‘Fully developed foetus has right to life’: Rajasthan HC turns down 11-year-old rape victim’s abortion plea

In its order, which was passed Wednesday but made public on Friday, a bench of Justice Anoop Kumar Dhand said the delay by the child in approaching the court “has only further aggravated the said aspect” of termination of pregnancy, and relied on the Medical Board’s statement and existing judgments to turn down the request.

“The medical report indicates that foetus is gaining weight and is close to its natural birth. Vital organs, like brain and lungs are almost fully developed, preparing for life outside the womb. The foetus has, in fact life with heart beats, hence termination of pregnancy, at this stage, is not advisable and possible. The fully developed foetus also has right to life under Article 21 of the Constitution of India to enter in this world and live a healthy life without any abnormalities,” the court said.

The FIR in the case was lodged against the child’s father under multiple sub sections of Indian Penal Code Section 376 (punishment for rape) as well as sections of the POCSO Act.

Speaking to The Indian Express, the victim’s lawyer said the girl’s mother was intellectually impaired and the father himself was accused of raping her.

“She told her uncle about the wrong things her father used to do with her and that he also used to threaten her. As of the day of judgment, she was 31 weeks and 2 days old pregnant,” the lawyer said.

The child was examined by a Medical Board on January 17. As per the Board of four doctors, considering her age – 11 years – and weight of 34.2 kgs and her “deranged liver function tests, she is a high risk case with regard to her pregnancy.”

The Board said that “termination of pregnancy would not be safe for the petitioner and the same would be life threatening, due to her advanced gestational period and the age of minor victim.”

“There is no material available on record on the basis of which this Court may differ with the opinion expressed by the Medical Board, hence under these circumstances, if any direction is issued for termination of the pregnancy of the petitioner, at this advanced stage, the same would endanger the life of the minor victim,” the court said.

The court cited a 2023 Supreme Court case, where a woman was 28 weeks pregnant, as well as two matters before the Punjab and Haryana High Court where it declined to grant permission for termination of pregnancy to minor rape victims, who were of similar age to the 11-year-old, to conclude that “this Court has no valid reason to take a different view.

While her father being an accused and mother suffering from intellectual impairments, the court said that the child can stay at a Balika Grah till she becomes an adult.

The court also issued several directions to the state government to ensure her well being, including directions to incur the costs of delivery and that she be permitted to stay and study at Balika Grah till she becomes an adult.

The court also directed the superintendent of the hospital where she was examined and has been asked to deliver the child, to retain and preserve the tissue, cord and blood sample of fetus for the purpose of DNA analysis by Forensic Science Laboratory (FSL) and the same be handed over to the Investigating Officer as and when required.

Upon birth, the child may be handed over to the Child Welfare Committee which may put him or her up for adoption in accordance with law.

The court also directed The Rajasthan State Legal Services Authority (RSLSA) and the District Legal services Authority (DLSA), Jaipur, “to pay suitable amount of compensation to the petitioner victim in terms of the provisions contained under the Rajasthan Victim Compensation Scheme, 2011.”