Continuing Pregnancy Of Woman Unable To Manage Herself Will Be Problematic In Future Life: MP High Court Grants Relief To Disabled Rape Survivor

Madhya Pradesh High Court has permitted the termination of a 17-year-old rape survivor's pregnancy at 29 weeks, subject to certain conditions, considering the peculiar circumstances involved.

The Division Bench of Former Chief Justice Ravi Malimath and Justice Vishal Mishra held that the pregnancy of the physically disabled survivor in this particular case can be terminated provided that it is carried out by a team of expert doctors, after explaining to the minor and her family the risk factors of the procedure.

“…Permitting for carrying out the pregnancy of a woman who is not in a position to manage herself will be creating great problems to her in future life. Even the other family aspects are also required to be considered”, the bench sitting at Jabalpur reasoned before imposing certain conditions for termination of pregnancy.

Additionally, all medical facilities like post-operative care and the presence of a radiologist and a paediatrician should be made available to the survivor, the court instructed. The Division Bench also noted that the duty of care will rest on the shoulders of the state if the child is born alive. To aid the prosecution in the criminal trial, a DNA sample of the foetus should be preserved, the court added.

After a single judge bench of the High Court agreed with the Medical Board's Report disapproving termination of pregnancy on 06.05.2024, the survivor and her family took the recourse of writ appeal. The gestation period was over 28 weeks as of 01.05.2024, much beyond the statutorily permissible period of 24 weeks.

FIR was registered and the criminal prosecution has commenced for the offence of sexual assault and rape committed upon the survivor by the accused. According to the petitioner, her mother came to know about the pregnancy much later when physical changes started to become noticeable. The application for termination of pregnancy was rejected by two hospitals owing to the bar mentioned in the amended Medical Termination of Pregnancy Act, 1971.

In the writ appeal before the division bench, after conducting a medical examination as stipulated by the court, a fresh report was submitted by the Medical Board on 08.05.2024 to assist the court when it probes the possibility of terminating the minor's pregnancy. The Board had opined that the procedure wouldn't be permissible under the statute unless express permission is granted by the High Court. If the court acceded to the termination procedure, then it can be carried out after the survivor is informed about all 'anticipated and unanticipated complications' probable at this stage, the board had mentioned in the Report.

“…For terminating pregnancies exceeding 24 weeks, it is observed that termination can be performed with all the explained risk of the anticipated and unanticipated complications in relation to termination of Rh negative teenage pregnancy (high risk), provided risk of termination is same at this gestation and full term pregnancy”, the court clarified in the order.

Since the report did not say that termination of pregnancy would be impossible at this stage, court held that the procedure can be carried out subject to the explanation of risks involved to the concerned parties. While making the above observations, the court also extensively relied upon previous judgments where pregnancies beyond 24 weeks were allowed to be terminated, namely in X v. Principal Secretary, Health and Family Welfare Department, 2022 LiveLaw (SC) 809 and XYZ v. State of Gujarat & Ors., 2023 LiveLaw (SC) 680. These apex court judgments have unanimously held that all women are entitled to safe and legal abortion.

In X v. Principal Secretary, Health and Family Welfare Department, the apex court had made the following observations after construing Rule 3(B) of the amended MTP Rules, 2003 and the probable changes in a women's material circumstances:

“…the decision to give birth to and raise a child is necessarily informed by one's material circumstances. By this, we mean the situational, social, and financial circumstances of a woman or her family may be relevant to her decision to carry the pregnancy to term…”, the apex court had noted then in reference to Rule 3(B)c.

Before parting with the order, the High Court asked the concerned team of medical practitioners to terminate the pregnancy at the earliest since the survivor expressed her readiness to undergo the procedure that day itself.

Advocates Hritvik Dixit and Priyanka Tiwari appeared for the survivor-appellant. Additional Advocate General Harpreet Singh Ruprah represented the respondents.

Case Name: Victim X v. The Superintendent Of Police Department, Bhopal & Ors.

Case No: Writ Appeal No. 1078 of 2024

Citation: 2024 LiveLaw (MP) 118

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