Right to Progeny and Termination Thereof is a Fundamental Right Under Article 21: Orissa High Court [READ ORDER]

While permitting a rape victim to terminate her pregnancy after 20 weeks of gestation, Orissa High Court has held clearly and commendably that right to progeny and termination thereof is a fundamental right enshrined under Article 21 of the Constitution of India.

The Orissa High Court delivered the judgment in WPCRL No. 68 of 2020 on December 15, 2020.

The bench raised specific query as to whether termination of the pregnancy at this stage would pose any threat to the life of the victim girl was not answered.

In this regards the bench relied on the Supreme Court Judgment in the case of Z vrs. State of Bihar, (2018) 11 SCC 572, wherein SC examined the right of a women to terminate the pregnancy. Thus the SC concluded that it is no doubt that right to progeny and termination thereof is a fundamental rights which springing from the right to life as enshrined under Article-21 of the Indian Constitution.

The bench noted the fact that a Single Bench of Orissa High Court in the case of Runa Majhi vs. State of Orissa 2020 SCC online Orissa 677, did not permitted termination of pregnancy of a mentally retarded victim who was 24 weeks pregnant and as the court found that none of the exceptions laid down in Section-3(4)(a) of the Act was applicable.

The learned counsel for the petitioner further submits that there are instances in which the Hon'ble Court as well as several High Court of the country have allowed medical termination of pregnancy beyond 20 weeks but less than 24 weeks. 

While holding their decision Orissa High Court discussed plethora of cases whereby the Supreme Court had permitted medical termination of pregnancy, even after 24 weeks.

He further added that In X. vrs. Union of India (2016) 14 SCC 382 medical termination of pregnancy of 23-24 weeks of a Rape victim was allowed by the Hon'ble Supreme Court to save the life of the woman.

In X and other vs. Union of India (2017) 3 SCC 458 after 24 weeks of pregnancy as the pregnancy involves grave risk to the life of the petitioner and possible grave injury to her physical and mental health, medical termination was allowed by the Hon'ble Supreme Court. 

In Meera Santosh Pal vs. Union of India (2017) 3 SCC 462 the Supreme Court held that women's right to make reproductive choice is also a dimension of personal liberty as understood under Article-21 of the Constitution.

Therefore, holding that there was possible grave injury to her physical and mental health as required under Section 3 (2) (i) of the Act though the pregnancy was into 24 weeks, having regard to the aforesaid consideration, the Hon'ble Supreme Court allowed the petitioner to terminate her pregnancy. 

In Murugan vs. Union of India WPC 749/2017 decided on 06.09.2017, the Supreme Court has allowed medical termination of pregnancy beyond the statutory outer limit prescribed in the 1971 Act considering the fact that the victim girl was 13 years old and in trauma, even though the Board stated that termination will have equal danger for the mother.

The bench also noted the reported cases of Z vrs. State of Bihar and Others, (2018) 11 SCC-572), Sheetal vs. Union of India (2018) 11 SCC 606, Sarmishta vs. Union of India, 2018 13 SCC 339 and Mamta vs. Union of India (2018) 14 SCC 289, wherein Termination of pregnancy has been allowed by different High Courts in some cases. 

The Bench particularly takes into consideration to case of Mujid Khan vs. Chhatisgarh 2018 SCC online CHSGH 791. In that case the petitioner was the father of the victim of rape and sexual violence.

The reasons which persuaded Orissa High Court to pass the order for termination of pregnancy are enumerated below:

1. Conception by the minor girl (victim) is a result of the offence of rape committed by Opp. Party No.5. This fact is well decipherable from the statement under Section 164 Criminal Procedure Code, 1974 of the victim girl as well as her statement before the medical Board.
2. The unwed mother (victim girl), is a minor and has to undergo the ignominy of an undesirable pregnancy. It will hamper her further physical and mental growth. It will also affect her future education prospects.
3. The social sigma the minor victim will face will be insurmountable in this case as the petitioner and his daughter belong to very humble walk of life.
4. The social sigma the unborn child will face is also a matter of great concern to us as the child will definitely be viewed with disdain and will be looked down upon as an undesirable child by his/ her peers in society.
5. The Medical Termination Of Pregnancy Act, 1971 does not allow medical termination pregnancy after 20 weeks , the Central Government in its wisdom has introduced a bill for enhancing this period to 24 weeks . From the statement and objects of the reasons of the Amendment Act of 2020, it is apparent that the present development of medical science makes it imperative for the amendment of provision of Section 3 of the Act to extend this permissible outer limit of pregnancy for termination.
6. The committee in this case has also opined that the mental health problem of the victim may have adverse impact on the future of the victim on social ground.
7. The Committee has not recommended for termination in view of Sec-3 of the Medical Termination Of Pregnancy Act, 1971  but has not stated that termination of pregnancy at this stage will pose any threat to the life of the victim girl.

Going ahead, the Bench then held that:

In view of the above, we dispose of the writ application as well as the interim application, with the direction to the Medical Board Committee already constituted under the Chairmanship of the DMET to carry out the medical termination of pregnancy of the victim girl. But if during the procedure it is found that there is any danger to the life or well being of the victim girl, they have the discretion to cancel the same. However, we hope and trust that our orders shall be given effect to without any further delay.

[READ ORDER]