Bombay High Court Refuses Mentally Challenged Rape Victim To Terminate 35-Week Pregnancy Citing Health Risk

A division bench of Justices Gangapurwala and AS Doctor said that the court would be guided by the report of the Expert Committee, but since the pregnancy was a result of rape, certain directions were necessary:

1. The investigator should remain present at the time of delivery so that DNA samples can be collected soon after the delivery and be used during the trial.
2. If the child is born alive, the State should take care of the child in accordance with guideline under a 2019 landmark judgement on Medical Termination of Pregnancy.

The petitioner approached the court on July 26, 2022 under section 3(2)(b) of the MTP and the bench took up the matter for hearing the very next day.

Advocate Yogesh Birajdar, for the petitioner submitted that she was a rape victim and owing to her medical condition the family learned of the pregnancy at a much later stage. The offender is booked under section 376, 504 and 506 of the Indian Penal Code at the Indapur Police Station, he said.

The court then directed the expert committee at Sasoon General Hospital, Pune to examine the victim and submit a report on August 29.

Once the victim was examined the committee submitted a report through AGP MP Thakur. After a psychiatric evaluation they opined that the woman has moderate intellectual disability.

According to her physical evaluation, termination of pregnancy at this advanced gestational age may be considered high risk to maternal health including need of operative interventions.

"The foetus is very much salvageable due to absence of gross foetal anomalies as per sonography…On clinical and sonographic examination of mother, due to advanced gestational age, medical termination of pregnancy is not recommended with kind permission of Hon'ble High Court," the committee opined.

"This Court would be guided by the report of the Expert Committee," Court said.

The court then added that the guardian of the petitioner shall intimate the Investigating Officer regarding the place of delivery and the officer shall remain present so that necessary steps can be undertaken for the purpose of DNA text, tissue culture and other tests required to facilitate the trial.

The bench said it would consider further aspects of the compensation after hearing the AGP on August 17, 2022.

The observations from the 2019 judgement that would apply to the present case are as follows-

(h) In an MTP case if the child is born alive, the registered medical practitioner and the hospital/clinic concerned will have to assume full responsibility to ensure that such child is offered best medical treatment available in the circumstances, in order that it develops into a healthy child;

(i) We further hold that where, this Court, in exercise of its powers under Article 226 of the Constitution of India has permitted medical termination of pregnancy and the child is born alive, if the parents of such child are not willing to or are not in a position to assume the responsibility for such child, then, the State and its agencies will have to assume full responsibility for such child and offer such child medical support and facilities, as may be reasonably feasible, adhering always to the principle of best interests of such child as well as the Statutory provisions in the Juvenile Justice Act.

Citation : 2022 LiveLaw (Bom) 278

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