"Conscious Decision" Of Minor To Terminate Pregnancy: MP High Court Overturns Single Judge Order Denying Permission Over 'Suspicious' Rape FIR
Madhya Pradesh High Court has recently allowed a writ appeal filed by the grandmother of a minor rape victim whose pregnancy duration had reached 28 weeks.
The Division Bench of Acting Chief Justice Sanjeev Sachdeva and Justice Vinay Saraf said that though the pregnancy was over 28 weeks, the same was a result of an alleged offence of rape. The court then referred to X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, 2022 LiveLaw (SC) 809 to emphasise the right to reproductive autonomy of a woman.
The High Court also considered the latest medical opinion and concluded that there are risk factors in taking the minor's pregnancy to the term as well as terminating it.
“…conscious decision has been taken by the guardian of the minor as also the minor girl to proceed further with the termination of pregnancy…. guardian of the minor is an aged woman of 60 years who is solely taking care of the minor and states that she would be unable to take care of the minor and the baby”, the court reasoned while allowing scientific abortion of the foetus.
The court found it necessary to expunge the observation of the single bench that the FIR was 'suspicious' due to inconsistencies between the date of the alleged offence and the current age of the foetus:
“Insofar as the observation of the learned Single Judge with regard to the lodging of the FIR being suspicious is concerned, we find that there is no material to substantiate that observation…”
In the FIR lodged on 07.07.2024, the minor's guardian stated that the prosecutrix conceived about three months ago, i.e., approximately between 07.04.2024 and 01.05.2024. As per her statement, she came to know about the pregnancy only when she noticed abnormal developments in the minor's body.
The court also underscored that the pregnant minor's opinion/consent regarding the continuation of pregnancy is crucial in such cases. Earlier, the prayer for termination of pregnancy was declined due to the foetus being over 28 weeks, and due to the mild intellectual disability of the prosecutrix.
However, the Division Bench noted that the independent opinion of the girl to undergo the procedure is pertinent in the medical termination of pregnancy. As a result, the court directed that a lady judicial officer, along with the gynaecologist, should visit the hospitalised minor and seek her opinion after explaining the complications of continuing her pregnancy to the full term or terminating it now.
“…we direct the Principal District Judge, Bhopal to nominate a lady judicial officer to visit the girl in the hospital and obtain her independent informed decision with regard to termination of pregnancy”, the Division Bench had noted in its writ appeal order on 24.07.2024 after referring to A (Mother of X) v. State of Maharashtra & Anr., 2024 LiveLaw (SC) 349.
In A (Mother of X), the apex court held that the opinion of the pregnant person must be given primacy in evaluating the foreseeable environment of the person under Section 3(3) of the MTP Act. In this case, the Supreme Court had initially permitted the pregnancy termination of a minor who was in the 30th week of gestation. Subsequently, the parents and the minor decided to complete the term of pregnancy.
Accordingly, JMFC Bhopal visited the minor girl in the hospital on the night of 24.07.2024.
“…the Judicial Magistrate has noticed that though the mental age of the girl was 6.5 years, however, she was of mature understanding and able to understand her surrounding and respond to the questions”, the court noted after referring to the report.
The Magistrate, in her report, also recorded that both parents of the victim were present at the time of the visit, and the victim expressed her inclination not to continue with the pregnancy since none of them was in a position to take care of the newborn child.
Along with the stipulation that the procedure should be carried out by an expert team of doctors when they deem it fit, the court has also asked to preserve a sample of the foetus for DNA Exam and trial.
Case Title: A Minor Through Her Grandmother v. State of Madhya Pradesh & Ors.
Case No: WA No. 1661 of 2024
Citation: 2024 Live Law (MP) 154