Delhi High Court: In a case wherein a minor approached the Court through her mother under Article 226 of the Constitution praying for issuance of directions to the respondents to conduct medical termination of her pregnancy under Medical Termination of Pregnancy Act, 1971 (MTP Act), a Single Judge Bench of Swarana Kanta Sharma, J. allowed termination of pregnancy of around 25 weeks and observed that in the cases of sexual assault, denying a woman the right to say no to medical termination of pregnancy and fastening her with responsibility of motherhood would amount to denying her human right to live with dignity as she had a right in relation to her body which included saying ‘Yes’ or ‘No’ to being a mother.
In September 2022, the minor child, R (petitioner) who was aged 14 years, was sexually assaulted, and raped by the accused named in the FIR. Initially, the petitioner did not inform her mother of the sexual assault as she was scared, however, after her mother, H noticed the physical changes in the petitioner, the petitioner disclosed to her mother about the sexual assault. Thereafter, a FIR was registered under Sections 328 and 376 of the Penal Code, 1860 (IPC), and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
The petitioner underwent a medical test/USG in which she was found 24 weeks and 5 days pregnant. The Investigation Officer (IO) approached the Child Welfare Committee-X and R along with her mother were produced before the Board, where they stated that they did not wish to continue with the pregnancy of her daughter and that she wished to continue her education. However, it was found that she was beyond the permissible gestational age limit under the MTP Act, hence, was directed to approach this Court.
Analysis, Law, and Decision
The issue for consideration before this Court was “whether a rape victim of 14 years, who was carrying the pregnancy of around 25 weeks, could be permitted to terminate the same?”.
The Court noted that Section 3 of the MTP Act provided that “termination of pregnancy of a woman where it exceeded 20 weeks but did not exceed 24 weeks could only be allowed in special categories, and where the medical practitioners were of the opinion that continuance of such pregnancy would either involve a risk to the life of the women or cause grave injury to her physical health or grave injury to her mental health”. Further, the Court noted that the categories under which pregnancy could be terminated where pregnancy was between 20 to 24 weeks had been prescribed by the Central Government under the Medical Termination of Pregnancy Rules, 2003 (MTP Rules).
The Court observed that “in the case of sexual assault, denying a woman the right to say no to medical termination of pregnancy and fasten her with responsibility of motherhood would amount to denying her human right to live with dignity as she had a right in relation to her body which included saying ‘Yes’ or ‘No’ to being a mother. Section 3(2) of the MTP Act reiterated that right of a woman. To force the victim to give birth to a child of a man who sexually assaulted would result in unexplainable miseries”.
The Court noted that “it was this mental agony which had been considered by the MTP Act which laid emphasis on not only grave physical injury but also mental health of a pregnant woman. It therefore provided under Section 3(2)(i) of the MTP Act that if the continuance of pregnancy would involve grave injury to the mental health of a pregnant woman, she could legitimately seek to terminate the same”. Therefore, the Court opined that the petitioner had a right to make reproductive choices and decisions which were concerned with her bodily integrity and autonomy. Reliance in this regard was placed on X v. Principal Secretary Health and Family Welfare Department, 2022 SCC OnLine SC 905 and Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 by this Court. The Court also relied on K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, wherein the Supreme Court observed that “the choice regarding procreation is an integral part of right to dignity enshrined under Article 21 of Indian Constitution”.
Therefore, the Court directed the petitioner to make herself available for medical termination of her pregnancy.
The Court further noted that “the fact that the petitioner was not able to get educated despite wanting to go to a school had made this Court note that the facilities extended by various Government Schemes was not even known to majority of people who might be the beneficiary of same”. Therefore, the Court directed the Secretary, DLSA, to make an outline of a programme for such workers in the city through its secretaries in all districts of Delhi at the construction sites so that such workers were informed about their right to education. The Court also directed the SHO concerned to ensure that after the medical termination and the period of rest, the petitioner was admitted to a Government school.
The Court passed the following guidelines that were to be followed by the IO, in cases where pregnancy exceeded 24 weeks:
At the time of medical examination of a victim of sexual assault, it would be mandatory to conduct a Urine Pregnancy Test, as in many cases, this Court had noticed that such test was not conducted.
Upon the victim being found pregnant due to sexual assault, and in case the victim was major gives her consent and expresses her desire for conducting medical termination of pregnancy, the concerned investigating officer would ensure that on the same day, the victim would be produced before the Medical Board envisaged under Section 3 of MTP Act.
In case a minor victim of sexual assault was carrying pregnancy, upon the consent of her legal guardian and desire of such legal guardian for termination of pregnancy, the victim would be produced before such Board.
In case a minor victim was examined by such Board, appropriate report would be placed before concerned authorities, so that if an order was being sought regarding termination of pregnancy from the Courts, the Court concerned did not lose any more time and was able to pass an order on the same expeditiously.
As per Section 3(2C) and 3(2D) of MTP Act, it was mandated that the State Government or the Union Territory must ensure that the Medical Boards were to be constituted in the hospitals. The Court was informed that such boards were not available in hospitals in each district, causing inconvenience to the IO as well as to the victim at times who must be taken for MTP and for further examination. Thus, State Government/Union Territory should ensure that such mandate of Section 3(2C) and 3(2D) of MTP Act, were complied with and such Boards were constituted in all Government Hospitals which had proper MTP Centres, and it should be mandatory to have such Boards constituted beforehand.
[Minor R THR Mother H v. State (NCT of Delhi), 2023 SCC OnLine Del 383, decided on 25-1-2023]
Advocates who appeared in this case:
For the Petitioner: Advocate Anwesh Madhukar
Advocate Prachi Nirwan
Advocate Yaseen Siddiqui
For the Respondents: ASC Sachin Mittal
Advocate Nishant Chauhan
Advocate Abhishek Tyagi
*Simranjeet Kaur, Editorial Assistant has reported this brief.