While ordering the examination for medical termination of a minor rape victim’s pregnancy, the high court of Calcutta held that only 25+ weeks of pregnancy was there as opposed to the statutory 24 weeks and it is not that late to save the life of the victim, and the court also noted that it cannot shut its eyes in such a way that the tender life goes to waste.
Brief Facts:
The writ petition has been filed by the father of an unfortunate minor girl who is 11 years old, studying in class V. The minor child is a victim of a gang rape and as of today, she is about 25 weeks and 6 days pregnant. The father of the minor on behalf of the minor is seeking medical termination of the unwanted pregnancy.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner has cited sections 3 and 5 of the Medical Termination of Pregnancy Act, 1971 as well as connected rules of 2003 and accordingly, it has been contended that although under section 3(2)(b) outer length of pregnancy which can be medically terminated is 24 weeks, the act has to be taken as a whole. To explain this further the petitioner contended that the non-applicability has been extended to the termination of a pregnancy in a case where the registered medical practitioner is of the opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. The petitioner also referred to three judgments of the coordinate benches of this court and one judgment of a three-judge bench of the supreme court.
Observations of the Court:
The Court first analyzed the judgments referred by the petitioner. For the first coordinate judgment, it was noted that there was no question of law as in the present case and therefore no law was laid down there. Then in the next case, it was noted that there the provisions of the statute were interpreted and it was held that the urgency of medical intervention by way of termination of pregnancy was sufficiently impressed upon the court. The court then differentiated both the previous cases from the current case on the ground that in both of them, the pregnancy was within the outer limit of 24 weeks. Then with regards to the third coordinate bench case, the victim was raped at the age of 17 and was 30+ weeks pregnant at the time of filing the writ petition. In that case, the girl was a rape victim as required under Rule 3B(a) that the medical board had also given the consensus that the pregnancy could be terminated and hence, in that case even though the pregnancy was 30+ weeks, the court allowed the termination of pregnancy under Rule 3B(a). the court in the current case was of the view that inspiration can be taken from this case since the facts and situation were similar.
Then the court also looked into the background of the enactment of the statute. It was noted that initially, abortion was a crime under the IPC, except when it was done to save the life of the mother and in recent years the healthcare and medical technology have improved which has led to the amendment of 2021 in section 3(2)(b) was modified in order to extend the length of the permitted pregnancy for termination, but this section does not exceed 24 weeks. Then the court looked at section 5(1) of the MTP Act, which mentions that the restriction of the length of the pregnancy would not apply when as per the doctor the termination is immediately necessary.
The court then noted how the petitioner was from an extremely weak financial background and had barely attained puberty and then how motherhood was being imposed on her, because of what had happened she had gone through a lot of physical and mental trauma. Apart from the mental trauma that childbirth will bring to the victim, the court also noted that the child if given to the victim would have extremely poor chances of a healthy upbringing or even a normal birth. Accordingly, the court concluded that continuance of the pregnancy would involve a risk to the pregnant girl’s life.
Further, the court also held that in the present case, section 5(1) is fully applicable and the childbirth if permitted would leave a permanent stigma on the petitioner’s life. The court also said that the writ court, as a court of equity, cannot shut its eyes so tight that a tender life goes to waste and that Only 25+ weeks, as opposed to the statutory 24 weeks, of pregnancy, have elapsed which is not yet too late.
The decision of the Court:
Respondents No. 7 and 8 were directed to constitute a medical board within section 3(2D) of the MTP Act and they were then directed to hold the necessary examination within 48 hours for ascertaining the pros and cons of medical termination of the victim’s pregnancy.
Case Title: Sri X Vs. The State of West Bengal and others
Coram: Hon’ble Justice Sabyasachi Bhattacharyya
Case no.: WPA No. 19822 of 2023
Advocate for the Appellant: Mr. Pratik Dhar, Mr. Chittapriya Ghosh
Advocate for the Respondent: -
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