Allahabad High Court grants permission for the medical termination of pregnant to 12 years old


The Allahabad High Court while granting permission for the medical termination of pregnancy of a 12-year-old girl who became pregnant as a result of rape has said that in the case of sexual assault, denying a women right to say no to medical termination of pregnancy and fasten her with responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother.

The Division Bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar passed this order while hearing a petition filed by Victim through mother.

The petitioner, a minor, has approached the Court through her mother under Article 226 of Constitution of India, praying for issuance of directions by virtue of writ of mandamus to the respondents to conduct medical termination of her pregnancy under Medical Termination of Pregnancy Act, 1971, as amended in 2021.

The facts of the case is that the petitioner is a 12 years' minor girl, who was subjected to rape and sexually assaulted multiple times by her neighbour but due to her disability to speak and listen, she could not narrate her ordeal to anyone. As per the educational certificate of the petitioner, her date of birth is 17.04.2011 and she is about 12 years old. The petitioner was born with a disability of deafness and dumbness and as such, she cannot speak or listen. As per her disability certificate, she is 84% disabled and already living a miserable life.

The mother of the petitioner is a poor lady, who is a labourer and after the demise of her father, the mother of the petitioner is in serious financial distress and barely able to fulfill her basic needs. For the first time, the mother of the petitioner came to know on 15.06.2023 that her daughter had been sexually assaulted by her neighbour. When she asked the petitioner about the incidence, the petitioner communicated in sign language that she had been raped on multiple occasions.

Consequently, the mother of the petitioner had lodged an FIR against the accused person and the same was registered as Case under Sections 376, 354C IPC and Sections 3, 4, 7, 8 of POCSO Act, Police Station Khurja Nagar, District Bulandshahar on 15.06.2023. Thereafter, the medical examination of the petitioner was conducted on 16.06.2023, wherein it was found that the petitioner is carrying a pregnancy of 23 weeks.

In this backdrop, the mother of the petitioner moved a representation on 26.06.2023 before the concerned authority with a request for termination of pregnancy. The said representation was forwarded to the Chief Medical Officer, District Bulandshahr, who in turn constituted a Medical Board on 27.06.2023 to determine as to whether the pregnancy of the petitioner could be terminated or not.

The Medical Board vide its report dated 30.06.2023 opined that as per the ultrasound report of the petitioner dated 28.06.2023 the petitioner was carrying the pregnancy of 25 weeks and two days but since the petitioner was suffering from severe anemia and the period of pregnancy has already gone beyond 24 weeks, which is stipulated in Medical Termination of Pregnancy Rules, 2021, accordingly the Medical Board had opined that in order to terminate the pregnancy of the petitioner, there would be requirement of permission from the Court.

Counsel for the petitioner submitted that the petitioner is a 12 years' old deaf and dumb girl. The mother of the petitioner had also made a request to the Court that considering the miserable situation and age and medical condition of her daughter, they do not wish to continue with the pregnancy of the petitioner. However, the Medical Board opined on 30.06.2023 that the petitioner was carrying the pregnancy of more than 25 weeks and as such, she was beyond the permissible gestational age limit under the MTP Act, 1971. Hence, the petitioner was advised to approach the Court and seek judicial intervention.

The issue before the Court is, whether under the facts and circumstances a rape victim of 12 years, who is deaf and dumb and carrying the pregnancy of more than 24 weeks, can be permitted to terminate the same.

The Court noted that, Section 3 of MTP Act provides that termination of pregnancy of a woman where it exceeds 20 weeks but does not exceed 24 weeks can only be allowed in special categories, and where the medical practitioners are of the opinion that continuance of such pregnancy would either involve a risk to the life of the women or cause grave injury to her physical health or grave injury to her mental health. The categories, under which pregnancy can be terminated where pregnancy is between 20 to 24 weeks, has been prescribed by the Central Government under the Medical Termination of Pregnancy, Rules 2003 [as amended by Medical Termination of Pregnancy (Amendment) Rules, 2021].

The Court observed that,

A perusal of the aforesaid Rule reveals that clause (a) relates to victims of sexual assault, rape or incest and clause (b) relates to minors.

In the case, the victim falls under both, i.e clause (a) and (b) as she is a minor aged around 12 years, who is alleged to have been raped. Therefore, the victim would fall under the special categories as enumerated by the Central Government under the rules notified as per the mandate of section 3(2)(b) of MTP Act.

Furthermore, Explanation 2 to the aforesaid provision explicitly provides that where pregnancy is alleged to have been caused by an act of rape, the anguish caused by such a pregnancy shall be presumed to constitute grave injury to the mental health of pregnant woman as required under Section 3(2)(i) of MTP Act. Therefore, it is not in dispute that in case of a minor victim, who is alleged to be sexually assaulted or raped and as a consequence of which she has conceived, the injury that is caused to her mental health is presumed even statutorily.

Counsel for the petitioner further submitted that the pregnancy is more than gestational age of 25 weeks, which requires proper facilities. There are proper medical facilities at JawaharLal Medical College, Aligarh, which is affiliated to Aligarh Muslim University, wherein, her pregnancy may be terminated under the able guidance of medical experts.

The Court further observed that,

Though the statute does not provide for termination of pregnancies over the gestational age of 24 weeks except in case of detection of substantial foetal abnormalities, the provision in regard to which is Section 3(2B) of MTP Act, the extraordinary powers of the Constitutional Courts, however, have been recognized even by the Supreme Court of India and exercised several times by the High Courts to allow termination of pregnancies even in cases where pregnancy has exceeded the limit of 24 weeks.

In the case of sexual assault, denying a women right to say no to medical termination of pregnancy and fasten her with responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother. Section 3(2) of the MTP Act reiterates that right of a woman. To force the victim to give birth to the child of a man who sexually assaulted would result in unexplainable miseries.

Considering the urgency in the matter and taking humanitarian view as the petitioner is a 12 years rape victim, the Court requested the Vice Chancellor, Aligarh Muslim University to direct the Principal, Jawahar Lal Medical College, Aligarh to constitute a FiveMembers Team headed by Department of Obs & Gynae; Department of Anaesthesia and Department of Radio Diagnosis to examine the petitioner tomorrow i.e 11.07.2023 and submit a report before the Court in sealed cover on 12.07.2023 through Shashank Shekhar Singh, counsel for the Aligarh Muslim University.

The Court directed the District Magistrate of Bulandshahar to ensure the petitioner’s presence before the Medical Board for examination.