Bombay High Court Allows 12 Year Old Minor Rape Victim To Abort 29 Weeks Pregnancy
The Bombay High Court while allowing a 12 year old minor rape victim to abort 29 weeks pregnancy observed that she cannot be forced to carry the same.
The Court was considering a Writ Petition seeking permission for medical termination of pregnancy of the Petitioner, who is 12 years and 5 months old.
The Division Bench of Justice Nitin Sambre and Justice Sachin Deshmukh observed, “…..this Court cannot force the victim to carry her pregnancy against her wish as in such an eventuality, the State would be stripping her of the right to determine the immediate and long term path of her life.”
The Petitioner was represented by Advocate Soniya Gajbhiye, while the Respondent was represented by Advocate S.A.Chaudhari.
Facts of the Case
The Case was registered for the offences punishable under Sections 64(2)(f), 64(2)(m), 65(2), 351(2) of Bhartiya Nyay Sanhita, 2023 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, wherein the allegation was that the cousin uncle of the victim committed the offence in question.
Counsel for the Petitioner submitted that in spite of the report/opinion given by the Medical Board, the parents of the Petitioner and the Petitioner herself are willing to undergo the medical termination of pregnancy, even if such process is at high risk. According to her, there is no life threat to the petitioner in case if she is permitted to undergo medical termination of pregnancy. The Counsel cited the Supreme Court’s judgment in the matter of X vs. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2023).
It was argued that since the right to carry pregnancy is by virtue of the choice of a woman like the Petitioner in the present case, one cannot force to continue the pregnancy as in case if the termination is not allowed, the same is likely to affect the mental and physical health condition of the victim.
On the other hand, the Government Pleader urged that considering the expert opinion, it will not be justifiable to permit the medical termination of pregnancy as there is high risk having regard to the age and fetal gestational age. He cited the latest judgment of the Apex Court in the matter of A (Mother of X) v. State of Maharashtra & Anr. (2024 INSC 371).
He contended that no doubt the right under Article 21 of the Constitution of India can be recognised, however, the Court is equally required to be sensitive to the risk that is involved in the case particularly as can be seen from the factual matrix of the case in hand.
Reasoning By Court
The Court noted that it is not the opinion of the Medical Board that the life of the victim is at risk in case the process of medical termination of pregnancy is carried but perhaps, the patient in such an eventuality may develop complications.
It took note of the fact that not only has the victim assented for medical termination of pregnancy, but also the parents have undertaken to furnish high-risk consent to the Authority in case the procedure is carried out.
Noting that the Government Pleader has specifically assured that safety protocol shall be duly followed in case if medical termination of pregnancy is permitted, the Court observed, “In the aforesaid background and having regard to the law laid down by the Apex Court in the aforesaid three judgments, it has to be inferred that this Court cannot force the victim to carry her pregnancy against her wish as in such an eventuality, the State would be stripping her of the right to determine the immediate and long term path of her life.”
In view of the matter and considering the fact that there is no life threat to the Petitioner as certified by the Medical Board, the Court deemed it appropriate to direct the Dean, Government Medical College, Akola to permit the Petitioner to undergo medical termination of pregnancy at the earliest by taking recourse to the safety protocol and by complying with the observations.
The Petition was accordingly allowed.
Cause Title: XYZ vs. Union of India and others (2025:BHC-NAG:5539-DB)
Appearances:
Petitioner– Advocate Soniya Gajbhiye
Respondent– Advocate S.A.Chaudhari, Senior Advocate D.V.Chauhan, Assistant Government Pleader H.D.Marathe.
