'If Foetus Is Given A Choice It Would Definitely Proclaim That It Doesn't Wish To Be Born': Madras HC Allows 15 Yr-Old Girl To Terminate Pregnancy

The Bench of Justice G. R. Swaminathan was hearing the petition filed by a woman who sought the termination of the pregnancy of her niece (J). J's father had died in the year 2012 and her mother is mentally unstable and so she is being looked after by her aunt and uncle.

The matter before the Court

Allegedly, one Sundar enticed J. and kidnapped her and established physical intimacy with J several times and since J had become pregnant, the petitioner approached the Court to direct the official respondents to terminate her pregnancy.

Considering the urgency of the matter, the Court ordered notice to the respondents, Assistant Surgeon, Virudhunagar Government Medical College and Hospital, and after examining the minor girl, they categorically opined that her gestational age is about 10-11 weeks and that continuing the pregnancy may endanger her physical and mental health.

The report cited the risks involved in continuing pregnancy and called upon this Court to permit termination of pregnancy on medical grounds.

It may be noted that as per Section 3 of the Medical Termination of Pregnancy Act, 1971, the pregnancy of the minor girl cannot be terminated without the consent in writing of her guardian.

"Liberation from the cycle of births and deaths"

Interestingly, at the outset, the Court quoted Tamil Sage-poet Thiruvalluvar who had said – "if anything is to be desired, it should be freedom from birth".

The Court also took into account the views expressed by Adi Shankara in "Bhaja Govindam", wherein he sang,

"Again, and again, one is born, and again and again one dies, and again and again one sleeps in the mother's womb, help me to cross, this limitless sea of life, which is uncrossable, my Lord".

In this backdrop, the Court opined,

"While we do celebrate life, the foremost spiritual prayer is that there should be liberation from the cycle of births and deaths."

"Court must put itself in the shoes of the unborn child"

Further, the Court observed that it must put itself in the shoes of the unborn child and objectively decide if coming into this world would be in its best interest.

The Court noted that the minor is aged 15 years and she is not in a position to maintain herself and remarked.

"An unborn child is also a person. In the case on hand, the father of the child has been shown to be involved in a host of criminal cases, some of which are very grave in nature…If a choice is given to the foetus now in the womb of the minor, it would definitely proclaim that it would not wish to be born."

Thus, taking note of the medical opinion and consent given by the minor, the Court directed the third respondent to terminate the pregnancy of minor J forthwith.

The Court also directed,

"Of course, the safety and health of the victim is paramount and Doctors will bear in mind. The samples of foetus shall be preserved for carrying out of medical tests for the purpose of the criminal case."

"That cannot be an end of the matter"

Observing that that cannot be an end of the matter, the Court called for the fast-tracking of the case.

The Court observed,

"I have come across a number of cases in which the accused come out on statutory bail because final report is deliberately not filed in time. The investigation officer will ensure that the final report is filed within the statutory period."

The Court also directed that after the fourth respondent files final report, the decision regarding taking cognizance will be taken by the Special Court within three days as mandated in the statutory rules and if cognizance is taken, the trial was directed to be disposed of on merits and in accordance with law within a period of three months thereafter.

Lastly, the Court observed,

"Though from a common perspective, one may comment that J eloped with Sundar, in the eye of law she is a child. She is a victim of circumstances. The Protection of Children from Sexual Offences Act, 2012 contains beneficial provisions for payment of compensation."

The investigation officer was thus directed to take out an application for payment of interim compensation before the Special Court and the Special Court was directed to pass appropriate orders so that a sum of Rs.5,000/-(Rupees Five Thousand only) is credited every month to the bank account of Thiru Veluchamy (the paternal uncle of the victim) for the purpose of maintaining J.

"Such a remittance will be made for 36 months. This Court will make arrangements for providing the necessary funds for disbursement by the Special Court", the Court further directed.

With these directions, the writ petition stood allowed.

[NOTE: The Madras High Court in the instant matter also quoted Live Law's report, wherein a decision of Kerala High Court [(W.P. (C) No.29209 of 2020)] was reported by us.]

Case title - Mahalakshmi v. The District Collector [W.P.(MD)No.659 of 2021]

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