The Girl Without a Choice

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She is an alleged rape victim, thirteen years old and seven-month pregnant. In an Uttar Pradesh village, Nandini Nair meets the girl and her family caught between shame, stigma and injustice

THE GIRL SITS on the earthen floor of the chhat. Her long plait, complete with a worn out black parandi, runs down her back. She is dressed in a floral kurta, her best one, as she had to travel into town earlier in the day. Her face is impassive, her lips mute, a smile slips out only at the antics of the younger children. Three children (of indecipherable age) gambol amidst bedding arranged on the terrace. The girl’s family—her parents and eight siblings (six boys and two girls)—sleep under the sky at night. The children build a tower of cushions on the youngest one and proceed to fling themselves upon it. Their giggles and squeals, hoots and laughter, merge with the evening call of the birds. Their mother makes rotis on a mud chulah on the side and pays little heed to the glee of her progeny. Despite cajoling, even pestering, the girl refuses to talk. She turns her back to questions and remains like that, not uttering a word. She hears everything, and says nothing. A golden orb of a sun sets in the horizon on this village of Bairam Nagar, in Rampur district, 50 km outside Bareilly. This could be just another dusk in just another Uttar Pradesh village.

But it is not. Dozens of neighbours stand upon the adjacent chhats, craning to get a glimpse of the girl. The presence of a taxi parked in front of her kachcha house has brought hordes to her doorstep. This Muslim-dominated village plunges into darkness at sunset. A generator provides a single bulb in her house a few hours of electricity at night. In such a village, a car is not merely a rarity, it is an aberration. The onlookers mill around but few words are exchanged. They come out of curiosity, not goodwill. Born in October 2003 (according to her school certificate), the 13-year-old girl is nearly seven-months pregnant after an alleged rape. Today she is the scandal of the village and a headline in the media; her petition to terminate her advanced pregnancy has reached the Allahabad High Court. The only ‘news’ items that Google throws up for Bairam Nagar is her story. No other incident from this village, in recent history, has snuck out to make national news. Hers is a story of power versus ignorance and pelf pitted against poverty.

The Medical Termination of Pregnancy (MTP) Act 1971 states that a pregnancy may be terminated by a registered medical practitioner if the length of the pregnancy does not exceed 12 weeks. When the length exceeds 12 weeks but not 20, it can be terminated only if two medical practitioners believe that the continuance of the pregnancy will risk the life of the woman or if there is a substantial risk that if the child were born, it would suffer from severe physical or mental abnormalities. The Act also makes special mention that a pregnancy between 12 and 20 weeks can be terminated if the ‘pregnancy is alleged by the pregnant woman to have been caused by rape’.

By the time VP Dhyani, the lawyer appearing for the girl, filed an FIR against the perpetrator on 7 June, she was days away from the 20-week window. (A medical report dated 8 September states that she is 28-weeks pregnant.) The FIR lays out in detail the sequence of events. The girl used to work in the house of the perpetrator. There he raped her. ‘Sharmo haya ke darr se [beti ne] kisi ko kuchh nahin kaha (Out of shame and fear my daughter did not reveal anything to anyone),’ the FIR registered by the father reads. The rapist continued to threaten her after the rape. One day a family member noticed the girl’s growing stomach and asked her about it. It was only then that she revealed she had been raped. She then went to the boy’s house and asked him to marry her. But his brothers and father abused her and beat her up. It is after that attack that her father filed an FIR.

The lawyer says the boy (around 22 years of age) is in jail today. The charges in the FIR are under Section 376 (rape), Section 323 (voluntarily causing hurt) and Section 504 (intentional insult). Speaking on the phone, on a train to Allahabad, Dhyani says he filed an application for the girl to have an abortion in a lower court on 25 July. The court rejected that plea. The sessions court and the fast-track court similarly refused the case on grounds that it would violate the MTP Act. Speaking to The Times of India, Additional District Government Counsel (ADGC) Suresh Babu Sahu, said, “I opposed the termination of the pregnancy on the basis of Section 3 of Medical Termination of Pregnancy Act. It is clearly mentioned that the period of pregnancy should not exceed 12 weeks for abortion. The length of pregnancy can exceed 12 weeks but not 20 weeks if it involves a risk to the life of the pregnant woman or of grave injury to her physical or mental health.”

According to Dhyani, the High Court of Allahabad advised that her case be taken to the Chief Medical Officer (CMO) of Bareilly on 29 August. The case finally landed on the desk of CMO Vijay Yadav on 5 September. Newspaper reports have alleged that Yadav was too busy officiating ‘Tehsil Diwas’ to attend to the girl and father, and thereby caused a crucial delay. When we meet Yadav in his office in the district hospital, he bristles at these allegations. “What delay, why delay, where delay?” he hollers. He accuses the girl’s lawyer of planting stories, and harangues the media for running the same. The CMO filed his report on 14 September after instituting a medical board to examine the girl and conducting an ultrasound on her. Following the stipulations of the MTP Act, it did not recommend an abortion.

