnancy of the victim girl , if there is no danger to the life of the victim girl. The medical termination of pregnancy should be carried out under the guidance of Dr. Tushar Kar, HOD of obstetrics and Gynecology, and during the procedure if they find any risk to the life of the victim girl then they have discretion to cancel the procedure for medical termination of pregnancy.”

The Court further, elaborated on the reasons based on which it allowed the medical termination of pregnancy:

i). The Court held- Conception by the minor girl (victim) to be a result of the offence of rape committed by Opp. Party No.5- this fact was deciphered from the statement under Section 164 Cr.P.C. of the victim girl along with her statement before the medical Board.

ii). It was noted that the unwed mother (victim girl), was a minor and has to undergo the ignominy of an undesirable pregnancy. It will hamper her further physical and mental growth. It will also affect her future education prospects.

iii). The Court also took a note of the social sigma- that the minor, her parents and her child will face- as the petitioner and his daughter belong to very humble walk of life.LEXIS AND COMPANY


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