Gujarat HC on abortion plea: invocation of Manusmriti

1. Observations made by single-judge Justice Samir Dave during the hearing.
2. Is the invocation of Manusmriti pertinent?
3. Have there been prior cases similar to this?
• 3.1 July 2022
• 3.2 August 2022
• 3.2 December 2022

1. Observations made by single-judge Justice Samir Dave during the hearing.

   A minor rape victim whose father filed a plea sought to end her seven-month pregnancy was informed by the Gujarat High Court that in olden times females would generally get married at the age of 14 or 15 and give birth by the time they were 17; also asked the victim to ask her mother and grandmother about the same, and to study the Manusmriti to see such mentions.  at affordable prices can be find from this website.

   However, requested a medical opinion from a Rajkot hospital and scheduled a follow-up hearing for June 15.

2. Is the invocation of Manusmriti pertinent?

   It's possible that controversy would arise as a result of the Gujarat High Court's use of the Manusmriti, an old Hindu legal text, in a decision regulating abortion. The court's use of Manusmriti to emphasise the ancient practise of child marriage and early motherhood has the potential to cause concern in the modern world. 

   Mentioning Manusmriti, a book infamous for its patriarchal and discriminatory content, conveys a backwards message and undercuts the values of gender equality and human rights. Manusmriti has clauses that limit women's rights, restrict property inheritance, and encourage gender-based discrimination. 

   Manusmriti may be seen as the court's endorsement or justification of child marriage, which is prohibited in India by the Prohibition of Child Marriage Act, 2006. The Act was passed in order to safeguard the rights and welfare of children, especially girls, and to counteract early marriage's negative consequences, including denial of education, elevated risks to health, and violation of basic rights.

   The importance of past practises to the court should not take precedence over the current requirement to safeguard children's rights and welfare. They contend that rather than relying on antiquated societal standards or religious scriptures that could perpetuate inequity, choices surrounding pregnancy termination should be based on current legislation, medical needs, and the best interests of the persons concerned.

    Manusmriti being the old Hindu legal text essentially captures the customs of its time. It offers instructions for numerous aspects of life, including legal, religious,  and social issues. It is thought to have been composed between 200 BCE and 200 CE. It exhibits the customs and social mores of a different era. 

   There are preposterous mentions in the verses of Manusmriti which if the court ends up citing in further such judgments, it would be a matter of cackle. Below is one of the many verses.

   9.94. “A man, aged thirty years, shall marry a maiden of twelve who pleases him, or a man of twenty-four a girl eight years of age; if (the performance of) his duties would (otherwise) be impeded, (he must marry) sooner.”

   Even if the citation of Manusmriti was taken into consideration, there is no such explicit mention of the age a girl is supposed to give birth.

3. Have there been prior cases similar to this?

   There have been multiple judgments in the previous year where the minor rape survivor who was pregnant over 24 weeks were granted permission from to the respective courts to undergo the termination of pregnancy.

4. In July 2022, The Delhi High Court granted permission for a minor rape survivor to have her pregnancy medically terminated after 26 weeks. The court reasoned that if she had to endure the burden of motherhood at such a young age, her agony and suffering would be made even worse. According to Justice Yashwant Varma, forcing the petitioner to experience the pregnancy would leave a lasting psychological scar on her and seriously harm her mental health. The judge stated that the court could not imagine a more serious violation of her right to life and the emotional and physical suffering she would have to go through if she were made to shoulder the demanding responsibilities of motherhood was inconceivable.
5. In August 2022, the Kerala High Court authorised the medical termination of a minor rape survivor's 28-week pregnancy based on the findings of a medical board that had examined the girl and concluded that the "anguish caused by continuation of the pregnancy can be presumed to cause a grave injury to the mental health of the 14-year old girl." 
6. In December 2022, the Uttarakhand High Court permitted a 13-year-old to end her 25-week pregnancy because she was a juvenile and the pregnancy may have harmed her mental development.

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Author- Smriti Singh
Pursuing BA LLB from NMIMS Kirit. P. Mehta School of Law, Mumbai