Delhi High Court
Minor N Thr Mother P vs State Of Nct Of Delhi And Anr. on 7 September, 2024
Author: Anoop Kumar Mendiratta
Bench: Anoop Kumar Mendiratta
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 07 September, 2024
+ W.P.(CRL) 2728/2024
MINOR N THR MOTHER P .....Petitioner
Through: Mr.Anwesh Madhukar and Ms.Prachi
Nirwan, Advs. alongwith petitioner in
person.
versus
STATE OF NCT OF DELHI AND ANR. .....Respondents
Through: Mr.Yasir Rauf Ansari, ASC with Mr.
Alok Sharma and Mr. Vasu Agarwal,
Advs for the State alongwith PSI
Amrita, P.S. Jaitpur.
Ms.Arunima Dwivedi, CGSC with
Ms.Pinky Pawar, Advocate for UOI
and Dr.Yamini Sarwal, Department of
Obstetrics & Gynecology, Dr.Sumitra
Bachani, Department of Obstetrics &
Gynecology, Dr.Shefali Gupta,
Department of Radiology, Dr.Amit,
Department of Pediatrics and
Dr.Abhilasha Yadav, Department of
Psychiatry, VMCC & Safdarjung
Hospital, New Delhi (through VC).
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
% JUDGMENT
ANOOP KUMAR MENDIRATTA, J (ORAL)
1. A writ petition under Article 226 read with Article 21 of the
Constitution of India and Section 528 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (‘BNSS’) has been preferred by a minor through guardian, for
permission to undergo medical termination of pregnancy with the following
prayers:-
Signature Not Verified
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By:DINESH CHANDRA
Signing Date:07.09.2024
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“i) Direct the Respondent No. 2 to form a board comprising not less
than two registered medical practitioners and submit an opinion qua
the medical termination of pregnancy of the Petitioner as warranted
under Section 3(2)(b) of the Medical Termination of Pregnancy Act,
1971. And;
ii) Further direct the Respondents No.1 & 2 to medically terminate the
pregnancy of the Victim/Petitioner in view of the Explanation No. 2,
Section 3(2) of the Medical Termination of Pregnancy Act, 1970 (as
amended till date). And
iii) Direct Respondent No. 1 to bear all the expenses necessary for the
termination of the pregnancy of the Victim, her medicines, food etc;
and iv) Direct the Respondent No. 2 to preserve the terminal feotus for
the purposes of DNA testing which would be required with reference
to the criminal case which stands registered; and/or
v) Pass any other order(s) as this Hon‟ble Court may deem fit and
proper in the facts and circumstances of the case.”
2. In brief, victim aged about 16 years with gestation period of
approximately 26+5 weeks, is alleged to have been sexually assaulted in
March, 2024 but the pregnancy was only detected on 27.08.2024 when she
complained of pain in the abdomen and was taken to a hospital for treatment.
FIR No.351/2024 under Section 376 IPC and Section 4 of POCSO Act was
accordingly registered at P.S.: Jaitpur on 28.08.2024. Victim alleged that she
was sexually assaulted by one of the tenants in the premises in March, 2024
who had thereafter left the premises.
3. Thereafter, the victim was directed to be kept in the Children’s
Home/SAA/fit facility PCH(G) for a period of short term, by the Child
Welfare Committee. Victim is also stated to have given her written consent
to abort the pregnancy on examination at Safdarjung Hospital.
4. Present petition has been preferred on 04.09.2024 which was taken up
for an urgent hearing on the same day and directions were issued to the
Medical Superintendent, Safdarjung Hospital, New Delhi to get the victim
examined on 05.09.2024 as under:
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
“Considering the facts and circumstances, Medical Superintendent,
Safdarjung Hospital, is directed to get the victim examined on
05.09.2024 at 12:30 PM in accordance with law through a medical
board as provided under MTP Act, and also assess the physical and
mental well-being of the victim, for the purpose of medical termination
of pregnancy. The medical board shall also opine whether termination
of pregnancy can be carried out at this stage without any threat to the
life of minor; since the safety and welfare of the minor is of paramount
importance. Victim/guardian shall also be provided with appropriate
counselling and duly informed about the procedural and medical
aspects including complications, if any, for purpose of having an
informed consent of victim as well as guardian.
The report after medical examination shall be prepared on same day
and forwarded to this Court for consideration on 06.09.2024 at 11:00
A.M.”
