Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case seeking grant of medical termination of pregnancy by a 16-year-old rape victim (‘petitioner’), Yashwant Varma J., granted termination of 28+ weeks foetus, after going through a report prepared by the Medical Board constituted by AIIMS, which recommended the same. The Court, however, directed the foetus to be preserved by AIIMS for DNA testing for the purpose of criminal case pending against the perpetrator.

The petitioner, a 16-year-old victim of rape approached the Court for the medical termination of her pregnancy. The foetus is stated to be beyond 28 weeks old. The report by the Medical Board constituted by AIIMS, recommended medical termination of her pregnancy.

As the petitioner has crossed the 24 week of pregnancy threshold as laid down under the provisions of the Medical Termination of Pregnancy Act, 1971, termination would be impermissible. Thus, the petitioner filed the instant petition.

The Court relied on X v. Government of NCT of Delhi in WP (C) No. 10638 of 2022 decided on 19-07-2022 wherein it was held that if the petitioner was forced to go through with the pregnancy despite the same having been caused on account of the incident of sexual assault, it would permanently scar her psyche and cause grave and irreparable injury to her mental health. The Court cannot visualize a more egregious invasion of her right to life as guaranteed by Article 21 of the Constitution.

The Court thus directed the petitioner to appear before Medical Board along with her brother as well as a responsible official to be deputed by the Child Welfare Committee [CWC] and undertake the requisite procedure for the medical termination of the pregnancy of the petitioner.

The Court further directed AIIMS to preserve the terminal foetus for DNA testing which would be required for the purposes of the criminal case which is pending.

[R v. Government of NCT of Delhi, 2022 SCC OnLine Del 2628, decided on 26-08-2022]


Advocates who appeared in this case :

For petitioner- Ms. Hetu Arora Sethi, Mr. Rahul Jain, Ms. Kavita Nailwal and Mr. Arjun Basra, Advocates

For Respondent- Mr. Mehak Nakra, ASC(C), GNCTD for R-1.

Mr. Satya Ranjan Swain and Mr. Tanveer Oberoi, Advs. for AIIMS and Inspector Dinesh Kumar, P.S. New Friends Colony


*Arunima Bose, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

Madras High Court: Abdul Quddhose, J. permitted the termination of pregnancy of 27+ week of a minor child victim of offence under Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) on the recommendations of well qualified doctors, as the victim was observed to not be so mentally strong to be able to withstand the pregnancy and later take care of the child even financially.

The instant case has been filed by the desperate father of a victim girl seeking medical termination of his minor daughter’s pregnancy. The rape victim girl X was impregnated by the accused who has been charged with the offence under sections 5(j)(ii) r/w 6 of POCSO Act.

A team of doctors were nominated vide order dated 14-07-2022 who medically examined the rape victim girl and submitted a feasibility report stating that that the victim girl X is about 28 weeks + 3 days pregnant.

Dr. S. Amutha, DDVL, Joint Director (MTP), Directorate of Family Welfare, Chennai and Dr.Vijaya Murali, Deputy Director (Inspection), Directorate of Family Welfare in open Court and they expressed that it is feasible to terminate the pregnancy of the petitioner’s daughter. The rape victim is mentally weak and not in a position to deliver a child at such a young age.

Dr. Arumai Kannu, HOD of Obstetrics and Gynecologist, Government Thiruvannamalai Medical College Hospital reiterated that it is feasible to terminate the pregnancy of the victim girl even though the gestational period is 28 weeks + 3 days.

Placing reliance on Murugan Nayakkar v. Union of India, 2017 SCC Online SC 1092, it was noted that the Supreme Court allowed termination of pregnancy in the case of 13-year-old child and in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339, termination of pregnancy was permitted even when the gestational age was 26 weeks, in view of the recommendations of the medical board.

The Court observed that while exercising powers under Article 226, this Court has got wider powers than what is prescribed under section 3(2) of the Medical Termination of Pregnancy Act, 1971, which permits the registered medical practitioner to terminate the pregnancy only when the length of pregnancy does not exceed a maximum period of twenty weeks. In the case on hand, the victim girl is 28 weeks + 3 days pregnant. However, considering the fact that the medical report recommends termination of her pregnancy and after giving due consideration to the fact that the victim girl is small statured and is only 13 years old, this Court exercising powers under Article 226 of the Constitution of India has got the powers to take judicial notice of those facts and can permit termination of victim’s pregnancy.

It was also observed that the petitioner is an agricultural laborer and surviving on hand to mouth existence. If the minor victim girl is allowed to deliver a child, not only the victim, but also her parents will suffer. The petitioner has also stated that he came to know about her minor daughter’s pregnancy only after coming to know that she did not get her menses for a long time.

The Court directed respondent 1 “to nominate Team of specialised Doctors on 18-07-2022 who shall terminate the pregnancy of the petitioner’s minor daughter on the very same date. However, after terminating the victim’s pregnancy, the first respondent shall preserve the foetus for carrying out the medical test for the purpose of criminal case pending against the accused for the offence under section 5(j)(ii) r/w 6 of POCSO Act.”

The Court further directed the Child Welfare Committee, Thiruvanamalai District to render all possible assistance both to the victim girl and her parents during the period of their stay in the Hospital.

[K Vijayakumar v. State of Tamil Nadu, 2022 SCC OnLine Mad 3724, decided on 15-07-2022]


Advocates who appeared in this case :

P Sevli, Advocate, for the Petitioner;

B Vijay, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While explaining whether a pregnant woman can seek termination of pregnancy beyond 24 weeks, Jyoti Singh, J. (Vacation Judge) found the mental health of the petitioner to be an essential factor for allowing termination of pregnancy.

Petitioner was 33 years old and had been undergoing regular checkups from the 5th week of her pregnancy. From the ultrasonography report conducted during the 20th week of gestation, it was revealed that there was choroid plexus cyst in the left lateral ventricle of the foetus. However, since the foetus was only 20 weeks old, foetal echocardiography was not performed. On completion of 24 weeks, foetal Echo-Doppler test was done, and various anomalies were found in the heart of the foetus.

After taking opinions from various doctors, it was found that the survival of the infant would be 50% in the very first year of their birth and even if they do survive the first year, repeated surgeries would have to be carried out and success of the surgeries would depend upon the stimuli of the baby to the environment.

Further, since the permissible limit of 24 weeks under the Medical Termination of Pregnancy (Amendment) Act, 2021 was over, the petitioner approached this Court seeking direction from the respondents to allow her to undergo medical termination of pregnancy.

Court had directed respondent 3/AIIMS to constitute a Medical Board to examine the petitioner, who had on the said date completed 28 weeks of pregnancy, to furnish its report regarding the necessity and feasibility of medical termination of the pregnancy.

The gist of the medical board’s opinion was also that the foetus had substantial abnormalities.

Analysis, Law and Decision

High Court observed that the petitioner in the present matter had completed 28 weeks of pregnancy, which was beyond the maximum period of 24 weeks, permissible under the MTP Act and therefore, on account of the proscription in Section 3 of the MTP Act, the petitioner had approached the Court, seeking directions to the respondents to allow the petitioner to undergo medical termination of the pregnancy.

The only focal point of the matter was that the petitioner sought pregnancy on account of the fact that the foetus was suffering from a severe cardiac anomaly.

As per Section 3(2)(b)(i) of MTP Act, grave injury to ‘mental health’ of a pregnant woman is a legal ground available to the woman to seek medical termination of pregnancy, with the caveat that the maximum period permissible under the Act, for termination, is 24 weeks.

Petitioner’s counsel took the Court to various decisions wherein cases of substantial foetal abnormalities and/or where the said abnormalities had a consequent impact on the mental health of the pregnant woman, Supreme Court and High Courts, both have permitted medical termination of pregnancy, beyond the statutory cap of 24 weeks.

While referring to a catena of decisions in view of the present matter, Court lastly referred to a judgment of Bombay High Court in XYZ v. State of Maharashtra, 2021 SCC OnLine Bom, 3353, wherein dealing with an identical issue, the Court allowed the petitioner to undergo medical termination of her pregnancy, finding that continuation of pregnancy could cause grave injury to her mental health.

Court noted the medical board’s opinion that the entire life of the child, if born, would largely depend on the clinical condition and quality of medical care provided to the child.

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Hence, High Court held that the mental frame of the petitioner, a mother, taking a tough call to terminate pregnancy, was understandable.

The Bench also added that the above-said circumstances would cause grave injury to the mental health of the petitioner.

