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2023 Supreme(Cal) 1313
IN THE HIGH COURT AT CALCUTTA
MOUSHUMI BHATTACHARYA, J.
‘X’ (Since Minor through her Mother Ansura Khatoon) – Petitioner
Versus
State of West Bengal and Others – Respondents
WPA No. 2909 of 2023
Decided On : 07-02-2023
Advocate Appeared:
For the Petitioners: Sutapa Sanyal, Amit Chowdhury.
For the Respondents: Pantu Deb Roy, Pannalal Bandopadhya, Sabyasachi Banerjee, Arindam Chandra, Atish Ghosh, Sumana Biswas, Antara Dey.
IMPORTANT POINT
The central legal point established in the judgment is the allowance of urgent termination of pregnancy for a minor under the Medical Termination of Pregnancy Act, 1971, and the Rules, based on the risk to the life of the pregnant minor and the urgency of the situation.
Headnote:
Medical Termination of Pregnancy - Urgent Termination of Pregnancy for Minor - Medical Termination of Pregnancy Act, 1971, Rule 3B of the Medical Termination of Pregnancy (Amendment) Rules, 2021 - The court allowed the urgent termination of pregnancy for a minor under the Medical Termination of Pregnancy Act, 1971, and Rule 3B of the Medical Termination of Pregnancy (Amendment) Rules, 2021, due to the risk to the life of the pregnant minor and the urgency of the situation.
Fact of the Case:
The petitioner, an unnamed minor, sought urgent orders for the medical termination of her pregnancy following an accident. The petitioner's life was at risk due to the pregnancy, and the court was approached for permission to terminate the pregnancy.
Finding of the Court:
The court found that the petitioner's life was at risk due to the pregnancy and that there was an immediate need to allow the termination of the pregnancy. The court directed the respondent hospital to carry out the medical termination of pregnancy in compliance with the Act and the Rules.
Issues: The main issue was whether the urgent termination of pregnancy for a minor could be allowed under the Medical Termination of Pregnancy Act, 1971, and the Rules, considering the risk to the life of the pregnant minor and the urgency of the situation.
Ratio Decidendi: The court relied on the provisions of the Medical Termination of Pregnancy Act, 1971, and Rule 3B of the Medical Termination of Pregnancy (Amendment) Rules, 2021, which allow termination of pregnancy for minors in certain circumstances where there is a risk to the life of the pregnant woman. The court also considered the urgency provision under section 5(1) of the Act.
Final Decision: The court allowed the urgent termination of pregnancy for the petitioner and directed the respondent hospital to carry out the medical termination of pregnancy in compliance with the Act and the Rules. The writ petition was disposed of, and the reports of the hospital were to be filed with the police authorities.
JUDGMENT :
MOUSHUMI BHATTACHARYA, J.
1. The petitioner is an un-named minor who has approached the Court for urgent orders permitting the medical termination of her pregnancy. The petitioner met with an accident on 18.12.2022 and her mother was subsequently made aware of the fact that the petitioner was pregnant pursuant to which an FIR was lodged at the Watganj Police Station under the POCSO Act, 2012. The petitioner was shifted to the CCU of the respondent no. 2 Medica Hospitals on 24.12.2022 and has been in a critical state thereafter. The petitioner suffered a cardiac arrest on 27.12.2022 and was on the ventilator till 2.2.2023. The petitioner is presently on Advanced Cardiac Life Support Protocol.
2. The petitioner seeks immediate termination of her pregnancy.
3. Medica Hospitals, represented by learned counsel, reiterates that the petitioner’s present physical condition was brought about by the road accident. Counsel submits that the petitioner’s life will be at risk if there is further delay in the termination of her pregnancy. Counsel places a letter written by the petitioner’s mother to the Hospital on 31st January, 2023 requesting the Hospital to terminate the pregnancy. Counsel also refers to a specific statement made in the writ petition that the petitioner’s mother takes full risk of any medical intervention in relation to the pregnancy and will exonerate the respondent of any liability in respect of the outcome of such medical intervention.
4. Learned counsel appearing for the State places a Notification dated 17th July, 2020 of the State Family Welfare Bureau under section 4(b) of the relevant Act and the Rules for nomination of the members of a Committee in the matter of supervising implementation of the Act and the Rules.
5. The petitioner is presently a little above 16 years of age. A Report of the Hospital dated 3rd February, 2023 shows that the petitioner was in the second trimester of her pregnancy and was, more specifically, 22 weeks 5 days pregnant as on that date. Hence, the petitioner is 23 weeks and 2 days pregnant as of today.
6. The first question is whether The Medical Termination of Pregnancy Act, 1971 and the Rules framed thereunder allows termination of pregnancy at 23 weeks and 2 days. Section 3(1) of the Act provides for situations where a pregnancy may be terminated by a registered medical practitioner notwithstanding anything contained in the Indian Penal Code 1860 or under any other law for the time being in force. Sub-Section (2)(b) of section 3 permits termination of a pregnancy by a registered medical practitioner where the length of the pregnancy exceeds 20 weeks but does not exceed 24 weeks in case of such category of women as may be prescribed by the Rules under the Act if not less than two medical practitioners are of the opinion, formed in good faith, that the continuation of the pregnancy would involve a risk to the life of the pregnant woman or result in grave injury to her physical or mental health or that there would be a substantial risk of physical or mental abnormality to the child, if born.
7. Rule 3B of the Medical Termination of Pregnancy (Amendment) Rules, 2021 sets out the categories of women under section 3(2)(b) who may have their pregnancies terminated beyond 20 weeks but before 24 weeks. The categories mentioned include minors and survivors of sexual assault or rape [Rule 3-B (a) and (b)]. This was taken into consideration by a three-Judge Bench of the Supreme Court in X vs. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, 2022 SCC Online SC 1321.
8. In the present case, since the petitioner is a minor, the facts would be governed under section 3(4)(a) of the Act which stipulates inter alia that no pregnancy of a woman who has not attained the age of 18 years shall be terminated except with the consent in writing of her guardian.
9. The petitioner’s mother has already given her consent to the termination of the petitioner’s pregnancy by a lette
