New Delhi: The Delhi High Court Wednesday issued guidelines for abortion in cases of sexual assault, noting that a victim cannot be forced to give birth to a child as it would violate her right to live with dignity.
The judgment delivered by a single-judge bench of Justice Swarna Kanta Sharma was uploaded Thursday on the Delhi HC website. The judge observed that crucial time is lost in the process of passing termination orders. It issued a slew of directions to investigating officers in cases of pregnancies exceeding 24 weeks.
Notably, Section 3 of The Medical Termination of Pregnancy Act, 1971 allows a registered medical practitioner to terminate a pregnancy between 20 and 24 weeks.
However, it allows such termination only in specified categories, including survivors of sexual assault, minors etc. It is only permitted where continuance of the pregnancy will pose a threat of grave physical or mental injury to a woman.
The court was hearing a petition moved by a 14-year-old victim of sexual assault who sought abortion in the 25th week of her pregnancy. The victim was assaulted while her parents, who keep watch at construction sites, had gone out for work.
Allowing the petition, the court noted the peculiar circumstances of the case and held that a constitutional court has extraordinary powers to terminate pregnancy even beyond the 25th week, noting the unexplained miseries of the victim’s family.
The court’s directions come as the Bombay High Court earlier this week upheld a woman’s exclusive right to choose whether to terminate her pregnancy.
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Right of woman
The Delhi High Court said that while the MTP Act does not allow for termination of pregnancy in the 25th week, constitutional courts have ‘extraordinary powers’ to allow such termination even beyond the provided 24 weeks.
Justice Sharma noted that a judge must not only take cognizance of the facts and the law, but also the social contexts and repercussions of such orders.
She said the court was presented with a circumstance where it must examine and address the sufferings, psychological trauma and sense of defeat of the victim’s family.
It held that the woman has the right to choose whether she wants to continue with the pregnancy and she cannot be fastened with the responsibility of motherhood against her will.
“To force the victim to give birth to the child of a man who sexually assaulted (her) would result in unexplainable miseries,” the court noted.
It also highlighted the need to protect the rights of persons living and working at construction sites and ensuring safety and education of every child. The court noted that the 14-year-old victim was unable to go to school due to her parents’ poverty
“The present case is also an example of how one tragic event of sexual assault has changed the entire life of the family who is struggling to feed their children and end up with a minor daughter impregnated due to sexual assault.”, it noted.
Mandatory urine tests, present on same day
It noted that in cases of sexual assault, urine tests for pregnancy are to be mandatorily conducted during medical examination of victims, which was not being followed previously.
“At the time of medical examination of a victim of sexual assault, it will be mandatory to conduct a Urine Pregnancy Test, as in many cases, this court has noticed that such test is not conducted.”, the court said.
In cases where adult victim wishes to terminate her pregnancy, the investigating officer must ensure that the victim is presented to the medical board on the same day, it said.
However, where the victim is a minor, consent of her legal guardian will be required to be placed before the medical board and the courts.
In Delhi, four such medical boards have been established at AIIMS Hospital, Dr. Ram Manohar Lohiya Hospital, Safdarjung Hospital and Lok Nayak Jai Prakash Narayan Hospital.
(Edited by Smriti Sinha)
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