Therefore, the petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. [Pratibha Gaur v. GNCTD, 2021 SCC OnLine Del 5573, decided on 31-12-2021]


Advocates before the Court:

For the Petitioner:

Ms. Sneha Mukherjee and

Ms. Surabhi Shukla, Advocates.

For the Respondents:

Ms. Hetu Arora Sethi, Additional Standing Counsel with Mr. Siddarth Aggarwal, Advocate for R-1 & 2.

Mr. Tanveer Oberoi, Advocate for R3.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: Expressing that, A woman has the right to make choice to carry pregnancy, at the same time, it’s her right not to carry the pregnancy, subject to conditions and restrictions enumerated under the Medical Termination of Pregnancy Act, B. Vijaysen Reddy, J., permitted termination of pregnancy of a 16-year-old girl though the gestation period crossed 24 weeks.

Instant petition was filed by a 16-year-old girl through her natural guardian seeking direction to respondent 4 to terminate her pregnancy medically, as per the provisions of the Medical Termination of Pregnancy Act, 1971 and as amended in 2021.

Factual Background

It was stated that the 16-year-old girl was sexually exploited by one of her extended family members further she was also threatened and emotionally abused with dire consequences.

Due to not keeping good health, she was taken for a medical checkup to respondent 4/hospital and as directed by the said hospital on approaching another hospital she was diagnosed with foetus of 25 weeks.

On enquiry by the parents, petitioner stated that she was threatened with dire consequences and the accused threatened to kill her mother. FIR was registered for the offences under Sections 376 (2) and 506 of Penal Code, 1860 and Sections 6 read with 5 of the Protection of Children from Sexual Offences Act, 2012.

Medical Opinion

It was submitted that there was a threat to the physical and mental health of the petitioner, aged 16 years, as the formation of foetus is not a choice but purely circumstantial, as the pregnancy is the result of sexual assault and rape. The petitioner at her tender age is not in a position to bear the child physically, mentally and financially. Considering the situation of the petitioner, who is in dire need of protection and dependency, she is not in a stage to bear or nourish the foetus.

Law

The upper limit for medical termination of pregnancy prior to the 2021 amendments was 20 weeks, which has been extended to 24 weeks.

Court had directed the Medical Board to submit a report after examining the petitioner.

Analysis and Decision

As per the Medical Board, the gestational age of foetus was 26 to 27 weeks and expected date of delivery was 6-1-2022.

Further, the Medical Board certified that the petitioner was fit for termination of pregnancy, however, it was stated that there may be medical complications like bleeding and petitioner may be subjected to surgical procedure, which required anesthesia.

However, it was noted that under Explanation 2 to Section 3(2) of the Act of 2021, there was a presumption that anguish caused to the rape victim by pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Court stated that,

Though there is restriction under the statute for terminating pregnancy, if the gestation of foetus is more than 24 weeks, it is settled law that the Constitutional Courts are empowered to direct termination of pregnancy.

Adding to the above, Bench observed that if the petitioner is compelled to continue with pregnancy caused by rape, it would infringe her right to life guaranteed under Article 21 of the Constitution of India.

If the petitioner is not permitted to terminate the pregnancy, there is every possibility of the petitioner undergoing severe physical and mental stress, which may have adverse effect on her future health and prospects.

 In Court’s opinion, the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the petitioner.

Right of Woman to make Choice of Pregnancy and Terminate pregnancy

 Dignity, self-respect, healthy living etc., are facets of right to life and personal liberty enshrined under Article 21 of the Constitution of India, which also include right of a woman to make a choice of pregnancy and terminate pregnancy, in case, where pregnancy is caused by rape or sexual abuse or for that matter unplanned pregnancy, subject to reasonable restrictions under law.

 Therefore, in view of the above petition was allowed. [xxxx v. Union of India, 2021 SCC OnLine TS 1345, decided on 5-10-2021]


Advocates before the Court:

Petitioner Advocate: Katta Sravya

Respondent Advocate: Namavarapu Rajeshwar Raoassgi

Case BriefsHigh Courts

Bombay High Court: The Bench of V.M. Deshpande, J. dismissed an appeal challenging the judgment and order of Additional Sessions Judge whereby the appellant was convicted for offences punishable under Sections 376 and 506 IPC along with Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.

