1. Heard Mr. Z. Rahman, the learned, counsel appearing for the petitioner. The respondent Nos. 1 and 2 are represented by Mr. B. Gogoi, the learned standing counsel for the Health Department. The Government advocate, Mr. S.S. Roy appears for the O.C., Khetri RS. (respondent No. 3). The learned counsel Mr. R. Mazumdar has rendered assistance to the court as an amicus curiae.

2. The matter pertains to a minor girl of around 11 years, who is carrying an unwanted pregnancy. The victim was sexually assaulted over a period of time by an elderly neighbour and the family recently learnt of the victim's plight.

3. After lodging the FIR on 15.9.2017 (Annexure 1), leading to registration of the Khetri RS. Case No. 106/2017, under section 376 IPC, read with section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’), the father of the victim approached the Gauhati Medical College & Hospital (GMCH) authorities for termination of pregnancy of the minor but the Doctors did not accede to the said request. Therefore, this petition is filed with prayer for constitution of a Medical Board, to examine the feasibility of terminating the pregnancy, of the minor victim.

4. Following the court's direction issued on 25.10.2017, for constitution of the Medical Board by the Superintendent of the Gauhati Medical College & Hospital (GMCH), the victim visited the Hospital and the Doctors at the GMCH examined her on 28.10.2017. The report under the signature of the Chairman of the Medical Board, produced by Mr. B. Gogoi, reflects that the ultrasound test conducted on 26.10.2017, revealed that the girl was undergoing 26 weeks + 1 day of gestation period. Therefore, the Medical Board opined that under the existing norms, the patient is unfit to undergo medical termination of pregnancy.

5. The above opinion of the Medical Board is with reference to the legal restriction on medical termination of pregnancy, imposed by the Medical Termination of Pregnancy Act, 1971 (‘the MTP Act’). But the Board did not state whether it is medically feasible, to attempt termination of pregnancy of the child victim. In other words, if the Doctors were at liberty to independently decide without being impeded by the MTP Act, whether the procedure for termination of pregnancy can be attempted. This aspect is being considered by the court, as the petitioner, who is the father of the victim, has indicated that the victim child does not wish to carry the pregnancy, to its full term.

6. The MTP Act was substantially structured on the Abortion Act of 1967, which was the law in England. The Legislature intended to provide only a qualified right to abortion and the Indian Law does not recognize termination of pregnancy, as a normal recourse, for expecting mother. In Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, the Supreme Court declared that a woman's right to make reproductive choices is also a dimension of “personal liberty”, under article 21 of the Constitution of India. Reading the provisions of the MTP Act, the court held that in case of pregnant woman, there is also “compelling State interest”, in protecting the life of the prospective child. Hence, it was observed that the MTP Act should be viewed as reasonable restriction placed by law on the exercise of reproductive choices.

7. At this stage, the relevant provisions of the MTP Act should be referred to and they are extracted hereinbelow for quick reference:

“3. When Pregnancies may be terminated by registered medical practitioners.

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(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner:

(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are.

Of opinion, formed in good faith, that,-

(i) the continuance of the pregnancy woul