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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vinod S. Bharadwaj, J.
ABC – Appellant
Versus
State of Punjab & Ors. – Respondents
CWP No. 29383 of 2023
Decided On : 10-01-2024
Mandamus - Medical Termination of Pregnancy - Medical Termination of Pregnancy Act, 1971, Section 3 - 3
Fact of the Case:
The petitioner filed a writ petition seeking a mandamus to terminate the pregnancy of his minor daughter, who was a victim of rape. The medical examination confirmed that the pregnancy was within the permissible age for medical termination under the Medical Termination of Pregnancy Act, 1971.
Finding of the Court:
The court found that the continuation of the pregnancy would cause great physical and psychological trauma to the minor, and it would not be in the best interest of the unborn child or the petitioner's minor daughter to continue the pregnancy.
Issues: The main issue was whether the court should allow the termination of the pregnancy of the minor daughter in accordance with the Medical Termination of Pregnancy Act, 1971.
Ratio Decidendi: The court relied on the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971, which allows for the termination of pregnancy if it poses a risk to the life or health of the pregnant woman, or if there is a substantial risk of physical or mental abnormalities in the child. The court also considered the anguish caused by the pregnancy as constituting a grave injury to the mental health of the pregnant woman.
Final Decision: The court allowed the petition and directed the medical institute to carry out the medical termination of the pregnancy of the petitioner's minor daughter in accordance with the law.
Judgment
Mr. Vinod S. Bhardwaj, J.
The instant writ petition has been filed invoking writ jurisdiction of this Court for issuance of a writ in the nature of Mandamus directing the respondents to terminate the pregnancy of daughter (the victim) of the petitioner in view of the provision of the Medical Termination of Pregnancy Act, 1971.
2. Learned counsel appearing on behalf of the petitioner contends that the minor daughter of the petitioner aged about 15 years was abducted by resident of village Ranga, Tehsil and District Sirsa on 10.08.2023. The minor daughter of the petitioner was recovered from the illegal custody by filing a criminal writ petition titled as “ After recovery, the minor was got medico-legally examined, whereupon, she was found pregnant of more than 12 weeks. Thereafter, the minor disclosed the fact to her mother (the petitioner) that had committed rape upon her. In this regard, an FIR No. 0346 dated 28.11.2023 under Sections 363 and 366-A of the IPC had been registered at Police Station City Kharar, District SAS Nagar. He submits that the petitioner is a minor and continuation of her pregnancy will cause a great physical and psychological trauma to the minor and he further contends that the minor daughter of the petitioner being dependent for her own self is not in a situation to take care of the child in case she is supposed to deliver a child Learned counsel for the petitioner submits that since the pregnancy is more than 12 weeks old, the petitioner is bound to approach this Court for seeking termination of the pregnancy in accordance with the statutory mandate.
3. Vide order dated 04.01.2024, the minor daughter of the petitioner was directed to appear before office of Civil Surgeon on 06.01.2024 for her medical examination and other necessary tests. A report from the Board of Directors was also called for in this regard.
4. Pursuant to the said order, the minor daughter of the petitioner appeared before the Medical Board of the AIMS, Mohali and subjected herself to the medical examination. A report of Board of Directors has been handed over to the Court today and the same is taken on record as Mark ‘A’. The relevant extract of the said report as under:-
“Subject: Report of victim X, age 15 yrs resident of Village Bathlana, Mohali, Punjab, reference your office letter no. AIMS/MS/Mohall/2024/30 dated 08.01.2024.
Respected sir
On the subject under reference, medical board has been constituted for examination of victim X, age 15 years, resident of village Bathlana, Mohali reported for medical examination to Civil Surgeon Office, Mohali vide court order CWP-29383-2023 dated 04.01.2024 from Punjab and Haryana High court, Chandigarh, bearing MLC no. KK/45/2023 Dated 02/12/2023. The board member included:
1. Dr Susmita Sharma, Professor and HOD, Obstetrics and Gynaecology, AIMS, Mohali
2. Dr Vijay Bhagat, Radiologist and SMO, District Hospital, Mohali
3. Dr Nidhi Malhotra, Associate Professor, Psychiatry, AIMS, Mohali
4. Dr Manvi Singh. Assistant Professor, Pediatrics, AIMS, Mohali
6. Dr Nisha Bhagat. Assistant Professor, Gynaecology and Obstetrics, AIMS Mohali.
The medical board was called in the office room of Dr. Susmita Sharma in Department of Obstetrics and Gynaecology on 08.01.2024 as the above patient was asked to report to medical board on 08.01.2024 for the necessary examination. The patient was brought by Investigation officer Balwinder Singh (ASI) belt no. 123/S AS, Nagar, P/S Kharar.
Victim X was examined clinically and USG was done for fetal age and well being on 09/01/2024 Board is of the opinion that the gestational period is less than 20 weeks, which is permissible age for medical termination of pregnancy as per MTP Amendment Act 2021. So the victim is fit for Medical Termination of Pregnancy as per the clinical examination reports.
Attachments: Clinical examination slip, USG report with film, relevant antenatal investigations (All documents in original)”
5. He refers to provisions of Section 3 of the Medical T
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The court ruled that a minor victim of rape may have her pregnancy terminated under the Medical Termination of Pregnancy Act, 1971, if it poses a grave risk to her mental health.
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Termination of 28-week high-risk pregnancy of minor victim permitted beyond statutory limit, safeguarding physical/mental health and right to dignity under Article 21 based on Medical Board opinion.
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A minor rape survivor's mental health is a critical consideration in granting permission for medical termination of pregnancy beyond statutory limits.
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The Court reiterated that the rights of minor victims of sexual assault must be balanced with welfare considerations in matters of pregnancy termination under the Medical Termination of Pregnancy Act....
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