The outer limit of 24 weeks for medical termination of pregnancy under Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971, can be relaxed in exceptional cases, particularly when the pregnancy results from a gang rape and the victim is a minor.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The present writ petition has been filed by the father of an unfortunate minor girl of 11 years who is studying in Class V.

2. The minor was a victim of a gang rape, which invited proceedings under Section 376DB of the Indian Penal Code (IPC) and under Section 6(1) of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”).

3. The minor, as of today, is pregnant for about 25 weeks and 6 days.

4. The pregnancy was a result of the atrocity committed on the minor victim.

5. The father of the minor, on her behalf, seeks medical termination of the unwanted and unwarranted pregnancy, in view of the trauma which would be suffered by the minor in the circumstances, if the birth of the child goes through.

6. The learned Senior Advocate appearing for the petitioner cites Sections 3 and 5 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as “the 1971 Rules”) as well as the connected Rules of 2003. It is contended that although under Section 3(2)(b), the outer length of pregnancy which can be medically terminated under the Act is 24 weeks. The Act has to be taken as a whole. Explanation 2 of Section 3(2) provides that for the purposes of Clauses (a) and (b), where any pregnancy is alleged 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. Section 5 provides for situations where Sections 3 and 4 would not apply. In sub-section (1) thereof, such non-applicability has been extended to the termination of a pregnancy in a case where the registered medical practitioner is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

7. The learned Senior Advocate cites three judgments of coordinate Benches of this Court. A judgment of a three-Judge Bench of the Supreme Court is also referred to.

8. Since the writ petition is not adversarial, no affidavits are directed.

9. Insofar as the first coordinate Bench judgment of this Court cited by the petitioner is concerned, the same was reported at Dipak Sharma and Another vs. State of West Bengal and Others, 2022 SCC Online Cal. 2631. However, in the said case, no question of law as in the present case arose, although the victim was held to be likely to face ostracization apart from financial distress. No general proposition of law, as such, was laid down therein.

10. In the next case reported at X (Since Minor through her Mother Ansura Khatoon) vs. State of West Bengal and Others, 2023 SCC Online Cal. 277 the provisions of the statute were interpreted, and it was held that the urgency of medical intervention by way of termination of pregnancy was sufficiently impressed upon the Court.

11. In both the above cases, however, the pregnancy was within the outer limit of 24 weeks.

12. In the third coordinate Bench judgment, reported at Sabita Pradhan vs. State of West Bengal and Others, 2023 Online Cal. 1171 the victim of rape was 17 years of age and was 30+ weeks’ pregnant at the time of filing of the writ petition.

13. It was observed that the minor girl was admittedly a rape victim as required under Rule 3B(a). Further, the consensus of the Medical Board was that the pregnancy could be terminated as per the existing MTP Law. Although the risks of termination at an advanced stage of pregnancy had been mentioned, the Report indicated that the pregnancy could be terminated. The psychotropic mental state of the petitioner’s daughter and her anxious verbal output in relation to the sexual abuse were relevant pointers for immediate medical intervention, it was observed by the learned Single Judge. Under such circumstances, the mother of the minor was directed to give her consent to the termination of pregnancy as per the Act and the consent of the minor girl was also directed to be taken. The writ petition was disposed of in terms of the said obs