Introduction:

In a landmark decision, the Telangana High Court permitted a 12-year-old rape victim to terminate her 26-week pregnancy. This ruling came in response to a writ petition filed by Chakali Bhagyamma, the mother of the victim, against the Superintendent of Gandhi Hospital, Hyderabad, who had initially refused to perform the medical termination of pregnancy.

Arguments of Both Sides:

Vasudha Nagaraj, counsel for the petitioner, argued that the refusal to terminate the pregnancy was a violation of the victim’s fundamental rights under Article 21 of the Indian Constitution, which guarantees the right to personal liberty and privacy. Nagaraj cited the recent Supreme Court judgment in A (Mother of X) v. State of Maharashtra (2024), emphasizing that the consent of the victim is paramount in matters of reproductive choice and abortion. The counsel argued that forcing the young victim to continue the pregnancy would result in severe mental anguish and potential physical harm. Additionally, the counsel highlighted the victim’s young age and the circumstances of the pregnancy, which resulted from repeated sexual assault by Vijay Kumar and four of his friends. Nagaraj pointed out that continuing the pregnancy would subject the victim to social stigma and exacerbate her trauma.

The Government Pleader for Medical Health & Family Welfare, representing the Superintendent of Gandhi Hospital, argued that the refusal to terminate the pregnancy was based on the Medical Termination of Pregnancy (Amendment) Act, 2021, which sets a 24-week limit for such procedures. The counsel contended that the risks associated with terminating a 26-week pregnancy were significant and included cervical trauma, uterine perforation, hemorrhage, and infection, as stated in the Medical Board’s report. The respondents maintained that the law had to be followed strictly to ensure the safety and well-being of the victim.

Court’s Judgment:

Justice B. Vijaysen Reddy, delivering the judgment, expressed deep concern over the situation, stating, “…there cannot be any doubt that the victim girl would be subjected to mental trauma if she is forced to continue pregnancy against her wish; the mother of the victim girl is stated to be a domestic worker. If the victim girl is not allowed to terminate her pregnancy, she has to continue pregnancy until the child is delivered and may have to face not only physical and mental health issues but also social stigma. It has been recognized by the various Courts including the Hon’ble Supreme Court, as discussed above, that right to choice of a pregnant woman to continue pregnancy or terminate it is one of the facets of fundamental rights guaranteed under Article 21 of the Constitution of India.”

The court directed the hospital to constitute a Medical Board to examine the victim and provide a report on the feasibility of terminating the pregnancy. The Medical Board’s report, submitted on July 5, 2024, acknowledged the risks but affirmed that the procedure could be carried out. Justice Reddy noted that while the Medical Termination of Pregnancy (Amendment) Act, 2021, sets a 24-week limit, there are exceptions, particularly in cases involving mental trauma from pregnancies resulting from rape, as recognized under Explanation 2 of Section 3(2) of the Act.

In its deliberations, the court balanced several crucial factors: the victim’s age, the circumstances of the pregnancy, the potential risks of the procedure as outlined by the Medical Board, and the fundamental rights of the victim. The court reasoned that continuing the pregnancy would not only pose physical and mental health risks but also subject the minor to severe social stigma.

“If the victim girl or her mother gives consent for termination of pregnancy through medical procedure, respondent No.4 – the Superintendent, Gandhi Hospital, Hyderabad, shall forthwith admit the victim girl, conduct medical examination and by taking all necessary precautions, terminate pregnancy of victim girl medically or through surgical procedure as may be required, within 48 hours,” the court ordered. The court further directed the hospital to preserve fetal samples for DNA testing, recognizing their importance in the ongoing criminal investigation.

Lastly, the court directed the Legal Services Authority, High Court for the State of Telangana to assist the victim in applying for and obtaining adequate compensation, emphasizing the need for timely and appropriate support.