5. In response to the same, the report of the Medical Board was received
reflecting that the victim is 26+5 weeks period of gestation with the following
opinion :
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
6. On 06.09.2024, when the matter was taken up in Chamber to confirm
the consent of the victim as well as guardian, the mother of the victim
claimed that she was not fully aware of the medical procedure/process to be
undertaken. It was further noticed by this Court that the name of the victim
had not been anonymised in the OPD slip and report of the Medical Board
did not respond to the specific directions issued vide order dated 04.09.2024.
In view of above, directions were issued to the Medical Board for
clarifications as under and the particulars of the victim were also directed to
be anonymised.
“3. The report overlooks that particulars of the victim need to be
anonymised. Accordingly, Medical Superintendent, Safdarjung
Hospital, New Delhi is directed to ensure that the guidelines in this
regard are followed and the name of the victim is kept confidential and
suitably redacted.
4. On interaction with the victim and her guardian, it appears that
though the victim has expressed her consent for medical termination of
pregnancy but the guardian is not suitably informed of the medical
procedure/process to be undertaken. Further, the report is sketchy
and no observations have been made with reference to specific
directions issued by this Court as referred in para 1 above.
5. Medical Superintendent, Safdarjung Hospital, New Delhi shall
ensure that Medical Board, after taking into consideration the
observations in order dated 04.09.2024 shall also further indicate:
(i) Whether the carrying of pregnancy to the full term would impact
the mental as well as physical health of the minor victim, who is aged
16 years;
(ii) Whether the medical termination of pregnancy can be carried
with gestational period of 26+5 weeks without any threat to the life of
the victim;
(iii) The chances of abdominal surgery or complications, if any,
involved in the process;
(iv) Further, the victim be appropriately counselled and well
informed along with guardian to ensure an informed consent.
Signature Not Verified
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
6. Medical Board shall accordingly further examine the victim and
forward a comprehensive report as directed vide order dated
04.09.2024 and observations made above, in a sealed cover for
consideration on 07.09.2024 before 01:00 PM. Necessary
coordination shall be made by the IO in consultation with Medical
Board.”
7. Considering the fact that the victim is at advance stage of pregnancy
and the case requires to be urgently taken up, the same has been taken up
today i.e. 07.09.2024 (Saturday).
8. The report of the Medical Board received today further clarifies that
carrying the pregnancy to full term is likely to adversely affect the physical
health of the victim as well as her mental health. It has further been opined
that legally induced abortions by trained gynecologists have a risk of
mortality of 10 per 10,000 abortions in pregnancy beyond 26 weeks period
of gestation. Further, the risk of major complications which include severe
hemorrhage, uterine injury non uterine organ injury requiring abdominal
surgery are rare but possible. Victim as well as her mother are stated to have
been duly counselled and informed of the procedural and medical aspects
including possible complications.
9. Sub-section (2) of Section 3 of the Medical Termination of Pregnancy
Act, 1971 was amended vide Amendment Act No.8 of 2021 (hereinafter
referred to as “MTP Act”) and Section 3 thereafter reads as under:
“3. When pregnancies may be terminated by registered medical
practitioners. –(1) Notwithstanding anything contained in the Indian
Penal Code (45 of 1860), a registered medical practitioner shall not be
guilty of any offence under that Code or under any other law for the
time being in force, if any pregnancy is terminated by him in
accordance with the provisions of this Act.
[(2) Subject to the provisions of sub-section (4), a pregnancy
may be terminated by a registered medical practitioner,Signature Not Verified
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
— (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 of the pregnant woman or of grave injury to her physical or mental
health; or
(ii) there is a substantial risk that if the child were born, it
would suffer from any serious physical or mental abnormality.
Explanation 1.–For the purposes of clause (a), where any
pregnancy occurs as a result of failure of any device or method used
by any woman or her partner for the purpose of limiting the number of
children or preventing pregnancy, the anguish caused by such
pregnancy may be presumed to constitute a grave injury to the mental
health of the pregnant woman.
Explanation 2.–For the purposes of clauses (a) and (b),
where any pregnancy is alleged by the pregnant woman to have been
caused by rape, the anguish caused by the pregnancy shall be
presumed to constitute a grave injury to the mental health of the
pregnant woman.
(2A) The norms for the registered medical practitioner whose
opinion is required for termination of pregnancy at different
gestational age shall be such as may be prescribed by rules made
under this Act.
(2B) The provisions of sub-section (2) relating to the length of
the pregnancy shall not apply to the termination of pregnancy by the
medical practitioner where such termination is necessitated by the
diagnosis of any of the substantial foetal abnormalities diagnosed by a
Medical Board.
