The judgment establishes the right of a rape victim to terminate pregnancy based on the risk to her life and mental health, as provided in the Medical Termination of Pregnancy Act, 1971.

JUDGMENT :

ALOK KUMAR VERMA, J.

1. This writ petition has been filed by the father of the minor petitioner to issue a writ in the nature of mandamus commanding and directing the respondent no. 1, State of Uttarakhand, and, the respondent no. 2, the Chief Medical Officer, Chamoli, to ensure immediate medical termination of petitioner’s pregnancy after taking all precautions as required to be taken medically and legally.

2. The case of the petitioner is that the petitioner, aged about 16 years, is a rape victim. An FIR was lodged on 12.01.2022, at Revenue Police Station, Pokhari/Jilasu, District Chamoli and it has been registered as Case Crime No. 01 of 2022, against named accused under Section 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The medical examination of the petitioner was conducted on 11.02.2022. She was advised Obstetrical Ultrasound (Sonography) test, which confirmed that she had a Single Live Intrauterine Fetus of 27 weeks 4 days (+) 15 days.

3. Heard Mrs. Monika Pant, the learned counsel appearing for the petitioner and Mr. T.S. Fartiyal, the learned Additional Chief Standing Counsel for the State through video conferencing.

4. Mrs. Monika Pant, the learned counsel appearing for the petitioner, submitted that the petitioner shall suffer mental injury if the pregnancy is continued and there will be multiple problems if the child is born alive.

5. On 24.01.2022, the Co-ordinate Bench had directed the State to constitute a Medical Board and submit its report to the Court. The report of the Medical Board is filed by the learned counsel for the State.

6. According to the report of the Medical Board, the pregnancy was found 28 weeks 5 days. The said report concluded that considering the risk to the mother and fetal viability, it is not advisable to terminate pregnancy at this gestational age.

7. On 02.02.2022, the learned counsel appearing for both the parties agreed that the said report does not disclose whether death risk of the victim is involved in undertaking the medical termination of such pregnancy or not.

8. In facts and circumstances of the case, on 02.02.2022, the Chief Medical Officer, Chamoli was requested to appear before this Court through video conferencing with his respective team to assist this Court and clarify the report of Medical Board.

9. Today, Mr. Shiv Prasad Kuriyal, Chief Medical Officer, Chamoli along with Dr. Divya Punetha, Senior Gynecologist, Dr. Manav Sexena, Child Specialist and Dr. Alind Pokhariyal, Radiologist are present through video conferencing.

10. The opinion of the members of the Medical Board is that there is a substantial risk to the life of the petitioner, if the medical termination of the pregnancy of the petitioner is conducted. They further submitted that at this stage of the pregnancy, the baby can be born with many anomalies.

11. Section 3 of the Medical Termination of Pregnancy Act, 1971 [as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021] (hereinafter referred to as “the Act”) deals with the issue when pregnancies may be terminated by registered medical practitioner.

12. Sub-Section (1) of Section 3 of the Act provides, that notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of the Act.

13. Sub-Section (2) of Section 3 of the Act provides, that 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 twenty weeks, if such medical practitioner is.

(b) Where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion,