High Court of Madras

Marimuthu v. Inspector of Police, Ayakudi Police Station, Dindigul District and Ors..

MANU/TN/2236/2016

19.09.2016

Civil

Considering right to life, foetus cannot be ordered to be aborted against wishes of victim girl

Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus, directing the 1st respondent to refer the daughter of the petitioner before the respondents 2 & 3 and further direct the respondents 2 & 3 to act as per Section 3 of the Medical Termination of Pregnancy Act to abort the pregnancy of the daughter of the petitioner forthwith. Contention of father is that, continuance of pregnancy would cause a risk of injury to health of girl, as pregnancy is on account of rape committed on her. Such unwanted pregnancy would constitute a grave injury to mental health of daughter and therefore, it should be ordered to be aborted. But contention of minor daughter is that, pregnancy was not out of coercion, but out of voluntary sexual intercourse between her and 5th respondent and she has total and complete pleasure in carrying foetus and therefore, there should be no order for abortion.

Section 3 of the Medical Termination of Pregnancy Act, 1971 is an enabling provision / saving provision to save the registered medical practitioner from the purview of the Indian Penal Code. Termination of pregnancy under the provisions of the Act is not the rule, but it is only an exception. Under Section 3(2), there can be no termination of pregnancy, if the length of pregnancy had exceeded 20 weeks. Only exception is found in Section 5 under which pregnancy can be terminated to save the life of the pregnant woman, if the opinion of the medical practitioner is formed in good faith. The entire scheme of the Act show that the provisions are intended to save the pregnant woman. So far as the medical practitioners are concerned, if they find that the pregnant woman happens to be a minor, they must take care to get the consent of the guardian in writing.

At the time of conception, no doubt, the petitioner's daughter was below 18 years of age, but she had attained 18 at the time of hearing by this Court. This is a case where, not even a forced pregnancy or unwanted pregnancy is alleged by the victim girl. The provision under Section 4(a)(b) should be interpreted having regard to the objective of the Medical Termination of Pregnancy Act and having regard to the scheme of that, it can never be interpreted as dispensing with the consent of the minor in case the minor wants to retain the pregnancy.

Person responsible for pregnancy submitted that he had already married the victim girl and produced the photograph in support of the same. Under provisions of Prohibition of Child Marriage Act, 2006, marriage is a void marriage, only if the circumstances prescribed under Sections 12 (a) to (c) exist. As per Section 12, Marriage of a minor child to be void in certain circumstances - Where a child, being a minor- (a) is taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.” When marriage itself is not shown to be a void marriage, then request of father to terminate pregnancy of daughter without consent / concurrence of daughter cannot be permitted.

Right to autonomy to the woman and to decide what to do with their own bodies, including whether or not to get pregnant, and if pregnant whether to retain pregnancy and to delivery child, i.e. right to motherhood is towards their empowerment and it is in accordance with International Covenant on Human Rights. Considering right to life, which includes right to beget a life and right to dignity, right to autonomy and bodily integrity, foetus cannot be ordered to be aborted against wishes of victim girl.

Whether foetus carried is a pain or pleasure is subjective opinion of minor girl and girl has formed an opinion that it is total delight, when India has ratified conventions on rights of Child and when consent of victim girl cannot be dispensed with while aborting pregnancy, this Court has no option except to decline permission to terminate pregnancy, leaving it open the question, who is to bear the cross.

Relevant

Section 3 of Medical Termination of Pregnancy Act, 1971, Section 12 of Prohibition of Child Marriage Act, 2006

Tags : Abortion Consent Minor

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