On December 18, the Madurai bench of the Madras High Court delivered a verdict which shook the conscience of many in the state – the court refused to allow abortion for a 12-year-old rape survivor. Doctors had opined that it was too dangerous to conduct the surgery as she was over 24 weeks into her pregnancy. Reports stated that the court had granted her compensation of over Rs 5 lakh and even asked the government to bear all expenses. What many reports, however, failed to mention was that if not for the apathy of the police and judicial delay, this young girl who was raped by her 70-year-neighbour, wouldn't have had to face the additional trauma of childbirth.
Anitha*, a Class 7 student Dindigul district, was first raped by her neighbour in May this year. She did not confide in anybody about the abuse and it was only in October that her mother found out, but the girl was over 20 weeks pregnant by then. Shocked, the mother, a daily wage worker, rushed her daughter to the Government Rajaji Hospital in Madurai on October 31. Medical practitioners are however disallowed to perform abortions when the gestation period is beyond 20 weeks and the hospital made it clear that it required an order from the High Court to carry out the procedure.
"Even at this point, if Anitha and her mother had been told to approach the court immediately, it would have been possible to get the abortion done. By the time it reached court, she was close to 24 weeks pregnant and in such a case only the High Court can decide on whether an abortion can be conducted," says M Sasi, the advocate for the victim, appointed by the District Legal Services. "Her illiterate parents, who do not understand what has to be done, were let down by the police who chose to shame them instead of instructing them to go to court immediately," he adds.
Medical experts who spoke to TNM stated that in India, it was deemed unsafe to conduct the procedure after a gestation period of 20 months. However, in situations involving pregnancy due to rape, they have performed abortions upto 24 weeks, which is considered safe in the West.
So why didn't they act immediately?
The lawyer says that as per rules, the hospital immediately informed the Madurai police about the rape of the minor and the Dindigul All Women's Police Station was alerted about the crime. But it was only on November 3 that an FIR was even filed, along with a medical report from the hospital.
"The police accused the young girl and her mother of prostitution and spoke very badly to them. They verbally harassed the family and were reluctant to take up the case for four days. Instead of treating the 12-year-old as a minor victim of rape, they chose to blame her for the pregnancy," alleges advocate Sasi. "The parents were completely heartbroken and became suicidal. They even moved from their residence fearing social ostracization. The police's insensitive attitude made things even harder for them," he adds.
The victim's counsel further alleges that the police did not immediately make legal aid available for the family, forcing them to look for a private lawyer. And while the District Child Welfare Commission was informed, they failed to immediately intervene, allegedly due to ongoing changes in the constitution of the committee across the state.
And while Anitha was falling through the gaps in the system, the police were focusing on the criminal aspects of the case. They arrested the neighbour and booked him under several sections of the Protection of Child from Sexual Offences Act (POCSO).
"The case should have been heard by the High Court on the very same day that the medical report was readied," says Girija Kumarbabu of the Indian Council for Child Welfare. "The health department and the legal department need to coordinate to ensure that the court is reached on time and given proper instructions. Our whole focus should be on helping the child," she adds.
It was only 20 days after the FIR was filed, on November 23, that a writ petition was filed at the Madurai bench of the Madras High Court. A day later, the District Legal Services finally intervened, appointing advocate Sasi to represent the victim. By then, though Anitha was already over 24 weeks pregnant, the wait for a decision became longer. From a single judge bench, the case was transferred to the division bench. The case was posted to December 6 and the Madurai bench requested for another medical examination, which took five days for the hospital to submit.
At this point of time, Anitha was 30 weeks pregnant and was declared unfit for medical termination of pregnancy.
"When the competent medical professionals have, after examination of the minor victim girl, rendered an opinion that it is unsafe to terminate the pregnancy, we cannot either ignore such an opinion and substitute our opinion and issue a direction for termination of the pregnancy," said the court on December 18. "In a situation of this nature, we have to accept the opinion rendered by the competent medical professionals and are left with no other alternative option but to refuse the prayer sought for in this writ petition," the bench stated.
"First, the police blame a minor rape survivor for her condition and then when the parents finally manage to come to the judiciary they are made to wait for weeks to get a verdict. Now, we don't know if Anitha will survive this delivery," says Sasi. "Together, they have put the lives of two children at risk."
And while Anitha has been failed, in several similar instances followed by TNM the police and judiciary have been proactive in their approach to help victims. In this story, we have chronicled how multiple systems come together to ensure speedy abortions when a minor is raped.
*name changed to protect identity