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Synopsis

A division bench of the Bombay High Court at Aurangabad comprising Justice Ravindra Gauge and Justice Y.G Khobragde recently denied termination of pregnancy to a 15-year-old rape victim after the experts opined that a live baby would be born.

The high court was hearing a plea filed by the biological mother of the 15-year-old who had gone missing in February 2023. The girl was taken away by the accused to Jodhpur as the accused promised to marry her. Both of them lived together in Jodhpur. The victim then conceived a child which had entered the 28th week. 

Before filing the petition before the high court, the Government Medical College and Hospital, Jalgaon, Department of Radiology, examined the girl on 30.05.2023 and found out that she was pregnant with 25 weeks 3 days.

The counsel appearing for the mother submitted that the girl was subjected to a physical crime and therefore, she would suffer from trauma, agony and physical hardships. Therefore, even if a live child is born, her daughter should be subjected to the said medical termination of pregnancy procedure.

The high court was of the opinion that the future and development of the child needed to be considered and the petitioner could be allowed to give the child to an orphanage. 

"The further issue would be that if in any case the child is going to be born and the natural delivery is just 12 weeks away, in the backdrop of the girl having accompanied the male and having lived with him away from her mother for a couple of weeks until they were apprehended, we are of the view that the future of the health of the child and its physical and mental development needs to be considered at this stage. When a live child is going to be born even today, we might as well let the child be born after 12 weeks and under medical advise, if the petitioner desires to give away the child to an orphanage, she shall have the liberty of doing so," the high court observed

The Assistant Government Pleader submitted that certain social organizations also take care of such ‘would be’ mothers like "Shaskiya Vatsalya Mahila Vastigruh" (Mother Home), near Ashok Stambh, Gangapur Road, Nashik, or the Government’s Savitribai Mahila Rajyagruha at Aurangabad, where the girl can be lodged.

The bench then directed the biological mother and the 'would be' mother to opt for such shelter homes and also directed the authorities to ensure that a female Psychologist is provided to take care of the would-be mother.

The bench further directed the organisation to give proper assistance to the 'would be' mother.

"We also direct the said organization to ensure that proper medical assistance is provided to the would be mother and she shall be given every assistance to be admitted in the hospital at the right time when the delivery is to occur. Subject to following the medical protocol, if the would be mother desires to hand over the child in adoption, she would be at liberty by following due procedure laid down in law. We leave option open to the Petitioner to choose a shelter home, either at Nashik or the Government’s Savitribai Mahila Rajyagruha at Aurangabad," the bench directed

The high court also noted that the District Officer, Women and Child Development Department at Nashik or at Aurangabad, would assist the 'would be' mother and interact with her while monitoring her condition. 

The division bench allowed the 'would be' mother to avail all other facilities other than medical assistance.

"Besides medical assistance, all other facilities as are normally made available to the inmates of the Mother Home and especially to the pregnant women, would be extended to her. So also, the assistance of a counsellor/psychiatrist/ motivator, would also be extended to her in order to ensure that she is at peace and is in a stable physical and mental condition," the bench noted.

Case Title: XYZ vs State of Maharashtra & Anr