The High Court of Kerala in the case of XXX vs. Union of India, State of Kerala, The Superintendent, Medical College Hospital Manjeri and The Superintendent, Medical College, Kozhikode, WP(C). No. 9982 OF 2021(W) held that the pregnancy in the case of a minor girl who was raped can be terminated even after the limit of medical pregnancy as per Medical Termination of Pregnancy Act, 2021 has been crossed.
Facts: A minor girl aged 13 years along with her parents approached a hospital complaining of stomach pain. The doctors conducted physical examination and found that the girl was pregnant by almost 6 months. The scan report showed that the foetus was almost 24 weeks and 4 days old.
A crime was registered, and during investigation, it was suspected that the minor girl was a victim of rape by her own sibling aged 14 years old. Accordingly, a report was filed before the Juvenile Justice Board.
Contention: The minor girl’s father (Petitioner) contended that his daughter is a rape victim at the hands of her own brother. Accordingly, he sought for direction to terminate the pregnancy. The Petitioner also contended that the victim was a premature child, and due to the young age of the victim, the pregnancy may have consequences on the victim, parents and even the unborn child.
Accordingly,the court directed the hospital (Respondent 4) at which the minor girl was admitted to constitute a medical board and report to the court as to whether medical termination of pregnancy can be performed on the victim. The observation of the Medical Board was as follows:
“As per the Medical Termination of Pregnancy Act 2021 (MTP Act), she is beyond the limit of legal medical termination (Gestational age by Ultrasound Scan is 26 weeks and 6 days). If medical termination is considered she stands certain medical risks… However, the board observed that medical termination of this pregnancy can be considered accepting the higher risks and facts mentioned above.”
Law: Section 3 and 4 of MTP Act provides for medical termination.
- Section 3 (2) has been amended by the Medical Termination of Pregnancy (Amendment) Act 2021 (Amendment Act), which states that if the pregnancy:
- does not exceed 20 weeks, opinion of one medical practitioner is needed;
- exceeds 20 weeks but does not exceed 24 weeks, opinions of at least two registered medical practitioners are needed;
- Explanation 2 to Section 3(2) states “Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”
- The Amendment Act also adds Section 2B which states that the provisions of Section 3(2) stated above shall not apply if such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.
- Section 3(3) states that in determining whether the pregnancy poses risk of injury to the pregnant woman, account may be taken of the woman’s actual and reasonable foreseeable environment.
- Section 4(a) states that if the pregnant woman has not attained the age of 18 years, then written consent of the parent/guardian is required.
Analysis: The court observed in the instant case that the victim is a minor girl. The pregnancy will cause grave injury to the minor as it may possibly remind the victim of the incident of rape.
The court also stated that “It is obviously not in the interest of the society to have this young victim to undergo the trauma of the incident of rape everyday in her life.” This anguish will be shared by the parents and siblings of the victim.
The court further referred to several case laws where the courts have allowed for medical termination of pregnancy even after having exceeded the prescribed gestation period. One such case is Ms. X v. State of Kerala and Others (2016 (4) KLT 745), wherein the court ordered termination of pregnancy exceeding 20 weeks as the rape victims were not mentally prepared to deliver the child. In A v. Union of India ((2018) 4 SCC 75), the Hon’ble Supreme Court ordered termination of pregnancy in a case where the gestational age was 25-26 weeks.
The court observed that the minor victim in the instant case is also not prepared to deliver a child in the given situation. Further, the medical board suggested that medical termination can be considered if the higher risks are acceptable. Accordingly, court took into consideration the opinion of the parents, who also wanted the pregnancy to be terminated, and it also took note of the possibility of genetic disorders in the unborn child due to the close relationship between the victim, and the offender.
Decision: Therefore, taking all the above points into consideration, the court declared that the petitioner’s minor daughter’s pregnancy is liable to be terminated.
– Prerana Saraf, Advocate & Associate, POSH at Work