Delhi HC allows minor to terminate pregnancy, asks police to keep report confidential

Updated on Sep 22, 2022 11:41 PM IST

The Delhi high court has allowed a minor to terminate her pregnancy of over 18 weeks out of a “consensual relationship”, while clarifying that even though the matter is reported to the police, any report registered by them must be kept in a sealed cover and would be subject to the outcome of the petition

Delhi HC allows minor to terminate pregnancy, asks police to keep report confidential
Delhi HC allows minor to terminate pregnancy, asks police to keep report confidential

The Delhi high court has allowed a minor to terminate her pregnancy of over 18 weeks out of a “consensual relationship”, while clarifying that even though the matter is reported to the police, any report registered by them must be kept in a sealed cover and would be subject to the outcome of the petition.

“The Respondents (Centre) are free to proceed ahead in accordance with law, but any report, which is registered by the police, must be kept in a sealed cover and it will be subject to the final outcome of the instant writ petition,” a bench of chief justice Satish Chandra Sharma and justice Subramonium Prasad said in an interim order on Tuesday, which was released on Thursday.

Under the Medical Termination of Pregnancy (MTP) Act, 1971, there is no impediment for allowing a minor to terminate her pregnancy. However, section 19(1) of the Prevention of Children from Sexual Offences (POCSO) Act, 2012, mandates that the doctor has to inform the local police before the termination of the pregnancy of a minor.

The petitioner-mother, through advocate Amit Mishra, had sought the termination of the pregnancy without reporting the case to police, claiming that it would cause social stigma. She also challenged section 19(1) of POCSO, saying that it was ultra vires (beyond legal power or authority) of the Constitution.

In its interim order, the court said that it is necessary to prevent the minor from undergoing the trauma of going ahead with an unwanted pregnancy, which will inevitably subject her to grave physical and mental injury.

The court also agreed with the Centre’s contention that instead of entering into the debate regarding harmonising between the MTP Act and the POCSO Act, the welfare of the girl is to be taken as paramount.

“This court is aware that the interim relief being granted amounts to the final relief that is being sought by way of the instant petition, however, in the facts of this case, this court is of the opinion that the termination of the pregnancy of the unmarried minor daughter of the petitioner needs to be conducted at the earliest so as to not render the instant petition infructuous,” the court said, reserving its order after the Union government had supported the abortion and said that the welfare of the girl was paramount.

The matter would now be heard on January 18, when the court will adjudicate on the Constitutional validity of section 19(1) of the POCSO Act.

In the plea, the petitioner-mother had also claimed that hospitals have refused to terminate the pregnancy without informing the police, and added that the family does not want to report the matter “out of shame and humiliation”.

If the matter is reported to the police, the petitioner said, they are duty bound to register a rape first information report (FIR) against the partner/boy as the consent of the minor girl does not matter. The moment the FIR is registered, the prosecution will come into the picture and record the victim’s statement, thereby making her the prime witness in the case, the petition argued.

The plea had said that the minor will not be able to raise the child on account of her tender age, if the termination of pregnancy is not allowed.

Additional solicitor general (ASG) Aishwariya Bhati, for the Union government, submitted that while a valid question of law had arisen, the Acts must be read harmoniously, keeping the interest of the girl in mind.

Saying that the welfare of the child is paramount, Bhati had said that time is the essence in the present case considering that the girl is over 18 weeks pregnant.

The Centre proposed that while the abortion of the 16-year-old girl could be permitted as an interim measure, the mandate of informing it to the police could be followed and the information could be kept confidential till the pendency of the petition.

In its interim order, the court said that it is necessary to prevent the minor from undergoing the trauma of going ahead with an unwanted pregnancy, which will inevitably subject her to grave physical and mental injury.

The court also agreed with the Centre’s contention that instead of entering into the debate regarding harmonising between the MTP Act and the POCSO Act, the welfare of the girl is to be taken as paramount.

“This court is aware that the interim relief being granted amounts to the final relief that is being sought by way of the instant petition, however, in the facts of this case, this court is of the opinion that the termination of the pregnancy of the unmarried minor daughter of the petitioner needs to be conducted at the earliest so as to not render the instant petition infructuous,” the court said.

The bench directed the Union government to ensure that the entire abortion process is carried out at AIIMS at their expense.

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    Reports from the Delhi High Court and stories on legal developments in the city. Avid mountain lover, cooking and playing with birds 🐦 when not at work

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