Appellant was accused of committing the offence of rape and sexual assault on a mentally-retarded minor girl victim after which she became pregnant. After the victim’s pregnancy came to light, she had to undergo an abortion and subsequently a case was filed against the appellant. For the said offence he was tried and convicted by the Additional Sessions Judge and sentenced to suffer imprisonment. Aggrieved thereby, appellant challenged the said judgment in the present appeal on various grounds.

One of the grounds contended by R.M. Patwardhan, Advocate for the appellant was that the DNA report should not be accepted as there was no reason for the medical officer who conducted abortion of the victim’s pregnancy to preserve the aborted foetus for DNA testing in absence of registration of offence against anybody.

Rejecting appellant’s contention as meaningless, the High Court noted Dr Kanchan Gadhe’s presence of mind and commitment towards her duty and opined that preservation of foetus was not unnatural as she knew that abortion was conducted on the minor unmarried girl. Furthermore, relying on Mukesh v. State (NCT of Delhi), 2017 (6) SCC 1, the Court observed, “the DNA report or scientific method to determine the paternity or sexual assault is firmly established. The only challenge for it can be set up that there occurred tampering with the blood sample of the accused at any stage.” Since there was no such challenge in the present case, the DNA report was accepted. Not finding any infirmity in the impugned order, the court dismissed the appeal. [Shaktiman v. State of Maharashtra, 2019 SCC OnLine Bom 139, dated 29-01-2019]

High Courts

Rajasthan High Court: Deeply concerned with the increasing crime of female feticide in the State of Rajasthan, a division bench of Sunil Ambwani CJ and Prakash Gupta J, issued an interim order while hearing a public interest litigation (PIL) initiated by Shri S.K. Gupta for prevention of female foeticide in the State.

Shri S.K. Gupta (petitioner in person) suggested various measures and prayed for steps to be taken by the State Government against the crime as well as for implementation of laws to discourage female foeticide and declining of sex ratio of girl child in the State. The Counsel for the respondent G.S. Gill, contended that the State Government is seriously concerned with the implementation of laws and other measures to improve the child sex ratio.

The Court observed that the concern shown by the State Government and efforts made by it for better implementation of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 by developing software and launching various schemes for encouraging the development of girl child and discouraging female feticide is not adequate, as hardly any conviction has been secured. The Court noted that the PCPNDT Act does not appear to have deterred the medical profession sufficiently to avoid ultrasound sonography test to determine sex of the foetus, and that the earlier directions issued by the court in this regard have not resulted into any desired impact on the reduction of female feticide in the State.

Accordingly, considering the slow pace of implementation of PCPNDT Act, the Court issued the following directions:

  • Seizure and confiscation of the ultrasound sonography machine of the unregistered PCPNDT clinic (which shall not be released until the conclusion of the proceedings under the PCPNDT Act OR payment of penalty equal to five times of the registration fee and on full satisfaction by the Appropriate Authority, with the undertaking of compliance of the PCPNDT Act and Rules).
  • The Registered Medical Practitioners shall sign the sonography reports of the sonography test carried out by them, and the sign should not be the Digital Signature.
  • Seizure of every sonography machine (whether static or portable), sold by the manufacturer without being reported to the State Appropriate Authority.
  • Installation of GPS system by every manufacturer at the time of sale of machine to trace the location of the ultrasound sonography machine, and prohibition on sale of sonography machines without GPS system after three months.
  • Establishment of sufficient number of control rooms and appointment of nodal officer for continuous monitoring of control room servers and active tracking of sonography machines.
  • Establishment of special PCPNDT Courts in the Districts of Rajasthan, where the situation of female feticide is worse, as evidenced by the fall in the girl child sex ratio in these Districts.
  • Freedom given to the members of society to report these crimes to the State Appropriate Authority and the District Appropriate Authority, for which they will be rewarded, if the complaints are found genuine.
  • State Government to increase and expand the scope of the existing schemes and to initiate more schemes, for public awareness for protection of girl child.
  • State Government to make education of the girl child in the State completely free; to increase the percentage of reservation for women in public employment from 30% to 50%; and to provide measures to limit the expenditure in weddings at all levels.
  • Expeditious disposal of appeals and trials.

 The Court also directed the respondents to submit the compliance and progress report on the directions issued by this Court on 11.05.2015. S.K. Gupta v. Union of India, decided on 15.04.2015