In Her Best Interest: Gauhati High Court Permits Termination Of 26-Week Pregnancy Of Minor Girl Who Was Allegedly Gangraped

The Gauhati High Court on Monday (December 9) permitted a minor girl who was allegedly gang raped, to terminate her 26-week pregnancy, after noting that it would be in the girl's best interest. 

A division bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund passed the order while hearing a Suo Moto writ petition registered on the basis of a news article published in the Times of India dated November 29, wherein it came to the court's notice that a  minor girl stated to be gang-raped by seven people including four minors in a district. As per the newspaper report, the girl was 23 weeks pregnant at that time.

The bench in its order said:

“In this case, the unwanted pregnancy is now at 26 weeks and the degree of risk which is involved in every procedure for medical termination of pregnancy, at this stage or at the stage of delivery at full term of pregnancy, would be same. Therefore, the Court is of the considered opinion that this Court would not be powerless under Article 226 of the Constitution of India for ordering the medical termination of pregnancy...In view of the nature of urgency, considering the tender age of the victim 'X' and the length of pregnancy, the Court is of the considered opinion that this is a fit case for ordering MTP i.e. Medical Termination of Pregnancy of an unwanted foetus which would be in best interest of the victim 'X' in view of her minority.”

In its December 5 order the Court had directed that the Medical Board, the District Level Committee and the the Chairman, Child Welfare Committee of the district to have the girl examined by the Medical Board. The court had called for a report if it would be appropriate to have the "unwanted pregnancy" terminated with special emphasis on the "risk" involved in such a procedure.

During the hearing on Monday, the court took note of the report and said that the medical board had opined that the girl is "reportedly fit to undergo any obstetrical procedure". However, since under the Medical Termination of Pregnancy Act the termination of pregnancy of 24 weeks (+) is not allowed, no opinion was expressed on the termination of unwanted pregnancy.

The court noted that clinical examination revealed that the pregnancy was of 26 weeks 1 day as on December 7 with a possibility of variation of (+/-) 14 days. The Amicus Curiae submitted that there are certain degree of risk involved in every procedure for medical termination and he has further pointed out that the estimation of the duration of pregnancy is 26 weeks. It was further submitted that although the girl is stated to be fit to undergo any obstetrical procedure, if the Court allows such procedure to be adopted, the medical team should be so constituted that experts in the field should be requested to do the procedure.

The high court then said, “The Court is conscious of the fact that the victim girl is a minor aged about 15 years now and she is presently carrying an unwanted pregnancy of more than 26 weeks. The Court is also conscious of the fact that at this stage, there is a threat of life to the victim 'X', if termination of pregnancy is carried out at this stage. However, comparing the present situation with the risk that the victim may undergo at the time of delivery at full term of pregnancy, the risk factor appears to be same at the present stage as well as the risk that would be involved at the time of delivery at full term of pregnancy". 

The Court observed that the pregnancy is allegedly as a result of alleged gang rape of the girl by seven people including four minors. It also noted that the girl was not even able to say "when she had her last menstrual period" and that it is a fact that she did not menstruate for last 6 months and therefore, as per the opinion of the Medical Board, the victim is suffering an unwanted pregnancy for more than 26 weeks.

The Court thereafter referred to the Supreme Court's decision in A (mother of X) v. State of Maharashtra where the apex court had permitted the termination of pregnancy of a minor girl, after taking note of the circumstances, the risk situation which the girl was facing with a 24 week pregnancy and the risk which is involved at the time of delivery of the full term of pregnancy.

The court further directed:

1. The Medical Board (MTP related) along with the Child Welfare Committee of the district are requested to immediately constitute a team of expert Medical Practitioners in the field for undertaking the medical termination of pregnancy of the minor 'X' in respect of whom the report of Medical Board dated December 07, 2024 has been forwarded to this Court.
2. Medical Board will also examine the facilities available in the Government/ Civil Hospital or any other Private Hospital or Public Nursing Home in the district for undertaking the said procedure.
3. In the event the Medical Board does not find the facilities in the district to be adequate, the State would make arrangements for the transportation of the minor victim 'X' to the nearest Dibrugarh Medical College and Hospital as well as for her return home after the completion of the procedure.
4. The State would bear all the expenses in connection with the procedure and all medical expenses required in the interest of the safety and welfare of the minor victim 'X'. The State shall also provide and extend all facilities for further medical care, post termination, if any, required. This is ordered to ensure the best interest of the minor victim X.
5. The district authorities shall also take the help of a counsellor for the minor so as to assist the minor in the mental preparation to undergo the procedure as well as post counselling, if so required.

The matter is again listed on December 19 for production of status report.

Case Title: In Re-X v. The State of Assam and 3 Ors.

Case No.: WP(C)(Suo Moto)/1/2024

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