Assam: Minor gang-rape victim case: HC orders termination of pregnancy by expert doctors

Staff Reporter

Guwahati: Pursuant to a direction issued by the Gauhati High Court that the District Level Committee, including the Chairman, Child Welfare Committee of the Tinsukia District, were required to have the minor gang-rape victim ‘X’ examined by the Medical Board and to report as to whether it would be appropriate to have the unwanted pregnancy terminated considering the risk involved in such a procedure, a report was submitted by the Child Welfare Committee, Tinsukia, along with a report of the Joint Director of Health Services-cum-Member Secretary, District Health Society, Tinsukia, dated December 7, 2024, in a sealed cover.

From the extracted report, the division bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund took note of the fact that as per the opinion of the Medical Board, the victim ‘X’ is reportedly fit to undergo any obstetrical procedure. However, in view of the fact that under the Medical Termination of Pregnancy Act, 1971, termination of pregnancy of more than 24 weeks is not allowed, no opinion was expressed on the termination of unwanted pregnancy.

In this connection, the bench also noted that as per the opinion expressed in the clinical examination report, the duration of pregnancy appears to be 26 weeks, and as per the ultrasound report on December 7, 2024, the duration of pregnancy is calculated at 26 weeks 1 day, with a possibility of variation of (+/-) 14 days.

The HC’s Amicus Curiae submitted that there is a certain degree of risk involved in every procedure for medical termination, and he pointed out that the estimation of the duration of pregnancy here is 26 weeks. Therefore, he urged that although the victim is stated to be fit to undergo any obstetrical procedure, if the court allows such a procedure to be adopted, the medical team should be so constituted that experts in the field should be requested to do the procedure.

The senior government advocate submitted that in view of the prescription provided in the Medical Termination of Pregnancy Act, 1971, he is unable to concede to the prayer made by the Amicus Curiae for termination of pregnancy. However, he has submitted that as per the clinical examination report, there is apparently no complication reported.

The bench is conscious of the fact that the victim girl is a minor aged about 15 years now, and she is presently carrying an unwanted pregnancy of more than 26 weeks. It is also conscious of the fact that at this stage, there is a threat to the life of the victim ‘X’ if termination of pregnancy is carried out at this stage. However, the risk factor appears to be the same at the present stage as well as the risk that would be involved at the time of delivery at full term of pregnancy.

As the Supreme Court of India issued an order by invoking the provisions of Article 142 of the Constitution of India, the bench is of the considered opinion that it would not be powerless under Article 226 of the Constitution of India for ordering the medical termination of pregnancy.

Moreover, as the medical termination of pregnancy would be carried out in terms of the order of the HC, it goes without saying that the penal provision of the Medical Termination of Pregnancy Act, 1971, and rules framed thereunder would not be attracted.

In view of the nature of urgency, considering the tender age of the victim ‘X’ and the length of pregnancy, 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 the best interest of the victim ‘X’ in view of her minority.

Accordingly, the bench issued a direction requesting the Medical Board and the Child Welfare Committee, District Tinsukia, to immediately constitute a team of expert medical practitioners in the field for undertaking the medical termination of pregnancy of the minor ‘X.’ That the said Medical Board is also to examine the facilities available in the Government/Civil Hospital at Tinsukia or any other private hospital or public nursing home at Tinsukia for undertaking the said procedure.

It is also provided that in the event the Medical Board does not find the facilities in the district of Tinsukia to be adequate, the State would make arrangements for the transportation of the minor victim ‘X’ to the nearest Dibrugarh Medical College and Hospital as well as for her return home after the completion of the procedure. Also, the State would bear all the expenses in connection with the procedure and all medical expenses required in the interest of the safety and welfare of the minor victim. The State shall also provide and extend all facilities for further medical care, post termination, if any, that are required.

The district authorities are also directed to take the help of a counsellor for the minor so as to assist the minor in the mental preparation to undergo the procedure as well as post-counselling, if so required.

The matter has been listed on December 19, 2024, for the production of a status report.

 Also read: Assam: Gauhati HC Allows 3 Days for Medical Exam of Pregnant Minor Gang-Rape Victim

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