(2C) Every State Government or Union territory, as the case
may be, shall, by notification in the Official Gazette, constitute a
Board to be called a Medical Board for the purposes of this Act to
exercise such powers and functions as may be prescribed by rules
made under this Act.
(2D) The Medical Board shall consist of the following,
namely:–
(a) a Gynaecologist;
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By:DINESH CHANDRA
Signing Date:07.09.2024
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(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the
Official Gazette by the State Government or Union territory, as the
case may be.]
(3) In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is mentioned in sub-
section (2), account may be taken of the pregnant woman‟s actual or
reasonably foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age
of eighteen years, or, who having attained the age of eighteen years, is
a 1 [mentally ill person], shall be terminated except with the consent in
writing of her guardian.]
(b) Save as otherwise provided in clause (a), no pregnancy
shall be terminated except with the consent of the pregnant woman.”
10. Apparently, in terms of Explanation 2, for the purpose of clause
(a) and (b) of sub-section (2) of Section 3 of the MTP Act, whensoever
any pregnancy is alleged by the pregnant woman to have been caused by
rape, the anguish caused by the pregnancy shall be presumed to
constitute a grave injury to the mental health of the pregnant woman.
11. In X v. Union of India and Another, 2023 SCC OnLine SC 1338,
legal position for termination of pregnancy was summarized as under:
Length of the Requirements for
pregnancy termination
Up to twenty Opinion of one RMP in
weeks terms of Section 3(2)
Between twenty Opinion of two RMPs in
and twenty-four terms of Section 3(2) read
weeks with Rule 3B.
Beyond twenty- If the termination is
four weeks required to save the life of
the pregnant woman, the
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
opinion of one RMP in
terms of Section 5
If there are substantial
foetal abnormalities, with
the approval of the Medical
Board in terms of Section
3(2B) read with Rule
3A(a)(i)
The petitioner therein, a married woman of 27 years already having
two children had sought permission for medical termination of an ongoing
pregnancy, which was initially permitted vide order dated 09.10.2023 by the
Hon’ble Bench of two Judges of the Apex Court, on the ground that
continuing with the pregnancy could seriously imperil the mental health of
the petitioner. However, on 10.10.2023, an e-mail received from a Member
of the Medical Board, AIIMS was placed, wherein it was observed that the
foetus had a strong chance of survival and sought directions that foetal
heartbeat ought to be stopped. Further, if the foetal heartbeat would not be
stopped, the baby would be kept in an intensive care and there was a high
possibility of immediate and long term physical and mental disability.
Following a split verdict, the matter was considered by a Bench of
three Judges of the Hon’ble Apex Court. Noticing that the length of
pregnancy had crossed over 24 weeks, which was approximately 26 weeks
and 05 days at the time of hearing, the Hon’ble Bench declined the
termination of pregnancy for the reasons recorded in para 29 to 33 as under:
“29. As noticed above, the length of the pregnancy has crossed twenty-
four weeks. It is now approximately twenty-six weeks and five days. A
medical termination of the pregnancy cannot be permitted for the
following reasons:
a. Having crossed the statutory limit of twenty-four weeks, the
requirements in either of Section 3(2B) or Section 5 must be met;
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
b. There are no “substantial foetal abnormalities” diagnosed by a
Medical Board in this case, in terms of Section 3(2B). This Court
called for a second medical report from AIIMS to ensure that the facts
of the case were accurately placed before it and no foetal abnormality
was detected; and
c. Neither of the two reports submitted by the Medical Boards
indicates that a termination is immediately necessary to save the life of
the petitioner, in terms of Section 5.
30. Under Article 142 of the Constitution, this Court has the power to
do complete justice. However, this power may not be attracted in every
case. If a medical termination were to be conducted at this stage, the
doctors would be faced with a viable foetus. One of the options before
this Court, which the email from AIIMS has flagged, is for it to direct
the doctors to stop the heartbeat. This Court is averse to issuing a
direction of this nature for the reasons recorded in the preceding
paragraph. The petitioner, too, did not wish for this Court to issue
such a direction. This was communicated by her to the court during the
course of the hearing. In the absence of a direction to stop the
heartbeat, the viable foetus would be faced with a significant risk of
lifelong physical and mental disabilities. The reports submitted by the
Medical Board speak for themselves.
31. For these reasons, we do not accede to the prayer for the medical
termination of the pregnancy.
