Allowing termination of 25- 26 week pregnancy of a minor girl, the Telangana High Court held that dignity, self-respect (mental and physical), etc. are facets of the right to life and personal liberty enshrined under Article 21 of the Constitution of India, which also include the right of a woman to make a choice of pregnancy and terminate the pregnancy, in cases where pregnancy is caused by rape or sexual abuse or for that matter unplanned pregnancy, subject to reasonable restrictions under the law. The decision should entirely be in the hands of the pregnant woman.
The instant writ petition was filed by a minor aged 16 years through her mother seeking direction seeking direction to the respondent to terminate her pregnancy medically, as per the provisions of the Medical Termination of Pregnancy Act, 1971 (the Act of 1971) and as amended in 2021. It was stated that the 16-year-old girl was sexually exploited by one of her extended family members who also threatened her with dire consequences in case of disclosure of the factum of exploitation. Owing to bad 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 a foetus of 25 weeks.
On enquiry by the parents, the 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 (POCSO ACT). It was submitted that there was a threat to the physical and mental health of the petitioner, aged 16 years, as the formation of the 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.
After the 2021 amendments, the period allowed for termination was extended to 24 weeks. The Court directed the Medical Board to submit a report after examining the petitioner. As per the Medical Board, the gestational age of the foetus was 26 to 27 weeks. 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 the petitioner may be subjected to surgical procedure, which required anaesthesia
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.
It must be noted here that the counsel for the petitioner submitted before the Court that a woman’s right to make a reproductive choice is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity, and bodily integrity should be respected. A woman has self-rule over her body. The right to life and individual freedom under Article 21 of the Constitution of India envelops the option to settle on regenerative decisions. It is inhuman to subject a woman, who is over 24 weeks pregnant, to legal deferrals. Infringement of the right to life of a rape victim outweighs the right to life of the child in the womb.
Reasoning and Decision of the Court
The Court took into consideration the opinion of the medical board and observed that the circumstances which lead to the petitioner’s pregnancy on account of unfortunate events of sexual abuse without any shadow of a doubt would cause mental and physical stress and anguish to the petitioner. Though there is a restriction under the statute for terminating the pregnancy, if the gestation of the foetus is more than 24 weeks, it is settled law that the Constitutional Courts are empowered to direct termination of pregnancy. 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.
A woman has the right to make a choice to carry the pregnancy, at the same time, it is her right not to carry the pregnancy, however, subject to conditions and restrictions enumerated under the provisions of the Act of 2021. 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 effects on her future health and prospects.
So also it needs to be noted, the petitioner is 16 years old, and with the mental stress she is undergoing, it cannot be said with certainty that the petitioner would be able to carry the pregnancy until the child and that too a healthy child is delivered. There may be medical complications encountered by the petitioner and also to the foetus or to be born child. The parents of the petitioner have expressed, through their counsel, that the petitioner is not in a position to continue the pregnancy and there is a threat to the life of the petitioner on account of physical and mental stress she is undergoing on a day-to-day basis.
Allowing termination of pregnancy, the High Court opined that the life of the foetus or to be born child cannot be placed at a higher pedestal than that of the life of the Petitioner (or the mother herself).
Case name: XXX (minor) V Union of India
Date of Decision: October 5, 2021
Bench: Honorable SRI JUSTICE B. VIJAYSEN REDDY