"There Is A Right To Terminate Pregnancy On Ground Of Rape": Uttarakhand High Court Allows Termination Of 28 Weeks Foetus

"There is a right to terminate pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act (the Medical Termination of Pregnancy Act)."

Brief Facts:

The petitioner, aged about 16 years, is a rape victim. An FIR was lodged on 12.01.2022, at Revenue Police Station, Pokhari/Jilasu, District Chamoli under Section 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The medical examination of the petitioner was conducted. She was advised Obstetrical Ultrasound (Sonography) test, which confirmed that she had a Single Live Intrauterine Foetus of 27 weeks 4 days (+) 15 days.

According to the report of the Medical Board, the pregnancy was found 28 weeks 5 days. The said report concluded that considering the risk to the mother and foetal viability, it is not advisable to terminate pregnancy at this gestational age. The opinion of the members of the Medical Board was that there was a substantial risk to the life of the petitioner, if the medical termination of the pregnancy of the petitioner is conducted. They further submitted that at this stage of the pregnancy, the baby can take birth with many abnormalities.

Contentions:

The counsel appearing for the petitioner vehemently contended in favour of obtaining permission for the termination of pregnancy. She submitted that the Apex Court in A. v. Union of India, (2018) 14 SCC 75, had permitted termination in a case where the gestational age was 25-26 weeks, and in Sarmishtha Chakrabortty and Another v. Union of India, (2018) 13 SCC 339, the Supreme Court permitted termination of the pregnancy when the gestational age was 26 weeks.

In Murugan Nayakkar v. Union of India, 2007 SCC OnLine SC 1092, the Hon'ble Supreme Court has allowed medical termination of pregnancy beyond the statutory outer limit prescribed in the Act considering the fact that the victim was 13 years old and in trauma, even after the Board stated that termination will have equal danger for the mother.

Again, it was submitted that during the procedure of the termination, if it is found that there is any risk to the life of the petitioner, then discretion can be applied to cancel the procedure for medical termination of pregnancy. The Additional Chief Standing Counsel for the State did not oppose the said submissions of the counsel for the petitioner.

Decision of the Court:

The Court observed that right to life means something more than survival or animal existence. It would include the right to live with human dignity. The father of the minor petitioner has expressed that the petitioner is not in a position to continue the pregnancy and if the petitioner is not permitted to terminate her pregnancy, there is possible grave injury to her physical and mental health.

In Suchita Srivastav & Anr. vs. Chandigarh Administration, (2009) 9 SCC 1 and in Meera Santosh Pal vs. Union of India, (2017) 3 SCC 462, the Supreme Court held that a woman's right to make reproductive choices is also a dimension of "personal liberty" as understood under Article 21 of the Constitution of India. Further, in Meera Santosh Pal (supra), the Court permitted the petitioner to terminate pregnancy and observed that the overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it.

Further, the Court mentioned that under Explanation 2 to Section 3(2) of the MTP Act, there is a presumption. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Having regard for all the aforesaid points of law and fact, the Court concluded:

"In these circumstances, if the petitioner is compelled to continue with her pregnancy, it would infringe her right to live with human dignity, guaranteed under Article 21 of the Constitution of India. Therefore, in the present facts and circumstances, this Court considers it appropriate in the interest of justice to permit the petitioner to undergo medical termination of her pregnancy…"

However, the Court directed that the medical termination of pregnancy of the petitioner should be carried out by a senior most Gynaecologist under the guidance of the Medical Board within 48 hours from the production of a copy of this order before the Chief Medical Officer, Chamoli. Further, during the procedure of medical termination, if they find any risk to the life of the petitioner, they will have discretion to cancel the said procedure.

Case Title: Ms. X (minor) through her father v. State of Uttarakhand & Ors.

Case No.: Writ Petition No. 201 of 2022 (M/S)

Date of Judgment: 4^th February 2022

Coram: Justice Alok Kumar Verma

Citation: 2022 LiveLaw (Utt) 5