Allahabad High Court: In a writ petition filed by a minor through her mother praying for issuance of directions to the respondents to conduct medical termination of her pregnancy under Medical Termination of Pregnancy Act, 1971, (‘MTP Act’) the division bench of Mahesh Chandra Tripathi and Prashant Kumar, JJ. has requested the Vice Chancellor, Aligarh Muslim University to direct the Principal, Jawaharlal Nehru Medical College, Aligarh to constitute a five members team headed by Department of Obstetrician and Gynecologist; Department of Anesthesia and Department of Radio Diagnosis to examine the minor and submit a report before the Court.
The minor is a 12-year-old minor girl, who was raped and sexually assaulted by her neighbour but due to her disability to speak and listen, she could not narrate her ordeal to anyone. For the first time, the mother came to know that her daughter has been sexually assaulted by her neighbour. When she asked the minor about the incidence, she communicated in sign language that she had been raped on multiple occasions. Consequently, the mother lodged an FIR against the accused for offences under Sections 376, 354-C of the Penal Code, 1860 (‘IPC’) and Sections 3, 4, 7, 8 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), on 15-06-2023. Thereafter, the medical examination of the minor was conducted on 16-06-2023, wherein it was found that the minor is carrying a pregnancy of 23 weeks.
The Medical Board vide its report dated 30-06-2023 opined that as per the ultrasound report of the minor dated, she was carrying the pregnancy of 25 weeks and two days but since she was suffering from severe anemia and the period of pregnancy has already gone beyond 24 weeks, which is stipulated in Medical Termination of Pregnancy (amendment) Rules, 2021, accordingly the Medical Board had opined that in order to terminate the pregnancy, there would be requirement of permission from the Court.
Issue:
Whether this Court, using its extraordinary powers under Article 226, should allow the termination of pregnancy of minor victim at the stage of around 25 weeks of pregnancy?
Analysis:
The Court noted that Section 3 of MTP Act provides that termination of pregnancy of a woman where it exceeds 20 weeks but does not exceed 24 weeks can only be allowed in special categories, and where the medical practitioners are 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. The categories under which pregnancy can be terminated where pregnancy is between 20 to 24 weeks have been prescribed by the Central Government under the Medical Termination of Pregnancy Rules 2003 wherein seven categories have been provided.
The Court said that amongst these seven categories, clause (a) relates to victims of sexual assault, rape or incest and clause (b) relates to minors. In the present case, the victim falls under both the clauses as she is a minor aged around 12 years, who is alleged to have been raped. Therefore, the victim would fall under the special categories. Further, the Explanation 2 to the aforesaid provision explicitly provides that where pregnancy is alleged to have been caused by an act of rape, the anguish caused by such a pregnancy shall be presumed to constitute grave injury to the mental health of pregnant woman as required under Section 3(2)(i) of MTP Act. Therefore, the Court said that in case of a minor victim, who is alleged to be sexually assaulted or raped and because of which she has conceived, the injury that is caused to her mental health is presumed even statutorily.
The Court said that though the statute does not provide for termination of pregnancies over the gestational age of 24 weeks except in case of detection of substantial foetal abnormalities. However, using the extraordinary powers of the Constitutional Courts, the High Courts have several times allowed termination of pregnancies even in cases where pregnancy has exceeded the limit of 24 weeks.
The Court said that in the case of sexual assault, denying a woman 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 has a right in relation to her body which includes saying Yes or No to being a mother. To force the victim to give birth to child of a man who sexually assaulted her, would result in unexplainable miseries.
[X v. State of UP, 2023 SCC OnLine All 396, order dated 10-07-2023]
Advocates who appeared in this case :
Counsel for Petitioner: Advocate Raghav Arora;
Counsel for Respondent: Chief Standing Counsel.
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