32. The delivery will be conducted by AIIMS at the appropriate time.
The Union Government has undertaken to pay all the medical costs for
the delivery and incidental to it.
33. Should the petitioner be inclined to give the child up for adoption,
the Union Government has stated through the submission of the ASG
that they shall ensure that this process takes place at the earliest, and
in a smooth fashion. Needless to say, the decision of whether to give
the child up for adoption is entirely that of the parents.”
12. In A (Mother of X) v. State of Maharashtra, Special Leave to
Appeal (C) No.9163/2024 decided on 22.04.2024, Hon’ble two Judge
Bench of the Apex Court initially permitted the medical termination of
pregnancy, of a minor aged about 14 years, wherein the period of gestation
was 25 weeks at the time of revealing of pregnancy on 20.03.2024 and about
27/28 weeks on 03.04.2024 when the medical termination of pregnancy was
declined by the High Court of Judicature at Bombay. The directions for
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
termination of pregnancy were issued by the Hon’ble Apex Court after
adverting to X v. Union of India and Another, 2023 SCC OnLine SC 1338
and taking into consideration that the minor was unaware of the fact that she
was pregnant until a very late stage. It was further observed that the guiding
parameters shall be delivered separately.
13. Vide judgment dated 29.04.2024 in Civil Appeal No.5194 of 2024- A
(Mother of X) v. State of Maharashtra delivered by the Hon’ble three Judge
Bench, directions for terminating the pregnancy were recalled noticing the
further communication by the hospital that the victim had subsequently
desired that pregnancy be taken to term which was confirmed during course
of proceedings. The observations of Hon’ble Apex Court in para 25 to 28
and 31 to 34 including conclusions in para 37, highlight the role of RMP and
Medical Board under the MTP Act along with primacy of the pregnant
person’s consent in abortion, and are apt to be noticed:
“25. From a perusal of the MTP Act, its statement of object and
reasons as well as the recommendation of the Shah Committee which
examined the issue of liberalising abortion laws in India (Report of the
Committee to Study the Question of Legislation of Abortion, Ministry
of Health and Family Planning, Government of India, dated December
1966), two clear postulates emerge as to the legislative intent of the
MTP Act. Firstly, the health of the woman is paramount. This includes
the risk avoided from the woman not availing unsafe and illegal
methods of abortion. Secondly, disallowing termination does not stop
abortions, it only stops safe and accessible abortions. The opinion of
the RMP and the medical board must balance the legislative mandate
of the MTP Act and the fundamental right of the pregnant person
seeking a termination of the pregnancy. However, as noticed above
and by this Court in X v. State (NCT of Delhi), (2023) 9 SCC 433 the
fear of prosecution among RMPs acts as a barrier for pregnant people
in accessing safe abortion. Further, since the MTP Act only allows
abortion beyond twenty four weeks if the fetus is diagnosed with
substantial abnormalities, the medical board opines against
termination of pregnancy merely by stating that the threshold under
Section 3(2-B) of the MTP Act is not satisfied. The clarificatory reportSignature Not Verified
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
dated 3 April 2024 fell into this error by denying termination on the
ground that the 9 Report of the Committee to Study the Question of
Legislation of Abortion, Ministry of Health and Family Planning,
Government of India, dated December 1966. 10 (2023) 9 SCC 433
Page 15 of 22 gestational age of the fetus is above twenty-four weeks
and there are no congenital abnormalities in the fetus.
26. The report failed to form an opinion on the impact of the
pregnancy on the physical and mental health of the pregnant person. If
a pregnant person meets the condition under Section 3(2-B) of the
MTP Act then there would be no need for any permission by the courts.
Therefore, whenever a pregnant person approaches the High Court or
this Court, it is imperative for the medical board to opine on the
physical and mental health of the pregnant person. This court in XYZ
v. State of Gujarat, 2023 SCC OnLine SC 1573 held that the medical
board or the High Court cannot refuse abortion merely on the ground
that the gestational age of the pregnancy is above the statutory
prescription. In light of the peculiar circumstances of that case where
the pregnancy was detrimental to the physical and mental health of the
pregnant person, this Court held that:
“10. We find that in the absence of even noticing the aforesaid
portion of the report, the High Court was not right in simply
holding that “the age of the foetus is almost 27 weeks as on
17.08.2023 and considering the statements made by the learned
advocate for the petitioner-victim and the averments made in the
application the petition for medical termination of pregnancy stands
rejected”, which, in our view is ex facie contradictory…
…
19. The whole object of preferring a Writ Petition under Article 226
of the Constitution of India is to engage with the extraordinary
discretionary jurisdiction of the High Court in exercise of its
constitutional power. Such a power is vested with the constitutional
courts and discretion has to be exercised judiciously and having
regard to the facts of the case and by taking into consideration the
relevant facts while leaving out irrelevant considerations and not
vice versa.”
