Utt HC | Compelling to continue pregnancy, infringement under Art. 21; Rape victim allowed to terminate Intrauterine Fetus of 28 weeks 5 days

Uttarakhand High Court

Uttaranchal High Court: Alok Kumar Verma, J., decided on a petition which was filed by the father of the minor petitioner to issue a writ in the nature of mandamus commanding and directing the respondent to ensure immediate medical termination of petitioner’s pregnancy after taking all precautions as required to be taken medically and legally.

Petitioner, aged about 16 years, was a rape victim. The medical examination of the petitioner was conducted on 11.02.2022. She was advised Obstetrical Ultrasound (Sonography) test, which confirmed that she had a Single Live Intrauterine Fetus of 27 weeks 4 days (+) 15 days.

Monika Pant, the counsel appearing for the petitioner, submitted that the petitioner shall suffer mental injury if the pregnancy was continued and there will be multiple problems if the child would be born alive. The Co-ordinate Bench had directed the State to constitute a Medical Board and submit its report to the Court which concluded that considering the risk to the mother and fetal viability, it was not advisable to terminate pregnancy at that gestational age. Counsel appearing for both the parties agreed that the said report did not disclose whether death risk of the victim was involved.

The Court noted that the opinion of the members of the Medical Board was that there was a substantial risk to the life of the petitioner, if the medical termination of the pregnancy of the petitioner was conducted. They further submitted that at this stage of the pregnancy, the baby can be born with many anomalies. The Court further elaborated Section 3 of the Medical Termination of Pregnancy Act, 1971.

The Court reiterated the finding in Murugan Nayakkar v. Union of India, 2007 SCC OnLine SC 1092 wherein the Supreme Court had allowed medical termination of pregnancy beyond the statutory outer limit prescribed in the Act considering the fact that the victim was 13 years old and in trauma, even though the Board stated that termination will have equal danger for the mother.

There is a right to termination pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act.

In Suchita Srivastav v. Chandigarh Administration, (2009) 9 SCC 1 and in Meera Santosh Pal v. Union of India, (2017) 3 SCC 462, the Supreme Court held that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India.

Right to life means something more than survival or animal existence. It would include the right to live with human dignity. The father of the minor petitioner has expressed that the petitioner is not in a position to continue the pregnancy and if the petitioner is not permitted to terminate her pregnancy, there is possible grave injury to her physical and mental health.

The Court consequently considered it appropriate in the interest of justice to permit the petitioner to undergo medical termination of her pregnancy under the provisions of the Act with the following directions:-

  • The medical termination of pregnancy of the petitioner should be carried out by a senior most Gynecologist under the guidance of the Medical Board, constituted in compliance of the order dated 24.01.2022 of this Court, within 48 hours from the production of a copy of this order before the Chief Medical Officer, Chamoli.
  • During the procedure of medical termination, if they find any risk to the life of the petitioner, they have discretion to cancel the said procedure.
  • The Medical Board shall maintain complete record of the procedure of the termination of the pregnancy of the petitioner. The Medical Board shall collect the tissue and blood sample of the foetus for conducting DNA and other tests.
  • If baby is born alive, the Chief Medical Officer, Chamoli, the respondent no.2, and, Child Welfare Committee, Chamoli will do the needful in accordance with law.

[Ms. X v. State of Uttarakhand, 2022 SCC OnLine Utt 61, decided on 04-02-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

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