Right to life & personal liberty includes right of woman to terminate pregnancy,where it is caused by rape/sexual abuse/unplanned pregnancy,subject to reasonable restrictions under law:Telengana HC

Read Judgment: XXX vs. Union of India & Others 

Pankaj Bajpai

Hyderabad, October 20, 2021:The Telengana High Court has observed that right to life and personal liberty enshrined under Article 21 of the Constitution of India, includes right of a woman to make a choice of pregnancy and terminate pregnancy, in case, where pregnancy is caused by rape or sexual abuse or for that matter unplanned pregnancy, subject to reasonable restrictions under law. 

The Bench of Justice B. Vijaysen Reddy observed that the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the petitioner.

The observation came pursuant to a petition filed by a 16-year-old minor victim through her parents seeking permission for medical termination of pregnancy as per the provisions of the Medical Termination of Pregnancy Act 1971 (MTP Act) as amended in 2021. 

Going by the background of the case, after finding from the medical diagnosis that the victim was subjected to rape and was 26-27 weeks pregnant, the Court initially directed the medical board to conduct a medical examination on the victim. 

The counsel for the victim argued that a woman has self-rule over her body which is a facet of right to life and liberty under Article 21 of the Constitution. 

The counsel further submitted that it is inhuman to subject a woman, who is over 24 weeks pregnant, to legal deferrals since the infringement of right to life of a rape victim outweighs the right to life of the child in the womb. 

After considering the arguments & pleadings, the High Court found that the circumstances which led to the petitioner’s pregnancy on account of unfortunate events of sexual abuse without any shadow of doubt would caused mental and physical stress and anguish to the petitioner. 

“Though there is restriction under the statute for terminating pregnancy, if the gestation of foetus is more than 24 weeks, it is settled law that the Constitutional Courts are empowered to direct termination of pregnancy. If the petitioner is compelled to continue with pregnancy caused by rape, it would infringe her right to life guaranteed under Article 21 of the Constitution of India”, observed the HC. 

Justice Reddy therefore directed the hospital (fourth respondent) to admit the petitioner, conduct medical examination and terminate pregnancy of the petitioner medically or through surgical procedure by taking all necessary precautions as may be required, within a period of 48 hours. 

Justice Reddy also directed that termination of pregnancy or surgical procedure shall be performed by a senior most Gynecologist of the hospital, which is directed to collect the tissue and blood samples of the foetus for conducting DNA and other tests. 

The High Court also assured that in case the petitioner applies for victim compensation, the Legal Services Authority of the High Court shall render necessary assistance to the petitioner and ensure that compensation as provided under law is adequately granted.