Uttarakhand High Court
Through: Ms. Snigdha Tiwari vs State Of Uttarakhand on 6 December, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (MS) No. 3105 of 2022
'X' represented by her
father and natural guardian. ................Petitioner.
Through: Ms. Snigdha Tiwari, Shri Abhijay Negi
and Shri Abhishek Rana, learned counsel for the
petitioner.
-Versus-
State of Uttarakhand
and others. .........Respondents.
Through: Shri Suyash Pant, learned Standing
Counsel and Shri J.S. Virk, learned Deputy
Advocate General, for the State of Uttarakhand.
Date of Hearing & Order : 06.12.2022
Shri Sanjaya Kumar Mishra, J.
1. By filing this writ petition, a victim of sexual assault, aged
about 13 years, has prayed for a direction, by issuing a writ of
Mandamus, to Chief Medical Officer, Dehradun and Doon
Medical Hospital, Dehradun through its Managing Director to
terminate the pregnancy of the petitioner caused due to illegal act
perpetuated upon her.
2. This writ petition has been filed through her father and
natural guardian. He and victim girl appeared before this Court
virtually. He has consented for medical termination of unwanted
pregnancy, though a panel of doctors constituted by this Court as
per order dated 05.12.2022, has stated that since termination of
pregnancy at any stage entails various medical surgical
complication including risk of operative delivery and anaesthetic
complications and ICU admission and danger of life, so it can be
attempted with complete informed consent.
3. It is not disputed at this stage that pregnancy of the victim
girl, who is petitioner before us, has pregnancy of 25 weeks and 4
days. Sub section (2) of Section 3 of the Medical Termination of
Pregnancy Act, 1971 provides for termination of pregnancy
where the length of pregnancy exceeds 12 weeks but does not
exceed 24 weeks can be done on the opinion of two registered
medical practitioners.
4. In similar cases, several High Courts and Hon'ble Supreme
Court have granted permission for termination of pregnancy
even after completion of 24 weeks of pregnancy. We take note of
the following cases:
i. In X Vs. Union of India (2017) 3 SCC 458,
after 24 weeks of pregnancy as the pregnancy
involves grave risk to the life of the petitioner and
possible grave injury to her physical and mental
health, medical termination was allowed by the
Hon'ble Supreme Court.
ii. The Hon'ble Supreme Court, in A. Vs. Union of
India, (2018) 14 SCC 75, has permitted termination in
a case where the gestational age was 25-26 weeks, and
in Sarmishtha Chakrabortty v. Union of India, (2018)
13 SCC 339, the Hon'ble Supreme Court permitted
termination of the pregnancy when the gestational
age was 26 weeks.
iii. 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 though the Board stated that
termination will have equal danger for the mother.
iv. In Suchita Srivastava Versus Chandigarh
Administration, (2009) 9 SCC 1 and in Meera
Santosh Pal v. Union of India, (2017) 3 SCC 462, the
Hon'ble 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. In Meera Santosh
Pal (Supra), the pregnancy was into the 24th weeks.
The Hon'ble Supreme Court permitted the petitioner
to terminate the 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.
5. This Court in the case of X through her father Vs. State of
Uttarakhand, 2022 SCC Online Utt 61 has allowed the
termination of pregnancy of 25 weeks of 16 year old girl by the
team of experts. The Delhi High Court, today, in a case reported
in livelaw has allowed termination of pregnancy of 33 weeks of a
26 year old woman.
6. Having given our anxious consideration to the facts of the
case, the different judgments of Hon'ble Supreme Court and
High Courts, we are of the opinion that in this case, we should
allow the Medical Board, which has already been constituted to
proceed with medical termination of pregnancy of the victim girl,
if there is no danger to the life of victim girl. The medical
termination of pregnancy should be carried out under the
guidance of Dr. Chitra Joshi, HOD, OBGY, GDMC, Dehradun
and during the medical procedure, if they find any risk or danger
to the life of the victim girl, then they have discretion to cancel
the procedure for medical termination of pregnancy. The reasons
which persuaded us to pass the order of termination of
pregnancy are conception by the petitioner is a result of offence of
rape committed upon her by her close relative. The unwed
mother (victim girl) is a minor and has to undergo the ignominy
of an undesirable pregnancy. It will hamper her further physical
and mental growth. It will also affect her future education
prospects. The social stigma the victim girl will face will be
insurmountable in this case, as the petitioner and his daughter
belong to very humble walks of life. The social stigma the unborn
child will face is also a matter of great concern to us as the child
will definitely be viewed with disdain and will be looked down
upon as an undesirable child by his / her peers in society.
7. Initially, the Medical Termination of Pregnancy Act, 1971
prescribes the limit of 20 weeks for medical termination of
pregnancy. However, the Parliament passed an amendment Bill
in 2020 and raised the period of pregnancy for termination from
20 weeks to 24 weeks keeping in view the advancements made in
the field of medicines.
8. In this case, Medical Board constituted by us has informed
the justification for the decisions - circumstances of pregnancy,
age of victim girl, examination finding and risk intend with
antimission of a teen age pregnancy, (pre-eclampsia, anemia, etc.)
and danger to psyche and emotional health of the girl, it is
recommended that we can go forward with the termination of the
pregnancy. However, it has to be ensured that since termination
of pregnancy at any stage entails various medical surgical
complication including risk of operative delivery and anesthetic
complications and ICU admission and danger of life, so it can be
attempted with complete informed consent.
9. In that view of the matter, respondents are directed to
proceed with termination of pregnancy as expeditiously as
possible without any further delay. Before proceeding with the
termination of pregnancy it shall be proper for the Medical Board
to obtain declaration from the father of the victim girl that he has
consented to terminate his daughter's pregnancy. It may be
mentioned that victim and her father are connected virtually and
have given their consent. They have in clear and unequivocal
terms agreed for termination of pregnancy knowing the risk
involved in it on being informed of it.
10. List this matter on 09.12.2022 awaiting intimation.
11. Let a certified free copy of this order be handed over to Shri
Suyash Pant, learned Standing Counsel and Shri J.S. Virk, learned
Deputy Advocate General for the State during the course of the
day for early compliance.
(Sanjaya Kumar Mishra, J.)
(Grant urgent certified copy of this judgment, as per Rules)
SKS