27. The powers vested under the Constitution in the High Court and
this Court allow them to enforce fundamental rights guaranteed under
Part III of the Constitution. When a person approaches the court for
permission to terminate a pregnancy, the courts apply their mind to the
case and make a decision to protect the physical and mental health of
the pregnant person. In doing so the court relies on the opinion of the
medical board constituted under the MTP Act for their medical
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
expertise. The court would thereafter apply their judicial mind to the
opinion of the medical board. Therefore, the medical board cannot
merely state that the grounds under Section 3(2-B) of the MTP Act are
not met. The exercise of the jurisdiction of the courts would be affected
if they did not have the advantage of the medical opinion of the board
as to the risk involved to the physical and mental health of the
pregnant person. Therefore, a medical board must examine the
pregnant person and opine on the aspect of the risk to their physical
and mental health.
28. The MTP Act has removed the restriction on the length of the
pregnancy for termination in only two instances. Section 5 of the MTP
Act prescribes that a pregnancy may be terminated, regardless of the
gestational age, if the medical practitioner is of the opinion formed in
good faith that the termination is immediately necessary to save the life
of the pregnant person. Section 3(2-B) of the Act stipulates that no
limit shall apply on the length of the pregnancy for terminating a fetus
with substantial abnormalities. The legislation has made a value
judgment in Section 3(2-B) of the Act, that a substantially abnormal
fetus would be more injurious to the mental and physical health of a
woman than any other circumstance. In this case, the circumstance
against which the provision is comparable is rape of a minor. To deny
the same enabling provision of the law would appear prima facie
unreasonable and arbitrary. The value judgment of the legislation does
not appear to be based on scientific parameters but rather on a notion
that a substantially abnormal fetus will inflict the most aggravated
form of injury to the pregnant person. This formed the basis for this
Court to exercise its powers and allow the termination of pregnancy in
its order dated 22 April 2024. The provision is arguably suspect on the
ground that it unreasonably alters the autonomy of a person by
classifying a substantially abnormal fetus differently than instances
such as incest or rape. This issue may be examined in an appropriate
proceeding should it become necessary.
29. xxxxxxxxxx
30. xxxxxxxxxx
31. This highlights the need for giving primacy to the fundamental
rights to reproductive autonomy, dignity and privacy of the pregnant
person by the medical board and the courts. The delays caused by a
change in the opinion of the medical board or the procedures of the
court must not frustrate the fundamental rights of pregnant people. We
therefore hold that the medical board evaluating a pregnant person
with a gestational age above twenty-four weeks must opine on the
physical and mental health of the person by furnishing full details to
the court.
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By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
Primacy of the pregnant person’s consent in abortion
32. As noted above, the order of this court allowing „X‟ to terminate
her pregnancy is recalled. This decision is made in light of the
decisional and bodily autonomy of the pregnant person and her
parents. The MTP Act does not allow any interference with the
personal choice of a pregnant person in terms of proceeding with the
termination. The Act or indeed the jurisprudence around abortion
developed by the courts leave no scope for interference by the family
or the partner of a pregnant person in matters of reproductive choice.
33. As stated above, the role of the RMPs and the medical board must
be in a manner which allows the pregnant person to freely exercise
their choice. In the present case, the guardians of „X‟, namely her
parents, have also consented for taking the pregnancy to term. This is
permissible as „X‟ is a minor and the consent of the guardian is
prescribed under Section 3(4)(a) of the MTP Act.
34. In Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, a
three-judge Bench of this Court has held that the right to make
reproductive choices is a facet of Article 21 of the Constitution.
Further, the consent of the pregnant person in matters of reproductive
choices and abortion is paramount. The purport of this Court‟s
decision in Suchita Srivastava (supra) was to protect the right to
abortion on a firm footing as an intrinsic element of the fundamental
rights to privacy, dignity and bodily integrity as well as to reaffirm that
matters of sexual and reproductive choices belong to the individual
alone. In rejecting the State‟s jurisdiction as the parens patriae of the
pregnant person, this Court held that no entity, even if it is 14 (2009) 9
SCC 1 Page 20 of 22 the State, can speak on behalf of a pregnant
person and usurp her consent. The choice to continue pregnancy to
term, regardless of the court having allowed termination of the
pregnancy, belongs to the individual alone.