The MTP Act, as mentioned earlier, allows for the termination of pregnancies between 12 and 20 weeks in special cases. However, there have been cases where terminations have occurred after that period as well. Last July the Supreme Court allowed a 26-year-old alleged rape victim to abort a 24-week old foetus with severe abnormalities as the medical board declared that there was a danger to the mother’s life. The order stated, ‘risk to the mother of continuation of pregnancy can gravely endanger her physical and mental health… the Medical Board advises that the patient Ms X should not continue this pregnancy.’ Senior advocate Colin Gonsalves, who appeared for the 26-yearold, says that the deadline of 20 weeks was fixed by the Act in 1971 as the techniques for abortion at the time were “primitive”. Today, he says, an abortion can be done even up to the 33rd week. Gonsalves, who is a Senior Advocate of the Supreme Court and the founder-director of Human Rights Law Network (HRLN), believes that it is time that the time period be extended from 20 to at least 26 weeks. Listening to the case of 13-year-old girl, he calls it a “shame” that she has been denied the right to terminate the pregnancy. He says, “The health of a mother is not just the beating of her heart. If you look at her mental health, it means her entire well being. We cannot look at human life as animal existence. It is a question of human dignity for this young girl.”

There are eight children in this house already. How am I going to look after one more?

THE MTP ACT raises these fundamental questions. Should a woman be allowed to abort on her own accord at any time during the pregnancy? Who has the right to ‘police’ her body? Justice K Kannan (a former judge of the Punjab and Haryana High Court and presently Chairman of the Railway Claims Tribunal, Delhi) has written extensively on abortion and the MTP Act. Speaking on the phone, he says that the issue boils down to the “primacy of decision making” and that he would like to “see women empowered”. But even he doesn’t have a final answer, he adds, as safety can take a beating in late termination cases. The MTP Act, Kannan says, was tabled in 1971 by Dr S Chandrasekhar, a demographer and the Union Minister for Health and Family Planning at the time, with a view to curb India’s growing population. The Act even specifies that a pregnancy can be terminated if the pregnancy occurs as a result of a ‘failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children’.

But for a 13-year-old in a village in the heartland and her father, little of this matters.

The girl’s case has gone from court to court, from one administrative officer to another. With each passing week, the window for the abortion closes further. The lawyer is quick to blame the courts and administration. But the delays have been incremental rather than extended. Her story reveals the underbelly of a village in UP and gaps in legislation, rather than a miscarriage of justice. She was nearly four months pregnant before she even told anyone of the rape. She harboured hopes of a marriage, but now only sees hardship ahead. Rumours are rife that the man and she were having an affair, and that he reneged on a promise of marriage. But those details do not detract from the fact that the girl is a minor, she was abused and she has been abandoned.

The FIR states that she is 18 years old. Her father tells us this was done at the behest of the perpetrator, in cahoots with the village Pradhan, in a bid to weaken the girl’s case. It took the family many weeks to get the school ‘leaving certificate’ to put her correct age on the official record.

How can a 13-year-old begin to make sense of what has happened to her? Once the sun has set, and at the insistence of her father, she relents and answers a few questions in the comfort of the dark. The house grows oppressively warm. The youngest child in the household, with leaky eyes and a distended belly, clings to her. She feeds him a soggy green chip. He is three years old, the girl says, but he can barely stand up straight. What do you want, I ask? “Main bachcha giraana chaahti hoon (I want an abortion),” she says. Does she feel she is too young to have a child? “No,” she replies. Why doesn’t she want a child? Her reason is simple: there are eight children already in this house. How is she going to look after one more? Do you still want to marry him? She says she doesn’t think he will marry her now, it is too late. If there was to be a nikaah, it would have happened earlier. The father had first said that he would not be able to raise an illegitimate child in his house, because of the stigma it would bring. But now, as time runs out, he says he will have no option but to accept the child.

The girl’s father works as an agricultural labourer. When there is no employment in the village, he goes up to the foothills and breaks bricks for roads. He is illiterate, like everyone else in his family. None of his eight children attends school. The father thinks it’s of no use. He says his daughter studied for a few years but cannot even write her name. A young boy (of around 10) sits on the chaarpai smiling. He remains there all evening unmoving and does not join his siblings in their games upstairs. He is blind. He started to lose his vision a few years ago after he was hit by a cricket bat in a game. He can barely see now. The father says he has spent money on his treatment but nothing has worked.

The girl had never left Bairam Nagar before June. But over the past few months, this family, with little money and scant prospects, has shot out of obscurity and landed into the world of officials and lawyers, hospitals and courts. The journey from the village to Bareilly takes them two-three hours. They have to traverse a broken road on foot for around 6 km to reach the stand for shared autos, which will take them first to Ghaneja phatak (a railway crossing) and then towards Bareilly. The father never had a cellphone till a few months ago. Since he can’t read or write, he can’t save contacts, but has started to identify numbers with the voice of callers. Islam Hussain, a helpful—more importantly, a literate— neighbour, has been helping the family with their official work. The word that often pops up in conversations regarding the family is ‘laachaar’ (helpless).

But it is testimony to the father’s will that he believed the courts would help him. Dhyani realises that with every week, the chances of a termination reduce. He hopes that if the girl is forced to have the child, it will be adopted by someone. Pausing his legalese and speaking over the chugging of a train, he turns philosophical and says, “Gareebon ke paas sirf Bhagwan hai (The poor have only God to turn to.)”