ORDER :

This writ petition is filed by xxxxx, who is aged 16 years, through her mother and natural guardian, seeking for a direction to the respondent No.4 to terminate her pregnancy medically, as per the provisions of the Medical Termination of Pregnancy Act, 1971 and as amended in 2021.

2. It is stated in the affidavit by the petitioner that a member of her extended family sexually exploited her without her consent. She was threatened and emotionally abused with dire consequences. She did not reveal the situation to anyone in her family. Subsequently, when she was not keeping good health, she was taken for medical check up on 29.09.2011 to the respondent No.4/hospital. As directed by the said hospital, she approached C.C. Shroff Memorial Hospital for medical check-up where she was diagnosed with foetus of 25 weeks. Currently, the gestational age of the foetus is 26 weeks. On enquiry by the parents, the petitioner stated that she was threatened with dire consequences and the accused threatened to kill her mother. On a complaint lodged on 24.09.2021 by the mother of the petitioner against one Anjaneyulu @ Anji, FIR.No.239 of 2021 was registered for the offences under Sections 376(2) and 506 IPC and Section 6 read with Section 5 of the Protection of Children from Sexual Offences Act, 2012. Later during investigation, A2 was also included as accused.

3. It is submitted that during check-up at C.C. Shroff Memorial Hospital, the concerned doctors have submitted detailed observation stating the foetal biometry as 25 weeks as on 22.09.2021 and that the petitioner’s health is not in a stable condition and she was advised with necessary medical care. It is further submitted that there is a threat to the physical and mental health of the petitioner, aged 16 years, as the formation of foetus is not a choice but purely circumstantial, as the pregnancy is the result of sexual assault and rape. The petitioner at her tender age is not in a position to bear the child physically, mentally and financially. Considering the situation of the petitioner, who is in dire need of protection and dependency, she is not in a stage to bear or nourish the foetus. The respondent No.4/hospital did not terminate the pregnancy of the petitioner as the petitioner was beyond gestation period and needs permission as established by law.

4. Ms. Sravya Katta, learned counsel for the petitioner, submitted that a woman’s right to make reproductive choice is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. A woman has self-rule over her body. The right to life and individual freedom under Article 21 of the Constitution of India envelops the option to settle on regenerative decisions. It is inhuman to subject woman, who is over 24 weeks pregnant, to legal deferrals. Infringement of right to life of a rape victim outweighs the right to life of the child in the womb.

5. It would be relevant to refer to Section 3(2) of the Medical Termination of Pregnancy (Amendment) Act, 2021, for the sake of convenience, as under:

“3. In section 3 of the principal Act, for sub-section (2), the following sub-sections shall be substituted, namely:— "(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 twenty weeks, if such medical practitioner is, or

(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, formed in good faith, that—

(i) the continuance of the pregnancy would involve a risk to the life o