8 Jun 2023 11:41 AM GMT
While dealing with a plea seeking termination of over 7-month-old fetus of a minor rape survivor (aged 16 years 11 months old), the Gujarat High Court orally observed as to how it was normal in the past for 14-15-year-old girls to get married and deliver a child before they turn 17. As the Counsel for the father of the rape survivor pressed for medical termination of the fetus in view...
While dealing with a plea seeking termination of over 7-month-old fetus of a minor rape survivor (aged 16 years 11 months old), the Gujarat High Court orally observed as to how it was normal in the past for 14-15-year-old girls to get married and deliver a child before they turn 17.
As the Counsel for the father of the rape survivor pressed for medical termination of the fetus in view of the tender age of the girl, the Bench of Justice Samir J. Dave remarked thus:
“Because we are living in the 21st century, ask your mother or great-grandmother, 14-15 was the maximum age (for getting married). The child used to take birth before the age of 17. Girls get matured before boys. 4-5 months here and there doesn’t make a difference. You will not read it, but do read Manusmruti once for this.”
In response to this, counsel for the Minor's father/Petitioner, said that under the Muslim Law, the age is 13 years.
However, the Court did add that he consulted doctors in his chamber as to whether the pregnancy could be terminated in this case as the fetus is over 7 months of age.
Further, considering the facts and circumstances of the case, the Medical Superintendent, of Civil Hospital, Rajkot was directed to conduct a medical examination of the minor girl through the Panel of Doctors of the Civil Hospital on an urgent basis.
The Court further directed the Panel of Doctors to carry out the Ossification Test of the rape survivor and also get her examined by the Psychiatrist of the Civil Hospital to ascertain her mental condition.
“After conducting the above tests, Reports thereof shall be prepared and submitted to this Court on the next date of hearing. In view of the peculiar facts of the case, the Medical Superintendent, Civil Hospital, Rajkot is directed to submit a medical opinion of the Panel of Doctors as to whether (i) it is advisable to perform the procedure of Medical Termination of Pregnancy over the applicant herein and (ii) the medical condition of the foetus, if, ultimately, the Court orders Medical Termination of Pregnancy of the applicant herein,” the Court directed as it posted the matter for hearing on June 15.
During the course of the hearing, when the Counsel appearing for the father of the minor girl, Sikander Saiyed, requested an early hearing as the expected delivery date was August 16, the Court made it clear that it may not permit abortion if the fetus and the rape survivor are in good condition.
“If any serious ailment is there in the mother or the fetus, the Court can certainly consider, if both are normal, it would be very difficult for the court to pass an order (for termination), take it from me,” the Court said.
Further, if so ordered, the bench also expressed concerns about the possibility of the child being born alive during the termination. Lastly, the Court also suggested the lawyer to start looking for adoption options.
It may be noted that as per the amended Section 3 of the Medical Termination of Pregnancy Act, the upper ceiling for abortions is 24 weeks for special categories of pregnant women such as rape or incest survivors, with the prior approval of two registered doctors. In such cases, the doctors have to be of the opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or that there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
However, the Constitutional Courts, on account of the fact that they are vested with wider powers, can permit termination of pregnancy beyond 24 weeks inappropriate and deserving cases. Generally, this is done after a medical board of specialist doctors gives its opinion that the fetus is suffering from any disability and that it would be safe to abort the fetus.
Case title - XXX vs. State of Gujarat
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