Ahmedabad— In a significant ruling, the Gujarat High Court granted permission for the termination of a 20 plus - week pregnancy for a minor rape survivor, while also raising a contentious discussion on girls' maturation and referring to historical practices. The order was passed on June 7 by Justice Sameer J Dave. 

In the previous hearing held on May 31, the petitioner's counsel had emphasized the potential adverse effects on the physical and mental health of the 16-year and 11-month-old girl if she proceeds with the pregnancy. 

The Justice said that the concern expressed by the counsel is influenced by the present era, as he referred to the Manusmriti to highlight the historical practice of girls marrying at an early age of 14-16 and giving birth to their first child by the age of 17.

It is worth mentioning that the Supreme Court in September 2022, ruled that all women, regardless of marital status, can obtain abortions up to 24 weeks into their pregnancies.

Previously, under India’s abortion law, married women either divorcees or widows, rape survivors, minors and mentally ill could have abortions up to 24 weeks into their pregnancies, but single women were limited to 20 weeks. 

Pregnancy result of a horrific rape incident 

The victim's father had submitted the petition to the court, on behalf of his daughter urgently requesting the termination of her pregnancy. The plea was made in light of the horrific rape incident she endured. As part of the legal proceedings, an FIR (First Information Report) was registered at the Anjar Police Station in District Kutch.

The accused has been charged under Sections 376(2)(n) and 506(2) of the Indian Penal Code, which pertain to the offense of rape, and under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which specifically addresses crimes against children. In addition to seeking termination of the pregnancy, the victim also appealed for the preservation of DNA samples as crucial evidence in the ongoing case.

Debate Reignites on the Relevance of Manusmriti in Contemporary Legal Discourse

During the court proceedings, Advocate Sikander Saiyed, representing the petitioner, emphasized that the victim, at 16 years and 11 months old, would suffer adverse mental health consequences if her pregnancy were to continue. He presented this argument to underscore the urgent need for medical termination.

However, Justice Dave expressed his reservations, suggesting that concerns about early motherhood might be influenced by the present-day context. He directed the advocate to seek insights from the experiences of previous generations, encouraging him to consult the girl's mother or great-grandmother.  “Go and ask your mother or great-grandmother,” he said. “They will tell you that in the past, 14 to 16 years was the normal age for girls to get married. By the time they (the girls) attain 17 years, they would deliver at least one child.”

He referenced Manusmriti, an ancient legal text, to support his viewpoint, urging the advocate to consider the text's perspective.

Dave said that the point he was trying to make is that “girls get matured before boys do. Four to five months here or there wouldn’t make much difference,” he told the lawyer. “It is there in Manusmriti. I know you will not read that but still read it for this once.”

He emphasized that the well-being of both the mother and the child was crucial. Justice Dave acknowledged that if serious ailments were discovered in either the fetus or the girl, the court would consider permitting the abortion.

However, in the absence of such complications, he implied that it would be challenging for the court to grant the termination order.

Subsequently, Justice Dave instructed the medical superintendent of Rajkot Civil Hospital to assemble a panel of doctors. This panel was tasked with evaluating whether the medical termination of pregnancy was advisable based on the specific circumstances of the case. The formation of the expert panel aimed to obtain a comprehensive medical opinion to inform the court's final decision.

The judge's statements, referencing historical practices and urging a broader perspective, coupled with the formation of the medical panel, demonstrate the court's cautious approach in considering the various aspects of the case, including the victim's age, mental health, and the health of both the mother and the unborn child.

Panel assess medical condition of the minor 

Following the court's order, the rape survivor was examined by a panel of doctors from the Gujarat Adani Institute of Medical Sciences, G.K. General Hospital in Bhuj, Kutch. The medical panel determined that she was 20 weeks and 1 day pregnant based on an ultrasound examination.

According to the panel's assessment, the risk of complications associated with the medical termination of pregnancy for the victim is similar to that of women in her age group and at her stage of pregnancy. Consequently, the panel recommended that the procedure be conducted without delay to mitigate the potential complications that may arise from further advancement of the gestational age.

Considering the facts of the case, the Medical Termination of Pregnancy (Amendment) Act, 2021, and the guidelines laid out by the Indian Medical Association, Justice Sameer J Dave delivered the judgment in favor of the termination. The court acknowledged the necessity of ensuring justice and legality in granting the medical termination of pregnancy for the victim, the petitioner's daughter.

Mixed Reactions on invocation of Manu Smriti

The court's invocation of Manusmriti and subsequent discussion on girls' maturation and historical practices have evoked mixed reactions from various quarters. 

Critics argue that decisions concerning reproductive rights should primarily focus on the present context, the rights of the individual, and the evolving legal landscape, rather than relying on outdated customs that may not align with contemporary perspectives.

Conversely, supporters of the court's reference to Manusmriti argue that understanding historical practices provides a broader contextual understanding and can inform contemporary judgments. They contend that the intention behind referencing historical norms was not to endorse or perpetuate them but rather to facilitate a comprehensive examination of the issues at hand.