The Supreme Court on Tuesday said that an HIV positive destitute woman, who was raped on the streets of Patna and is 26 weeks pregnant, cannot abort the foetus as a medical report has suggested it would be risky for both.
A bench of Justices Dipak Misra and A M Khanwilkar said the 35-year-old woman, being a rape victim, was eligible for compensation under the provision of CrPC and directed Bihar government to pay her ₹3 lakh within four weeks.
The apex court also asked the state government to provide her all medical facilities at Patna's Indira Gandhi Institute of Medical Science (IGIMS) as per the treatment chart, which would be given to her by the doctors of All India Institute of Medical Sciences (AIIMS).
The bench referred to a report of AIIMS's medical board, which had examined the woman, and said the doctors have opined that at this stage, the procedure involved in termination of pregnancy would be a risk, both to the woman and the foetus.
The report, which was placed before the court, also said that the woman has been advised antiretroviral therapy (ART) to reduce the risk of HIV transmission to the foetus.
"In view of the aforesaid opinion, it is an accepted position at the bar that there cannot be termination of pregnancy," the bench said.
During the hearing, advocate Vrinda Grover, representing the woman, said the victim was entitled to compensation from Bihar government and she should be awarded separate compensation for the negligence by the authorities there, which has led to this situation.
"Needless to say, the petitioner (woman) is eligible to get compensation under the said scheme (section 357-A of CrPC) and therefore the petitioner shall be paid sum of ₹3 lakh (by Bihar) as she has been a victim of rape," the bench said.
Additional Solicitor General Tushar Mehta, representing the Centre, told the bench that the government would make appropriate arrangements, so that the woman, who is presently in Delhi, be sent to back to Patna.
When Grover said that doctors at AIIMS should give an appropriate treatment graph to the woman, Mehta said it would be given to her by tomorrow.
The bench also granted liberty to the petitioner to file an additional affidavit with regard to other aspects of the compensation within four weeks and asked Bihar to respond to it as well as on the plea filed by her.
The apex court, which as an interim measure stayed the operation of the Patna High Court's order which has been under challenge before it, has fixed the matter for further hearing on 9 August. During the brief hearing, the bench asked the advocate appearing for Bihar whether the state had contested the woman's plea before the high court.
When the counsel said "yes", the bench shot back, "What right did you have?"
"The question is when the matter was listed before the high court, somebody should have opened the 1971 Act (Medical Termination of Pregnancy Act) and say this is the law," the bench observed.
The apex court had earlier said it would not go into the orders of the high court which had held that the medical board's report has stated that it would be unsafe for the life of the petitioner and there was a compelling responsibility of the state to keep the child alive.
The High Court had said the woman's pregnancy had crossed the legal embargo of 20 weeks under the Medical Termination of Pregnancy Act, 1971.
The petitioner had told the apex court that high court had failed to appreciate that the woman was 35 years of age and completely fit to make her own reproductive choices without any interference.
In her plea, the woman said she was a destitute and had come to know about her pregnancy for the first time around the 13th week, and that too after she was rescued by Shanti Kutir, a Women's Rehabilitation Centre, and taken a pregnancy test on 26 January.
She was deserted by the husband, while her parents had refused to accept her because they claimed she is of "unsound mind".