Bombay High Court Allows Termination Of 23-Week Pregnancy For 16 Year Old Sexual Assault Survivor

A Vacation Bench of Justices KK Tated and Abhay Ahuja allowed the petition moved by the father of the child.

The Bench remarks in its Order,

"…there is no doubt that continuance of this pregnancy is causing a grave injury to the mental health of the petitioner. Apart from this, of course, considering her tender age of 16 years, there is an inherent risk to her life."

The girl, a survivor of sexual assault allegedly committed by an accused living nearby, was found to be pregnant after her mother took her to a clinic on noting a change in the appearance of her abdomen.

The pregnancy was confirmed upon a medico-legal examination at a hospital subsequently.

Counsel for petitioner submitted that the mental trauma that the survivor was undergoing because of the pregnancy caused due to the offence of rape was causing serious injury to her mental health. Besides this, there was inherent risk to her life because of pregnancy at such a tender age, she additionally urged.

The Medical Board constituted found that the minor and the foetus were well, but that neither her parents nor she wished to continue with the pregnancy. "The minor (16 years old) is anguished with the pregnancy", the Board's Report noted.

The Report recommended termination of pregnancy, as continuing with it , would have both physical and mental stress upon the minor mother. The Board Report, noted that the termination carried substantial risk to the pregnant minor, since it was done at 23 weeks of gestation. It was also submitted in Court that the contents of the Report were conveyed to the minor and her parents.

The Court referred a decision of a Division Bench of the Bombay High Court that had considered Sections 3, 4, and 5 of the Medical Termination of Pregnancy Act and how medical terminations of pregnancy could be permitted even after the statutory period of 20 weeks was past. The Division Bench had ruled that where the continuance of pregnancy poses grave injury to the physical or mental health of the mother, there would arise a serious affront to the fundamental right of such mother to privacy, to exercise reproductive choices, to bodily integrity and to her dignity. This was especially so if the pregnant mother is forced to continue with her pregnancy merely because the pregnancy had extended beyond the ceiling of 20 weeks.

Apart from the decision cited, the Court referred to Explanation 1 to Section 3 which specifies that if the pregnancy is caused on account of a rape committed on the woman, it shall be presumed that the anguish caused by the pregnancy would constitute a grave injury to the mental health of the pregnant woman. The words used in explanation is "shall be presumed".

In this light, the Court came to the conclusion that anguish by grave injury was "clearly existing" and there was no doubt that continuance of the pregnancy was causing a grave injury to the mental health of the petitioner. "Apart from this, of course, considering her tender age of 16 years, there is an inherent risk to her life", the Court said.

Ordering the termination to be done, the Court additionally directed that the foetus' tissue be collected for DNA identification and for the future purposes of the criminal investigation ongoing.

In the event the child was born alive, the State was to take full responsibility for him/her if the parents of the minor were unwilling or unable to care for the child.

The Medical Practitioner concerned was to ensure necessary medical facilities were made available to save the life of the child, in case the child was born alive.

On these terms the petition was allowed.

CASE: X v. State of Maharashtra

COUNSEL: Advocate Ruchita Padwal informed by Advocate Aditi Saxena for Petitioner. Government Pleader P.H. Kantharia, for Respondent/State.