Bombay High Court: The Division Judge Bench of Nitin W. Sambre and Sachin S. Deshmukh, JJ., considered a writ petition wherein the 12-year-old petitioner prayed to be allowed to terminate her 28 to 29 weeks pregnancy. Her cousin uncle was accused of raping her. The Court, after considering the opinion of the Medical Board, and noting that there was no life threat to the petitioner, permitted her to undergo medical termination of pregnancy (‘MTP’) by taking recourse to the safety protocol.
Background:
The petitioner aged 12 years and 5 months old was allegedly raped by her cousin uncle and the offence was registered under Sections 64(2)(f), 64(2)(m), 65(2) and 351(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The report was lodged late because of the accused’s relation with the victim.
The Court caused notice and directed the victim to appear before the Medical Board considering the nature of the relief sought. The Medical Board gave its opinion which read:
“Key recommendations of the panel (if any) with justification – The process of termination of pregnancy is high risk by considering her age and fetal gestational age. Hysterotomy can be done with High-Risk consent of parents and assent of patient.”
It was submitted by the counsel for the petitioner that despite the opinion given by the Medical Board, the parents of the petitioner and the petitioner herself was willing to undergo the MTP, even if such process was at high risk.
However, the respondents urged that considering the expert opinion, it would not be justifiable to permit the MTP, as there was high risk having regard to the victim’s age and fetal gestational age.
Analysis:
The Court took note that it was not the opinion of the Medical Board that the life of the victim was at risk in case the process of MTP was carried out and pointed out that the Board consisted of not only the Professor of Obstetrics and Gynaecology but also the Professors of Medicine and Paediatrics.
The Court relied to the judgment of the Supreme Court in X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, (2023) 9 SCC 433, wherein it was held that Article 21 of the Constitution recognised and protected the right of a woman to undergo termination of pregnancy if her mental or physical health was at stake. It was the woman alone who had the right over her body and was the ultimate decision-maker on the question of whether she wants to undergo an abortion. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. Further, the Court also relied on XYZ v. State of Gujarat, 2023 SCC Online SC 1573 and A (Mother of X) v. State of Maharashtra, (2024) 6 SCC 327, and inferred that the Court could not have forced the victim to carry her pregnancy against her wish as in such an eventuality, the State would be stripping her of the right to determine the immediate and long term path of her life.
The Court also highlighted that it would have to be sensitive to the fact that a woman could become pregnant by choice irrespective of her marital status. However, in case of unwanted or incidental pregnancy the burden invariably fell on the pregnant woman/victim.
After all these deliberations, the Court permitted the petitioner to undergo MTP at the earliest by taking recourse to the safety protocol. It also directed that the instructions from the parents of the victim that they were willing to furnish an undertaking of high-risk consent and the assent of the patient, be also made part of the medical record.
[XYZ v. Union of India, Writ Petition No. 3027 of 2025, decided on 17-6-2025]
Advocates who appeared in this case :
For the Plaintiffs: Soniya Gajbhiye, Advocate appointed through Legal Aid.
For the Respondents: S.A.Chaudhari, Advocate for Respondent 1;
D.V.Chauhan, Senior Advocate and Government Pleader a/b H.D.Marathe, Assistant Government Pleader for Respondents/State.
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