Telangana High Court Allows 12-Yr-Old Rape Victim To Abort Pregnancy Which Was Beyond Legally Permissible Limit Of 24-Weeks

In a landmark decision, the Telangana High Court permitted a 12-year-old rape victim to terminate her 26-week pregnancy. This ruling came in response to a writ petition filed by the mother of the victim, against the Superintendent of Gandhi Hospital, Hyderabad, who had initially refused to perform the medical termination of pregnancy.

“…there cannot be any doubt that the victim girl would be subjected to mental trauma if she is forced to continue pregnancy against her wish; the mother of the victim girl is stated to be a domestic worker. If the victim girl is not allowed to terminate her pregnancy, she has to continue pregnancy until the child is delivered and may have to face not only physical and mental health issues but also social stigma. It has been recognized by the various Courts including the Hon'ble Supreme Court, as discussed above, that right to choice of a pregnant woman to continue pregnancy or terminate it is one of the facets of fundamental rights guaranteed under Article 21 of the Constitution of India.” Justice B. Vijaysen Reddy held.

The case unfolded when the petitioner, a single mother working as a domestic worker, noticed her daughter had missed her menstrual periods for over five months. A medical examination at CC Shroff Hospital revealed the minor's pregnancy. Upon inquiry, it was discovered that the victim had been repeatedly sexually assaulted by one Vijay Kumar and four of his friends. A criminal case) was subsequently registered under relevant sections of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Initially, when the victim was taken to Gandhi Hospital on June 26, 2024, doctors refused to terminate the pregnancy, citing that it was beyond the 24-week limit prescribed by the Medical Termination of Pregnancy (Amendment) Act, 2021. This refusal prompted the mother to approach the High Court.

The court, recognizing the urgency and sensitivity of the matter, directed the hospital to constitute a Medical Board to examine the victim and provide a report on the feasibility of terminating the pregnancy. The Medical Board's report, submitted on July 5, 2024, stated that while the procedure could be carried out, it came with certain risks including cervical trauma, uterine perforation, hemorrhage, and infection.

In its deliberations, the court considered several crucial factors. The primary argument advanced by the petitioner's counsel was based on the recent Supreme Court judgment in A (Mother of X) v. State of Maharashtra (2024). This judgment emphasized that the consent of the victim is paramount in matters of reproductive choice and abortion. The counsel argued that forcing the victim to continue the pregnancy would cause severe mental anguish and potential physical harm.

The court also took into account the provisions of the Medical Termination of Pregnancy Act, 2021 particularly Explanation 2 of Section 3(2), which recognizes the mental trauma that can be caused by continuing a pregnancy resulting from rape. The Court reasoned that given the victim's young age of 12 years, continuing the pregnancy would not only pose physical and mental health risks but also subject her to social stigma.

In reaching its conclusion, the court balanced several factors: the victim's age, the circumstances of the pregnancy, the potential risks of the procedure as outlined by the Medical Board, and the fundamental rights of the victim. The court also considered the broader implications of forcing a minor rape victim to carry a pregnancy to term.

“If the victim girl or her mother gives consent for termination of pregnancy through medical procedure, respondent No.4 - the Superintendent, Gandhi Hospital, Hyderabad, shall forthwith admit the victim girl, conduct medical examination and by taking all necessary precautions, terminate pregnancy of victim girl medically or through surgical procedure as may be required, within 48 hours," the court said.

Thus, the petition was disposed of with specific directives for the hospital to perform the procedure within 48 hours of obtaining consent, ensuring it is carried out by the senior-most Gynecologist, preservation of fetal samples for DNA testing, recognizing their importance in the ongoing criminal investigation.

Lastly, the Court directed the Legal Services Authority, High Court for the State of Telangana to render the victim any assistance if she applies for compensation and ensure adequate compensation.

Case number: WRIT PETITION No.17358 OF 2024

Case title: Chakali Bhagyamma vs. State Of Telangana

Counsel for petitioner: Vasudha Nagaraj

Counsel for respondents: GP FOR MEDICAL HEALTH & FW

Citation: 2024 LiveLaw (Tel) 114

Click Here To Read/Download Order