“This Court Would Not Be Powerless U/A 226 Constitution”: Gauhati HC Allows Medical Termination Of 26 Week-Old Pregnancy Of Gang Rape Victim

The Suo Motu Writ Petition was registered based on a news article published in the Times of India which reported that a 14-year-old minor victim was gang-raped by 7 people including 4 minors in the district of Tinsukia. As per the newspaper report, the victim was 23 weeks pregnant at that time. In view of the minority of the victim, there is an apprehension that the unwanted pregnancy could lead to a substantial risk to the life of the victim, as well as the unborn foetus.

A Division Bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund remarked, “The Court is conscious of the fact that the victim girl is a minor aged about 15 years now and she is presently carrying an unwanted pregnancy of more than 26 weeks. The Court is also conscious of the fact that at this stage, there is a threat of life to the victim ‘X’, if termination of pregnancy is carried out at this stage. However, comparing the present situation with the risk that the victim may undergo at the time of delivery at full term of pregnancy, the risk factor appears to be same at the present stage as well as the risk that would be involved at the time of delivery at full term of pregnancy.”

Senior Counsel T.J. Mahanta appeared for the Petitioner, while Senior Government Advocate D. Nath represented the Respondents.

The Para-Legal Volunteer and other staff members of the District Legal Services Authority (DLSA) had recorded the statement, of the victim where she expressed her willingness for the termination of unwanted pregnancy. The parents/guardian of the victim also expressed their consent for a medical termination of the unwanted pregnancy as well.

The Medical Board constituted by the Court opined that the victim was reportedly fit to undergo any obstetrical procedure. However, the High Court noted that in view of the fact that under the Medical Termination of Pregnancy Act, 1971, termination of pregnancy of 24 weeks (+) is not allowed, no opinion was expressed on the termination of unwanted pregnancy.

The High Court Court drew a parallel between the decision of the Bombay High Court which was later set aside by the Supreme Court in A (mother of X) v. State of Maharashtra, wherein the Apex Court allowed a 24 week old pregnancy to be terminated at the instance of the victim. In the present case as well, the Court noted that the degree of risk which was involved in the procedure for medical termination of pregnancy at the present stage or at the stage of delivery at full term of pregnancy was the same.

The Bombay High Court had refused permission for the termination of unwanted pregnancy which the victim therein had suffered due to sexual assault. In the said case also, the victim was aged 14 years. Under the circumstances, taking note of the risk situation which the victim was facing there with 24 weeks old pregnancy, the Supreme Court also took note of the risk which is involved at the time of delivery of the full term of pregnancy, and held, “Bearing in mind the exigencies of the situation, the welfare of the minor, which is of paramount importance and her safety…The judgment and order of the High Court of Judicature at Bombay shall stand set aside.”

Consequently, the Court held, “In view of the nature of urgency, considering the tender age of the victim ‘X’ and the length of pregnancy, the Court is of the considered opinion that this is a fit case for ordering MTP i.e. Medical Termination of Pregnancy of an unwanted foetus which would be in best interest of the victim ‘X’ in view of her minority.”

Accordingly, the High Court listed the matter on December 19th, 2024 for production of status report.

Cause Title: In Re X v. The State of Assam & Ors.

Appearance:

Petitioner: Senior Counsel T.J. Mahanta; Amicus Curiae P. Sarma

Respondents: Senior Government Advocate D. Nath

Click here to read/download the Order