'Grave Danger To Physical & Mental Health': Madras High Court Allows Termination Of 13 Yrs Old Rape Victim's 28 Weeks Pregnancy

Justice Abdul Quddhose observed that even though the pregnancy had crossed the legal period of 20 weeks, it had to be noted that she was a small statured girl and was not mentally or physically strong to withstand the pregnancy. Apart from this, the court also noted that the girl's father, the Petitioner herein, was an agricultural labourer and if the pregnancy was allowed to continue, not only the victim girl but the whole family would suffer.

This Court is also taking judicial notice of the fact that the petitioner is an agricultural labourer and surviving on hand to mouth existence. He admittedly belongs to the below poverty line category. If the minor victim girl is allowed to deliver a child, not only the victim, but also her parents will suffer.

The court also noted precedents where the Supreme Court had allowed termination of pregnancies even when the Gestation period had crossed 20 weeks. In A vs. Union of India (2018) 4 SCC 75, the Supreme Court had permitted termination in a case where the gestational age was 25-26 weeks. In Murugan Nayakkar vs. Union of India 2017 SCC Online SC 1092, the court had allowed termination of pregnancy in the case of 13 year old child. Similarly in the case of Meera Santosh Pal vs. Union of India 2017 3 SCC 462 permission for medical termination of pregnancy was granted when the pregnancy crossed 24 weeks, based on the medical  reports pointing out the risk involved in the continuation of pregnancy. Relying on these precedents, the court observed as under:

From the aforementioned decisions, it is clear that even in cases where the length of pregnancy has exceeded 20 weeks, this Court is having power to order for termination of pregnancy of the victim girl on the ground of grave danger to her physical and mental health.

In the present case, the court heard Joint Director (MTP) and Deputy Director (Inspection), Directorate of Family Welfare, who submitted before the court that it was feasible to terminate the girl's pregnancy. They also submitted that the rape victim is mentally weak and not in a position to deliver a child at such a young age. The same was also confirmed by the HOD of Obstetrics and Gynaecologist, Government Thiruvannamalai Medical College Hospital.

The court also noted that it had wider power under Article 226 of the Constitution than what is prescribed under section 3(2) of the Medical Termination of Pregnancy Act, 1971 which permits the registered medical practitioner to terminate the pregnancy only when the length of pregnancy does not exceed a maximum period of twenty weeks.

Exercising this judicial power, the court directed the state to nominate a team of specialised doctors who shall terminate the pregnancy. The court also directed the respondent-state to preserve the foetus after termination for carrying out the medical test for the purpose of criminal case pending against the accused under IPC and the POCSO Act. The Child Welfare Committee was also directed to give all possible assistance to the victim girl and her parents during the period of their stay at the hospital.

Case Title: K Vijayakumar v. State

Case No: W.P.No.18043 of 2022

Citation: 2022 LiveLaw (Mad) 309

Counsel for the Petitioner: Ms.P.Sevli

Counsel for the Respondent: Mr.B.Vijay, AGP