XXXX vs Union Of India

N.Nagaresh, J

The petitioner is the mother of a 14 year old minor girl, who suffered sexual abuse from her lover. The child is now pregnant. The writ petition is filed with following prayers:

“I. Issue a Writ of Mandamus or any other writ, order or direction permitting the Petitioner's minor daughter to undergo Medical termination of her pregnancy under the provision of the Medical Termination of Pregnancy Act 1971 and to issue consequential direction to the 4th or 5th respondents to conduct such termination procedure, in accordance with the law forthwith.

II. To grant such other further reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of this case.”

When this writ petition came up for consideration, this Court passed an order on 28.03.2022, which is extracted hereunder:

Pending disposal of the writ petition, there will be a direction to the respondents 4 & 5 to constitute/convene a Medical Board at the earliest and submit a report forthwith Post on 01.04.202”

Based on the above direction, a Medical Board is constituted and the Medical Board submitted a report.

From the medical report, it is clear that the pregnancy is around 26 weeks and there is no other obstetrics problem.

It is an unfortunate case in which a 14 year old rape victim is pregnant and the Medical Board says that there is chance of the newborn baby surviving. Since the victim child is only aged 15 years, there is a chance for medical complication to her health. Considering the entire facts and circumstances of the case, according to me, this is a case in which this Court should invoke the jurisdiction.

In  a  similar  situation,  the  Bombay  High  Court considered W.P.(C) Nos.10835 & 9748 of 2018 on 03.04.2019 in XYZ v. Union of India and others [MANU/MH/0565/2019] In that case, certain directions are issued regarding the welfare of the newborn child, if the newborn is surviving. It will be better to extract clause (h) & (i) in Paragraph 138 of the judgment.

“(h) we hold that where, this Court, in exercise of its powers under Article 226 of the Constitution of India has permitted medical termination of pregnancy and the child is born alive, then, the registered medical practitioner and the hospital/clinic concerned will have to assume full responsibility to ensure that such child is offered best medical treatment available in the circumstances, in order that it develops into healthy child;

(i) We further hold that where, this Court, in exercise of its powers under Article 226 of the Constitution of India has permitted medical termination of pregnancy and the child is born alive, if the parents of such child are not willing to or are not in a position to assume the responsibility for such child, then, the State and its agencies will have to assume full responsibility for such child and offer such child medical support and facilities, as may be reasonably feasible, adhering always to the principle of best interests of such child as well as the Statutory provisions in the Juvenile Justice Act.”

I think a similar order can be passed in this case also.

Therefore, this writ petition is disposed of in the following manner:

(i) The respondents 5th respondent is permitted to do the needful in accordance with the Medical Termination of Pregnancy Act. It should be done within one week from the date of receipt of a copy of this judgment. If the 5th respondent needs any expert medical assistance from any other specialists, the 5th respondent can request the Director of Health Services, and the Director of Health Services will do the needful forthwith.

(ii) If the baby born alive, the 5th respondent will do the needful in accordance with law. It is declared that if the newborn is alive, then the 5th respondent and the hospital concerned will have to assume full responsibility to ensure that such child is offered best medical treatment available in the circumstances in order that it develops into a healthy child.

(iii) It is also declared that if the parents of the child are not willing to or not in a position to assume the responsibility of the child, then the State and its agency will have to assume full responsibility of such child and offer such child medical support and facilities as may be reasonably feasible, adhering always to the principle of best interests of such child as well as the statutory provisions in the Juvenile Justice Act.