While Forming Its Opinion On Termination Of Pregnancy, Medical Board Should Also Evaluate Physical & Emotional Well Being Of Pregnant Person: Gujarat HC

The petitioner-father had approached the High Court seeking a permission for terminating his minor daughter’s pregnancy of 24 weeks at the earliest. It was submitted by the petitioner that the continuance of pregnancy would cause grave injury to the daughter of the petitioner – victim, in the interest of justice.

The Single-Judge Bench of Justice Sanjeev J. Thaker affirmed, “The case on hand falls within the purview of MTP Act and this Court finds that right of bodily integrity calls for permission to allow her termination of pregnancy.”

Advocate Yogesh K Manghani represented the Applicant while Additional Public Prosecutor Ronak Raval represented the Respondent-State.

The victim, who is aged 16 years, is a victim of rape. An FIR was registered for commission of alleged offences punishable under Sections 87 and 64(2)(m) of the Bhartiya Nyaya Sanhita, 2023 along with sections 4 and 6 of the Protection of Children from Sexual Offences Act,2012. It was the case of the petitioner-father that it had come to his knowledge that the victim was carrying a pregnancy of 21 weeks and 6 days after she was examined at the Department of Radiodiagnosis.

For the petitioner, Manghani submitted before the Court that the petitioner had taken the consent of the victim for the termination of pregnancy and the victim had expressed her willingness to undergo the procedure. It was further contended that looking at the age of the victim, who is merely of 16 years and 2 months, the victim will not be fit for responsibility of raising child at this tender age and if the victim continues with the pregnancy it would adversely affect her physical and mental health.

The Bench noted that the opinion of the expert panel clearly stated that continuation of pregnancy may be harmful physically as well as psychologically and the said report also opined that considering the age of victim, the medical termination of pregnancy could be done with associated due risk. The doctors had opined that termination of pregnancy can be done.

“The guidelines for termination of pregnancy as well as the scheme of MTP Act show the seriousness attached to the well being of pregnant person throughout the process envisaged under MTP Act. Moreover, the opinion of the pregnant woman must be given primacy and the fact that on 05.11.2024 she has given her consent before the doctor and in the further affidavit filed on behalf of the petitioner the said consent of the minor herself and her father continues and, therefore, once the victim does not want to continue with the pregnancy then this Court cannot compel her to continue with the pregnancy”, the Bench held.

Reference was also made to Explanation-2 of clause (a) and (b) of sub-section (2) of Section 3 of ‘the MTP Act’ which states that whensoever any pregnancy is alleged by pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

The Bench thus directed the Superintendent of GG Hospital, Jamnagar to arrange for medical termination of pregnancy of the victim. Considering the consent given by guardian and the victim herself, the present petition was allowed and accordingly the Court permitted the termination of pregnancy of the victim.

The High Court relied upon a judgment in A (Mother of X) vs. State of Maharashtra and others [Civil Appeal No.5194 of 2024] where the Supreme Court granted permission for termination of pregnancy to the minor girl wherein the pregnancy was of 29.6 weeks and also issued certain fresh directions.

Thus, the High Court also issued the following guidelines for the registered medical practitioner / medical board to follow while forming its opinion on termination of pregnancy:

• The registered medical practitioner / medical board must not restrict its opinion to the criteria under Section 3(2-b) of the MTP Act but must also evaluate the physical and emotional well being of the pregnant person;
• the registered medical practitioner / medical board, in their report, must give their opinion whether carrying of the pregnancy to the full term would impact upon the physical and mental well being of the victim / minor / pregnant woman whose termination of pregnancy is sought for;
• The registered medical practitioner / medical board should also opine on whether termination of pregnancy can be carried out at this stage without any threat to the person whose termination of pregnancy is sought for.

Cause Title: XYZ through her father vs State Of Gujarat [ Cause Title: R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 14775 of 2024]

Appearance:

Applicant: Advocate Yogesh K Manghani & Prerak P Oza

Respondent: Additional Public Prosecutor Ronak Raval

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