When Child Is Going To Be Born Even Today, Let The Child Be Born After 12 Weeks: Bombay HC While Denying Abortion To Minor Girl

The Bombay High Court, Aurangabad Bench has denied the abortion of a minor girl aged 15 years saying that when a live child is going to be born even today, let the child be born after 12 weeks under the medical advice.

A Division Bench comprising Justice Ravindra V. Ghuge and Justice Y.G. Khobragade observed, “The question, therefore, is that, if a live baby is to be born even today after a forcible delivery of the child is to be performed, considering the request of the probable mother for terminating the pregnancy, an under developed live child would be born. There are chances of certain deformities being developed due to such forcible delivery. … When a live child is going to be born even today, we might as well let the child be born after 12 weeks and under medical advise, if the petitioner desires to give away the child to an orphanage, she shall have the liberty of doing so.”

The Bench said that the disadvantage of permitting forcible delivery of the child today is that a child which would have naturally developed into a well-grown baby in the 40th week will have to be brought into this world at a premature stage and that too forcibly.

Advocate Rutuja L. Jakhade appeared on behalf of the petitioner while AGP S.B. Yawalkar appeared on behalf of the respondents.

Facts -

A biological mother of a minor girl preferred a plea before the court seeking issuance of appropriate writ, order, or direction permitting the petitioner to terminate the pregnancy at the Government Medical College. The petitioner was the mother of a rape victim who was found with a man three months later by police.

As per the petitioner, her daughter went missing in February month of this year and a case was filed against the accused under the relevant provisions of the POCSO Act (Protection of Children from Sexual Offences). After examination of the victim, the medical board came to the conclusion that even if the pregnancy is terminated, the baby would be born alive.

The High Court in view of the above facts noted, “The question, therefore, is that, if a live baby is to be born even today after a forcible delivery of the child is to be performed, considering the request of the probable mother for terminating the pregnancy, an under developed live child would be born. There are chances of certain deformities being developed due to such forcible delivery.”

The Court further noted that as per the AGP, there are certain social organizations that take care of such ‘would be’ mothers like "Shaskiya Vatsalya Mahila Vastigruh" (Mother Home), near Ashok Stambh, Gangapur Road, Nashik, or the Government’s Savitribai Mahila Rajyagruha at Aurangabad, where the girl can be lodged.

The Court in the above regard observed, “We permit the Petitioner (biological mother) and the pregnant lady (would be mother) to opt for either of these shelter homes. If that happens with the consent of the biological mother and the would be mother, we direct the concerned authorities at the relevant place to ensure that a female Psychologist is provided to take care of the would be mother.”

The Court directed to ensure proper medical assistance to the victim and said that subject to following the medical protocol, if she desires to hand over the child in adoption, she would be at liberty by following the due procedure laid down in law.

“We leave option open to the Petitioner to choose a shelter home, either at Nashik or the Government’s Savitribai Mahila Rajyagruha at Aurangabad. … The District Officer, Women and Child Development Department at Nashik or at Aurangabad, as the case may be, would assist the “Would Be Mother” and shall have interaction with her on routine basis in order to monitor her condition”, also directed the Court.

The Court held that besides medical assistance, all other facilities as are normally made available to the inmates of the Mother Home and especially to the pregnant women, would be extended to the victim and that the assistance of a counsellor/psychiatrist/ motivator would also be extended to her in order to ensure that she is at peace and is in a stable physical and mental condition.

“After the child is delivered and the time is ripe for the petitioner to leave the Mother Home, she is at liberty to take a decision as to whether, she desires to keep the child or seek assistance of the Child Welfare Committee”, clarified the Court.

Accordingly, the Court denied termination of pregnancy to the victim.

Cause Title- XYZ v. The State of Maharashtra & Anr.

Click here to read/download the Order