Gujarat High Court: While hearing a special criminal application filed by the minor rape victim’s father to terminate her pregnancy of 24 weeks, Sanjeev J Thaker, J. held that since the victim and her guardian are desirous of termination of pregnancy and continuation would result in adverse mental and physical effects, the victim is permitted to undergo medical termination of her pregnancy.
Background:
The petitioner lodged a complaint when his minor daughter, aged 16, went missing. It was discovered during the pendency of the investigation that the minor girl had run away with the accused who had developed physical relations with her under the false pretext of marriage despite knowing that she is a minor. Neither the victim nor her parents were aware of the fact that the victim was pregnant until she was examined on 14.10.2024 wherein it was found that she was pregnant at 21 weeks and 6 days.
The petitioner approached the Gujrat High Court under Art. 226 praying for permission for termination of daughter’spregnancy of 24 weeks which had resulted from the aforementioned rape under the provisions of the Medical Termination of Pregnancy Act, 1971 (‘MTP Act’).
On 30.10.2024, when the matter came up before a co-ordinate bench of this Court, the Court directed a medical examination of the victim girl. The medical reports stated that although it is more advisable to continue the pregnancy at this stage due to the risks associated with termination, continuation of the same will be harmful to the mental and physical well-being of the victim, hence, the medical termination can be done with due risks associated with such termination at 24 weeks and 5 days. The petitioner and the victim consented to terminate the pregnancy despite being informed about the risks associated with it.
Analysis:
The Court referred to Explanation 2 for clauses (a) and (b) of s. 3(2) of the MTP Act which states that in a case “where the pregnancy is alleged to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.” Upon perusal of the medical reports, the affidavit of the petitioner which states that he has been made aware of the risk of potential complications associated with the termination of pregnancy and that consent of the victim has also been taken, as well as the guidelines for termination of pregnancy and scheme of MTP Act, the Court noted that if the minor victim does not want to continue with the pregnancy then this Court cannot compel her to do so.
The Court relied upon the case of A (Mother of X) v. State of Maharashtra (2024) 6 SCC 327 wherein the Supreme Court had granted permission for the termination of pregnancy to the minor girl whose pregnancy was of 29.6 weeks. The Court also placed reliance on another decision of the Supreme Court, titled XYZ v. State of Gujarat 2023 SCC Online SC 1573, wherein it was held that “the right to dignity entails recognizing the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy” and opined that the victim has right to choice whether to give birth to a child or to get her pregnancy terminated and her opinion has to be given primacy.
Conclusion:
Considering the facts of the case, the Court held that the victim would suffer grave injury to her mental and physical health as well as suffer from social stigma if she were forced to continue with the pregnancy at such a tender age. The Court further noted that it is conscious that although the pregnancy is of 24 weeks and 05 days, the risk associated with the termination of pregnancy is not higher than the risk of delivery at full term of pregnancy.
The Court also noted that the present case on hand falls within the purview of MTP Act and found that the right of bodily integrity calls for permission to allow her termination of pregnancy.
On overall consideration, the Court held that since the victim and her guardian are desirous of termination of pregnancy, the victim girl is permitted to undergo medical termination of her pregnancy at GG Hospital, Jamnagar subject to certain conditions. Accordingly, the Court directed the Superintendent of GG Hospital, Jamnagar to arrange for the same by the next day. The Court also provided a list of non-exhaustive directions to be followed by the registered medical practitioner/ medical board, which are as follows:
The registered medical practitioner/ medical board:
(i) must not restrict its opinion to the criteria under Section 3(2-b) but must also evaluate the physical and emotional well-being of the pregnant person;
(ii) must, in their report, give opinion on whether carrying of the pregnancy to the full term would impact upon the physical and mental well-being of the victim/minor/pregnant woman; and
(iii) should also opine on whether termination of pregnancy can be carried out at this stage without any threat to the pregnant person.
[XYZ v. State of Gujarat, 2024 SCC OnLine Guj 4042, order dated 08-11-2024]
Advocates who appeared in this case:
For the Applicant: Mr Yogesh K Manghani and Prerak P Oza
For the Respondent: Mr Ronak Raval, APP
