Bombay High court allows minor rape victim to terminate pregnancy [READ ORDER]

As per the committee report dated May 10.2021, Bombay high court permitted the petitioner (a minor girl) to undergo, medical termination of pregnancy, at KEM Hospital, Mumbai as it may lead to pregnancy-related complications like anemia, pregnancy-induced hypertension as well as increased operative interference during labor; also going to have a psychological impact on a pregnant minor with uncertain future.

The matter was heard by the Division of Bombay high court comprising Justice K.K. Tated and Abhay Ahuja, JJ.

A petition was filed by a minor girl through her father Mr. Jitendra Kumar Singh seeking permission to undergo medical termination of pregnancy at KEM Hospital, in her 24th week of pregnancy.

The petition states that the victim was raped by her nearby resident. As a result of a sexual offense, she became pregnant. The FIR was lodged on 24th April 2021 under section 376 of the I.P.C. and sections 4, 8 & 12 of the Protection of Children from sexual offense act 2012.

Since the pregnancy had exceeded the statutory period of 20 weeks prescribed under the Medical Termination of Pregnancy Act, 1971 (the “MTP Act”), Petitioner is seeking permission from the court to terminate her pregnancy.

Taking note of the situation, the court decided to form a board committee to examine the matter.

Committee report 

As per committee views continuation of pregnancy of minor girl have both mental and physical impact on her health. she may have various health issues such as anemia, hypertension well as increased operative interference during labor, also going to have a psychological impact on a pregnant minor with uncertain future.

In the backdrop of this, the board also stated that since it is a very unusual and unfortunate case, therefore it is important to consider some aspects of this case.

 Under Section 3(2)(b) of the MTP Act, the maximum time of pregnancy is recommended as twenty weeks. The conditions under which the pregnancy can be terminated are also set out under this Section. One such condition, as referenced in Section 3(2)(b)(i) is that the termination of pregnancy is permitted if the continuation of the pregnancy implied danger to the life of the pregnant lady or grave injury to her physical or emotional well-being. 

Explanation 1 to this sub-section gives that when the pregnancy was caused by rape, it was presumed to constitute a grave injury to the mental health of the pregnant lady. 

In the present case, this specific situation is visible and there is no doubt that the continuance of this pregnancy is making a grave injury to the mental health of the candidate. Aside from this, of course, thinking of her at the young age of 16 years, there is an inalienable danger to her life. The only problem in the present case is that the legal time of 20 weeks is finished. petitioner has gone into the 23rd seven-day stretch of her pregnancy and, hence, the MTP Act doesn't allow clinical termination of pregnancy in such cases.

However, Sub-Section (1) of Section 5 of the MTP Act carves out an exception, which reads thus:

“5. Sections 3 and 4 when not to apply. – (1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relating to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”

Committee also took the support of case XYZ Vs Union of India and Ors and Jay Sandeep Gore vs the State of Maharashtra where it was held that a registered medical practitioner may medically terminate   pregnancy which has exceeded 20 weeks, without permission from the High Court, only where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

Committee also stated that parents of the minor girl were aware of the consequences of the continuation of pregnancy as well as the termination of pregnancy.

Court analysis

After taking note of the report of the committee court issued the following orders:

• Allowed petitioner to undergo termination of pregnancy.
• The Dean of the KEM Hospital, Mumbai will ensure that the procedure is performed at a place that satisfies all the prerequisites of the MTP Rules 2003 and the procedure should be conducted by the Medical Practitioner who satisfies the conditions set down under those standards.
• The blood sample and tissue sample of the fetus shall be preserved to carry out necessary medical tests including DNA and other tests.
• In case, if the child is born alive and if the petitioner and her parents are not willing or are not in a position to take responsibility for such a child then the State and its agencies will have to assume full responsibility for such child.

Case name:” X” vs state of Maharashtra 

Counsel for petitioner - Ms. Ruchita Padwal i/b Ms. Aditi Saxena.

Counsel for state- Ms. P.H. Kantharia, GP, 

[Read Order]