The Orissa high court (HC) has turned down the plea to abort the 25-week pregnancy of a mentally challenged rape survivor (22) because it violated the Medical Termination of Pregnancy Act, 1971.
Earlier this year, the Union Cabinet had cleared a long-pending change to the Act by raising the legally permissible limit for an abortion to 24 weeks from 20 weeks.
A single-HC bench of justice Biswanath Rath said the Medical Termination of Pregnancy Act, 1971 applied to rape on minor, minor and mentally challenged, minor and physically challenged, unmarried major, married major, mentally challenged major and physically handicapped major.
“In case there is no interest shown for continuing with the pregnancy, the local chief district medical officer (CDMO) should undertake its termination under the Medical Termination of Pregnancy Act, 1971. In case, an interest for termination is not shown, then the police along with the CDMO would have to take care of both mother and child in the womb involving pre-birth and post-birth care for at least one year after the birth takes place,” the HC observed.
“In case of termination of pregnancy, the CDMO should take a DNA (deoxyribonucleic acid) sample of the child, which can be handed over to a court concerned via the investigating agency for requirement, if any, of a criminal trial. To maintain secrecy of her pregnancy and termination, the state will ensure, if necessary, to let the mother stay in custody of a woman rehabilitation centre until her delivery and convalescence,” the court further observed.
The order came on a plea of the mother of the mentally challenged survivor to allow abortion of the 25-week foetus due to her mental incapacity.
In August, the survivor’s mother had lodged a complaint with a local police station in Odisha’s Jagatsinghpur district after she found the woman to be 16-week pregnant. She moved the HC in September, seeking permission to terminate her daughter’s pregnancy.
“The pregnancy of the victim has been forced and it is contrary to her choice. The rape survivor has been forced not only to carry an unwanted pregnancy, but is also forced to give birth to the child against her will. She will carry a stigma and humiliation for the rest of her life for the offspring born as a result of the rape. The situation compelled the court to give protection to her and the child. The court took into account the affidavit of her mother agreeing to take responsibility provided there is direction on financial and medical assistance as well as extension of co-operation by Srirama Chandra Bhanja (SCB) Medical College & Hospital in Cuttack, the CDMO and Jagatsinghpur district administration to both the mother and the child,” the judge noted in his order.
The HC held the state government responsible for the rape survivor’s sufferings. It directed the state government to pay an ex-gratia of Rs 5 lakh to her within seven days of the judgement and another Rs 3 lakh in case she gives birth to a male child and Rs 5 lakh for delivery of a girl child to make sure that the latter does not suffer throughout her life. The compensation amount would be kept in fixed deposit in any nationalised bank, stated the court order.
The HC said transport, medical and medicinal expenses, including accommodation of the survivor and her mother, would be the responsibility of Jagatsinghpur district administration.
The education of the child would be the responsibility of the state, the order added.
The HC pulled up the government officials for their negligence and observed that the unwanted pregnancy could have been avoided had they taken recourse to the Medical Termination of Pregnancy Act, 1971 when the matter first came to light in August.