SC allows mentally challenged rape victim to give birth

New Delhi, July 21 (PTI) In an order of far-reaching
implications, the Supreme Court of India Tuesday allowed a
mentally-challenged orphan and rape victim to give birth to
her child saying nature will give protection to them.

"We are not in favour of termination of pregnancy," a
three-judge Bench headed by Chief Justice K G Balakrishnan
said overturning a Punjab and Haryana High Court order
directing the termination of pregnancy of the 19-year-old
girl, who was raped at a Nari Niketan (Women's Home) run by
the Chandigarh Administration.

Her mental age, according to psychiatrists, is said to
be between 7 and 9 years with an IQ of that age group.

"We stay the operation of the High Court order," the
Bench, also comprising Justices P Sathasivam and B S Chauhan
said in a short order.

Taking note of the statement of psychiatrist and the
gynaecologist that the woman has to be under constant
supervision, the Bench said "if that is guaranteed, why
terminate the pregnancy."

"Nature will take care on its own," the Chief Justice
said.

The order brought memories of a Bombay High Court
judgement last year in a case in which they rejected a plea of
a woman to abort her foetus, which was over 20 weeks, on the
ground she feared complications to the baby.

The Court said detailed reasoning for their decision
will be delivered later.

Time is running out for the victim as she is in the
19th week of pregnancy and under the law medical termination
of pregnancy is prohibited after the 20th week.

"We are worried about her. More so, because she is an
orphan and does not have social support," the Bench said
adding "time is also very less".

The judges said that from the beginning they were
having only one concern whether the victim was in a physical
condition to give birth to the child.

The psychiatrist and gynaecologist, who had examined
the victim and were present in the courtroom, said she could
deliver her child under full support and care but there are
chances of serious mental implications on the mother and
child.

The Bench, which was apprised of the physical and
mental health of the victim and the situation likely to emerge
after the delivery, was optimistic that the healing touch
would come from the nature.

"Nature will give some protection," the Bench observed
repeatedly during the hearing but stayed the High Court order
only after it was satisfied that there is a statutory body to
take care of child born out of such situation.

Advocate Tanu Bedi, who argued that the victim has a
right to give birth to child, drew the attention of the court
to a law under which welfare of such persons are taken care.

She said under the National Trust for the Welfare of
Persons with Autism, Cerebral Palsy, Mental retardation and
Multiple Disabilities Act, 1999, such children are taken care
of.

The lawyer for the National Trust said an affidavit
will be filed in this regard.

However, advocate Anupam Gupta, who appeared for the
Chandigarh Administration, vehemently argued for retaining the
High Court order.

He said the court has to be strongly practical and
take a realistic view of the situation in the light of the
expert report which deals with the mental impact that is
likely occur both for the mother and the child.

"There can be true, genuine and efficacious surrogate
father or mother who can bear for the life-long and continuous
responsibility of the child.

"However, emotional euphoria and commitment to
improve the lot of the mentally retarded cannot be a
substitute for knowing their actual condition on ground,"
Gupta said.

The Bench, which gave a patient hearing to the
submission of Gupta said said "we are sure that somebody will
be in a position and come to give protection to the child".

The court even posed question that "is it not possible
for the Union Territory Administration to take care of the
child".

During the hearing, the second report of the expert
team was read out. It described the victim as mildly mentally
retarded unable to undertand the concept of pregnancy and
conception and has the understanding of a child of seven to
nine years. She was raped by two security guards.

Bedi had argued that "doesn't she have the right to
have her first known blood relation?"

The High Court had passed the direction on July 17 for
termination of her pregnancy after considering two reports of
an expert conmmittee involving doctors and psychiatrists.

The counsel for the victim said it was her fundamental
right to give birth to a child and the administration was
running away from its responsibility of providing care and
support to her and her would be child.

"Child is not allowed to be born," she alleged and
added "a woman has to come to the court with a plea to allow
her to have her baby".

"This child will be the first blood relation of the
orphan who was raped and ravished," the woman counsel said.

Senior advocate Colin Gonsalves, appearing for the
social worker Veena, said an interaction with the victim
revealed that she was not in a position to understand what was
happening to her.

He said the reports of the experts suggested she had
a spinal problem and other medical complications which may
result in the birth of premature baby which would be fatal
both for the mother and the child. PTI RKS
pmr
NNNN



The information contained in this electronic message and any attachments to this
message are intended for the exclusive
use of the addressee(s) and may contain proprietary, confidential or privileged
information. If you are not the intended
recipient, you should not disseminate, distribute or copy this e-mail. Please
notify the sender immediately and destroy
all copies of this message and any attachments contained in it.