A Division bench of Madhya Pradesh High Court (Gwalior bench) has set aside an order by a single-judge bench denying permission for aborting a fetus after the woman alleged rape.
An intra court appeal was filed against the August 10 order passed by a single-judge bench refusing permission to abort a fetus more than 12 weeks old, but less than 20 weeks old. The division bench of Justices Sheel Nagu and Deepak Kumar Agarwal allowed the termination of the pregnancy and clarified that allegation of rape is sufficient to invoke section 3 of the Medical Termination of Pregnancy (MTP) Act.
In an order passed on August 10, bench of Justice GS Ahluwalia refused to grant permission for abortion of a fetus more than 12 weeks old, observing that the prosecutrix who alleged rape based on a false promise of marriage, knew fully well the pros and cons of her consensual sex with the accused.
The case was that the prosecutrix was in a relationship with the accused for 4-5 years, and he had promised to marry her on the pretext of which they had physical relationship as well. As the prosecutrix was in love with the accused she relied on his promise and they were having consensual sex. When she got pregnant, and the accused was asked to marry her, he refused. The prosecutrix thus came before the court that on the pretext of marriage the accused was having sex with her, and she should be permitted to terminate her pregnancy.
As per section 3 of the Medical Termination of Pregnancy Act, permission for termination of pregnancy can be given where the pregnancy does not exceed 12 weeks, or does not exceed 20 weeks, and two registered Medical Practitioners are of the opinion that the continuance of the pregnancy would involve a risk to life of a pregnant woman or a grave injury to her physical or mental health or there is a substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. The explanation 1 to this provision states that – Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
The prosecutrix was carrying a fetus of more than 12 weeks and was to be governed by the above-mentioned provision and adjoining explanation. The question the was considered by the court was that whether the sex was consensual or was the consent obtained by misrepresentation of facts.
“The petitioner is a major girl knowing fully well the pros and cons of consensual sex without any precaution. Even the FIR was lodged after it was detected that the petitioner is pregnant… This Court is of the considered opinion that since the petitioner involved herself in a consensual sex knowing fully well about the consequences of such act, and the allegations made in FIR, do not prima facie make out a case of consent obtained by misrepresentation of fact, therefore, under these circumstances, medical termination of pregnancy cannot be permitted,” the court said.
The August 10 order may be read here:
The court, in appeal, observed that the prosecutrix was subjected to illicit sexual intercourse by the accused on the false pretext of marriage which will adversely affect the social and mental status of an unmarried girl like the appellant/prosecutrix and her family cannot survive/sustain with dignity in the society peacefully.
The court perused the order passed by the single-judge bench and observed that the court prima facie deemed that the sex was consensual however it failed to consider that whether the promise of marriage was falser from beginning, or was it a case of breach of promise is a fact to be established at trial and the single-judge “ought not to have presumed presence of element of consent as a dissuading factor”.
The court compared the factual matrix of the case to the explanation 1 under section 3 of MTP Act and observed that it is amply clear that the prosecutrix has alleged that she was subjected to rape and the pregnancy arises from the said incident of rape. The explanation clearly states that when a pregnancy is alleged to have been caused by rape, the anguish is presumed to constitute “grave injury to mental health of the woman” which is a valid ground for terminating a pregnancy of less than 20 weeks.
The court added, “Since the period of pregnancy is below 20 weeks and she admittedly is subjected to grave injury to her physical and mental health due to said rape, this Court cannot stand in the way of the prosecutrix in getting her pregnancy aborted/ terminated.”
The court also clarified that under section 3 of MTP Act, if rape is alleged, it is not necessary for the allegation to be proved, which means that the factum of the allegation is sufficient to invoke provisions of section 3 and to allow termination of such pregnancy.
The court thus allowed termination of pregnancy if consent is expressly given and her physical condition is conducive for the same.
The August 28 order may be read here: