A 10 Year Old Pregnant Rape Victim and the Supreme Court

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The Medical Termination of Pregnancy Act, 1971, an Act which sought to regulate the termination of pregnancy is once again in the dock, in light of the recent order of the Supreme Court of India, wherein the Supreme Court refused to allow a 10 year old rape survivor to legally terminate/ abort her pregnancy.

The reason for refusing the prayer for abortion was that the Medical Board which was constituted to consider the issue of abortion was of the view that the abortion would entail risk to the life of the 10 year old. The girl was 26 week pregnant and there is a ban on termination of pregnancy if it is beyond 20 weeks as per The Medical Termination of Pregnancy Act, 1971.  At first sight the judgement seems to be benevolent. However, a closer look, with all due respect, would show that the Supreme Court of India could have dealt with the issue in a better manner.

The immediate outcome of the order is that now we have a 10 year old mother, with a child that she did not want. I hope everyone will agree that the position in which the poor girl child is, as a result of the judgment, is not a very pleasant one. She now is not only a rape survivor, but also an unwilling mother of an unwanted child! Other possibilities for termination of pregnancy, including caesarian section could have been explored.

Though there is no doubt that every child is special and is a gift from God, but would it not be very difficult for the child as well to live a life, being born out of a rape, something that by its very nature is forceful, something that the bearer of the child did not want to happen. The birth of a child is a moment of celebration and should remain so.

Women are and have been subject to all forms of atrocities, in this country and all over the world. the contemporary society is serious about taking steps to make good the harm done to womenfolk over centuries, though the same cannot be undone by any stretch of imagination. one such step being taken in modern society is taking the rights of women seriously. Things that women could not do in the past, are being recognised as a part of her inalienable rights, like right to choose a husband, right to work, right to equal pay for equal work, etc. In the backdrop of such a society, I ask myself a question, does a woman not have the right to choose the father of her child? Or does this right also have to dictated by some authority or the society? With all due respect, I believe that it is not a question of conferment of right or the society owing anything to a woman, but an inalienable and inseparable right which is conferred on a woman the moment she is born and is as elemental, fundamental and quintessential as right to breathe.

If we claim that we belong to a society where girls have the freedom to choose their partners, does it not mean that such a society should allow a girl to choose who the father of her child should be? I am not for a moment implying that every rape survivor should opt for abortion. If that is what has been understood then I am guilty of faulty communication and you of selective understanding. What I mean is that a victim of a henious act like rape is already traumatised and scarred for life. Why make things worse for her by not letting her choose? By what right or say does the society, which includes any kind of authority, have the cheek to still dictate what she can do in her life, when it was inept in protecting her from rape?

I, most respectfully feel, that the Supreme Court ought to have invoked its powers under Article 142 of the Constitution and have allowed the girl child to do whatever she or her well wisher/ guardian wanted to do, keeping in mind the welfare of the child, which would have been ultimate justice in the present case. Risk to life is involved even in adventure sports, but there are lots of people who do it without any interference from Authority or Courts. Article 142 of the Constitution gives the Supreme Court the power to pass any order to do complete justice to the parties. Despite the presence of such a provision, to direct a ten year old to bear a child, which is born out of rape, against her wishes, may not have been an ideal judgment, especially in light of the fact that in the past Courts have allowed termination of pregnancies which are beyond 20 weeks.

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About kawaljit

Kawaljit Singh Bhatia is a Lawyer and appears regularly at the Supreme Court of India and Delhi High Court. He has handled various high-stake matters in the filed of arbitration, telecom and broadcasting laws, labour matters, corporate matters, etc. He is passionate about legal issues that affect the society. He can be reached at kawaljitbhatia@gmail.com
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