Gauhati High Court permits abortion of 26-week pregnant minor gangrape victim

Guwahati: The Gauhati High Court has permitted the abortion of a 15-year-old gangrape victim, currently 26-week pregnant, from Assam's Tinsukia district in her "best interest".

Taking a suo motu cognisance of a media report, a division bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund on Monday asked the state government to carry out a "medical termination of pregnancy" of the unwanted foetus and submit a status report by December 19.

According to the Medical Termination of Pregnancy Act, 1971, (MTPA) termination of pregnancy of over 24 weeks is not allowed.

The order said that according to a news article on November 29, the victim was 14 years old when she was gangraped by seven persons, including four minors in Tinsukia.

Hearing the case (WP(C) (Suo Moto)/1/2024) on December 5, the court constituted a medical board and a district-level committee in accordance with the MTPA to examine the victim as to whether it would be appropriate to have the unwanted pregnancy terminated, with special emphasis to the risk involved in such a procedure.

The medical board in its report said the girl is "fit to undergo any obstetrical procedure", but refrained from suggesting termination of pregnancy in view of the MTPA.

The HC said, "The court is conscious of the fact that the girl is a minor and she is presently carrying an unwanted pregnancy of more than 26 weeks. The court is also conscious of the fact that at this stage, there is a threat to life of the victim, if termination of pregnancy is carried out at this stage.

"However, comparing the present situation with the risk that the victim may undergo at the time of delivery at full-term of pregnancy, the risk factor appears to be same at the present stage as well as the risk that would be involved at the time of delivery at full-term of pregnancy," it added.

Referring to a Supreme Court judgment in April this year related to a similar case of Maharashtra, the Gauhati HC said it has the power to order the medical termination of pregnancy under Article 226 of the Constitution of India.

"...the Court is of the considered opinion that this is a fit case for ordering MTP i.e. Medical Termination of Pregnancy of an unwanted foetus which would be in best interest of the victim 'X' in view of her minority." "As the medical termination of pregnancy would be carried out in terms of the order of this court, it goes without saying that the penal provision of the Medical Termination of Pregnancy Act, 1971 and Rules framed thereunder would not be attracted," it added.

Accordingly, the court directed to constitute a team of expert medical practitioners to undertake the medical termination of pregnancy of the minor at a facility in Tinsukia or at Assam Medical College and Hospital in neighbouring Dibrugarh district at state expenditure.

"The district authorities shall also take the help of a counselor for the minor so as to assist her in mental preparation to undergo the procedure as well as post counseling, if so required," it added.

The order also noted that the parents and victim expressed their consent for a medical termination of the unwanted pregnancy knowing about the risks involved in the procedure.