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Synopsis

The Calcutta High Court on Wednesday denied the permission to terminate the pregnancy of a girl aged 12 years who is a rape and sexual assault survivor on the ground that the complications may go up to maternal death.

A single judge bench of Justice Aniruddha Roy stated that there was the risk of massive complications even the same could go up to maternal death.

"This Court is stuck in this situation because the minor girl's life is paramount at this point. If, in the end, the minor girl is forced to give up her life in order to terminate her unwilling pregnancy at this advanced stage, then the most important question here is as that whose personal life, liberty and dignity shall be protected as guaranteed under Article 21 of the Constitution," the bench said.

A mother had moved to Calcutta High Court under article 226 of the Indian Constitution seeking permission to terminate pregnancy for her minor girl who was carrying 25 weeks of twin live fetuses. The plea sought termination of pregnancy under Medical Termination Act, 2021 in the North Bengal Medical College & Hospital or any other hospital.

On the basis of the complaint filed on March 9, 2023, by the mother, an FIR had been registered with Bagdogra Police Station under Section 6 of POCSO Act.

The victim had been admitted to the North Bengal Medical College and Hospital, Siliguri. According to a report from the Zonal Medical Board, North Bengal Medical College, it was clear that she had been carrying twin live fetuses. As on March 20, 2023, the age of the fetuses was 25 weeks and 25 weeks one day.

On April 5, 2023, the Zonal Medical Board filed a report before the present bench which stated, "As twin babies achieve a period of viability and not associated with any congenital malformation and any pregnancy-related complication except the young age that is 12 years, so termination of this pregnancy cannot be done under prevailing MTP Act 2021. The termination can be carried out on the basis of your Honourable Court order. However, termination of this pregnancy at this age of gestation carries the risk of massive haemorrhage, infection, sepsis, surgery & Anaesthetic risks even maternal death. Furthermore, delivery of live babies is possible but may require resuscitation. So the Honourable court may order whether to resuscitate babies or not and send material for Forensic testing.”

After reviewing the report filed by the medical board, the bench opined that the continuation of an unwilling or forceful pregnancy would cause severe mental pressure and trauma to the mother. The sufferings of the minor girl including the sufferings of her twin children whose compromised existence would be inextricably linked with the minor girl's mother, the bench observed.

The bench said, “The valuable right of the mother to lead a normal healthy life - post-delivery and not a compromised existence is not possible without the State coming forward to address these critical issues and unburdening or at least alleviate her sufferings. At this point, the state should take the role for the wellbeing of the minor girl's mother and that of her twin children.”

“No fetus can grow up naturally if the life of the mother is not supported and smooth sailing,” the bench observed.

Thus, the bench dismissed the writ petition.

Lastly, the bench also directed the petitioner to approach District Magistrate or appropriate authority under the Juvenile Justice( Care and Protection of Children) Act 2015 in case she or her family members are incapable to maintain the twins or in case there is nothing related to the adoption of them.

Case Title: Y vs. State of West Bengal & Ors.

Statute: Article 21 of the Indian Constitution, Section 6 of POCSO & Medical Termination Act.