Gauhati High Court: In the present case, suo motu writ petition was registered based on a news article appearing in the Times of India dated 29-11-2024, by which this Court noted that a minor victim ‘X’, who was stated to be 14 years of age, was gang-raped by 7 people including 4 minors at a location in the district of Tinsukia and as per the newspaper report, the victim was 23 weeks pregnant at that time. The Division Bench of Kalyan Rai Surana* and Susmita Phukan Khaund, JJ., allowed the writ petition and invoked the powers under Article 226 of the Constitution to order the medical termination of pregnancy as the pregnancy was at 26 weeks and the degree of risk which was involved in every procedure for medical termination of pregnancy, at this stage or at the stage of delivery at full term of pregnancy, would be the same.
Following an administrative request to the Secretary, District Legal Services Authority (‘DLSA’), Tinsukhia, and as per Sections and of the (‘MTP Act’) and in light of the Supreme Court’s decision in A v. State of Maharashtra in , a lady Para-Legal Volunteer approached victim’s parents/guardian, and they expressed their consent for medical termination of victim’s pregnancy. Thereafter, a police case was registered under Section / read with Section of the .
The duration of pregnancy, as per the Ultra Sonography Report was estimated at 23 weeks 4 days on the date of the examination, i.e., 11-11-2024 and even though the clinical examination report stated that the victim was fit to undergo any obstetrical procedure, no opinion was expressed on the termination of the pregnancy, as under MTP Act, a termination of pregnancy of 24(+) weeks was not allowed. Thus, as on 07-12-2024, the duration of the pregnancy was estimated at around 26 weeks 1 day, with a possibility of variation of (+/-) 14 days.
The Court noted that the victim was stated to be 15 years as per the clinical examination report and at the present stage, there was a threat of life to the victim if termination of pregnancy was carried out at this stage. However, the Court opined that if the present situation was compared with the risk that the victim might undergo at the time of delivery at full term of pregnancy, the risk factor appeared 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.
The Court relied on A v. State of Maharashtra, , wherein the Supreme Court drawing on its powers under Article 142 of the Constitution, allowed the medical termination of the pregnancy of 24 weeks. The Court stated that in the present case, the pregnancy was at 26 weeks and the degree of risk which was involved in every procedure for medical termination of pregnancy, at this stage or at the stage of delivery at full term of pregnancy, would be the same. Therefore, the Court opined that it would not be powerless under Article 226 of the Constitution to order the medical termination of pregnancy.
The Court, after considering the nature of the matter’s urgency, the victim’s tender age and length of the pregnancy, opined that it found this case fit for ordering the medical termination of pregnancy, as it would be in the best interest of the victim.
The matter would next be listed on 19-12-2024 for production of status report.
[X v. State of Assam, WP(C)(Suo-Moto)/1/2024, decided on 09-12-2024]
*Judgment Authored by: Justice Kalyan Rai Surana
Advocates who appeared in this case :
For the Petitioner: T J Mahanta (SC, GHC)
For the Respondents: D. Nath, Senior Government Advocate
Buy Protection of Children from Sexual Offences Act, 2012
Buy Penal Code, 1860
Corresponding Sections and of the (‘BNS, 2023’)
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