35. XXXXXXXXXXXXXX
Conclusion
36. XXXXXXXXXXXXX
37. In light of the issues which arose before this Court we record our
conclusions as follows:
(i) The MTP Act protects the RMP and the medical boards when they
form an opinion in good faith as to the termination of pregnancy;
(ii) The medical board, in forming its opinion on the termination of
pregnancies must not restrict itself to the criteria under Section 3(2-B)
of the MTP Act but must also evaluate the physical and emotional well
being of the pregnant person in terms of the judgment;
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(iii) When issuing a clarificatory opinion the medical board must
provide sound and cogent reasons for any change in opinion and
circumstances; and
(iv) The consent of a pregnant person in decisions of reproductive
autonomy and termination of pregnancy is paramount. In case there is
a divergence in the opinion of a pregnant person and her guardian, the
opinion of the minor or mentally ill pregnant person must be taken into
consideration as an important aspect in enabling the court to arrive at
a just conclusion.”
14. Reverting back to the facts of the case, this Court is of the considered
opinion that the suffering of the victim who is aged about 16 years would be
compounded if she is forced to continue the pregnancy at a tender age.
Apart from above, victim is bound to face social stigma which may not
permit the scars left by defilement of her body to heal. As noticed in the
judgments referred to above, victim has the ultimate right whether to give
birth to the conceived child or to terminate the pregnancy and her opinion
has to be given primacy. This Court is cautious of the fact that though the
pregnancy is of 26+5 weeks of gestation but the risks associated with
termination of pregnancy is not higher than the risk of delivery at full term of
pregnancy. Merely because there is no foetal abnormality, it cannot be held
that the reproductive choice of the victim may be curtailed. It may be
underlined that unwanted pregnancy constitutes a grave injury to the mental
health of the rape survivor/victim, as also confirmed in the opinion rendered
by the Medical Board.
15. For the foregoing reasons, petition is allowed with the following
directions:
(i) Victim is permitted to undergo the procedure for medical
termination of pregnancy immediately at Safdarjung Hospital,
New Delhi as desired by her, under the supervision of theSignature Not Verified
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By:DINESH CHANDRA
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Specialists from the concerned disciplines;
(ii) Though the procedure to be undertaken for the purpose of
medical termination of pregnancy has been duly informed to the
victim and she has given an informed consent to the same along
with guardian, but if at any stage the victim seeks to change her
mind, the same shall be duly given consideration by the
concerned medical team;
(iii) In case there is any danger to life or well being of the victim, the
medical team shall have the discretion to take appropriate
decision as deemed suitable to save the life of the victim;
(iv) The hospital is further directed to preserve necessary samples
for the purpose of DNA testing from the foetus which may be
required for the purpose of pending criminal proceedings by the
Investigating Agency.
(v) The State is also directed to bear the medical expenses as well
as expenses towards special diet of the victim and take further
necessary steps in the interest and welfare of the victim.
16. The medical reports which have been received on record shall be
placed in a sealed cover by the registry, and if required may be released to
the concerned hospital under the signatures of the counsels, after retaining
copy thereof on record.
17. Medical Superintendent, Safdarjung Hospital, New Delhi is
accordingly directed to immediately take necessary steps for compliance of
directions for medical termination of pregnancy of minor victim.
Signature Not Verified
Digitally Signed
W.P.(CRL) 2728/2024 Page 15 of 16
By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18
18. Since during the course of proceedings, it has come to the notice of
this Court that the name of victim appears to have been inadvertently entered
for the purpose of examination in the OPD slip, which has since been
directed to be redacted/anonymised, Director General, Health Services,
Ministry of Health and Family Welfare, Government of India is directed to
issue suitable instructions to all the concerned hospitals to ensure that
identity of victim in such cases is not revealed and the record is kept
confidential. Compliance report shall be forwarded within four weeks of
receipt of this order.
19. A copy of this order be given dasti under signatures of Court
Master/PS to learned counsel for the respondents and be also forwarded to
Director General, Health Services, Ministry of Health and Family Welfare,
Government of India for compliance.
ANOOP KUMAR MENDIRATTA, J
SEPTEMBER 07, 2024/sd
Signature Not Verified
Digitally Signed
W.P.(CRL) 2728/2024 Page 16 of 16
By:DINESH CHANDRA
Signing Date:07.09.2024
18:32:18