1. 19-Year-old getting pregnant under consensual sex not permitted to abort
The issue for consideration before the Gwalior bench of Madhya Pradesh High Court was on granting permission for medical termination of pregnancy to the female petitioner indulging in undisputed fact of ‘consensual sex’. The court recently declined to allow medical termination of pregnancy of a 19-year-old girl, observing that she is mature enough to know consensual sex without protection. The girl had sought permission to abort her pregnancy, alleging that the boy, whom she loved, raped her on the pretext of marriage.
2. The Age of Consent
The boy had promised to marry the prosecutrix and on this pretext, he was having a physical relationship with her for the last 4-5 years and the girl is aged 19 years. The provisions in the POCSO Act, 2012 are covering different forms of child sexual abuse. The stipulation that doctors, hospitals, and all private citizens, including school personnel and parents, were mandatory to report the sexual activity of children and adolescents to the police, has effectively criminalised all sexual activity under the age of 18. The POCSO Act also increased the age of consent for sexual activity (referred hereafter as “age of consent”) from 16 years to 18 years for children of all genders.
3. The Medical Termination of Pregnancy 1971 Act
As per Section 3 of the Medical Termination of Pregnancy Act, 1971, permission for termination of pregnancy can be given where the pregnancy does not exceed 12 weeks but does not exceed 20 weeks and two registered Medical Practitioners are of the opinion that the continuance of the pregnancy would involve a risk to the life of a pregnant woman or a grave injury to her physical or mental health or there is a substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. By way of explanation (1) where the pregnancy is caused by rape, the anguish shall be presumed to constitute a grave injury to mental health. The new Act however allows the termination of pregnancy up to 20 to 24 weeks on the advice of two doctors.
4. Background of Facts
The sonography report showed that the petitioner is carrying the pregnancy of 12 weeks and 6 days on 29.07.2021. Thus, it is clear that the pregnancy of the petitioner has crossed 12 weeks as per the application of the 1971 Act. Now the pregnancy can be terminated only as per the provisions of Sub-Section (2) of Section 3 of the Act, 1971. By way of explanation (1) where the pregnancy is caused by rape, the anguish shall be presumed to constitute a grave injury to mental health.
The FIR was lodged on 27.7.2021, which clearly shows that the petitioner must have conceived pregnancy sometime in the month of April 2021. Under these circumstances, the court held it is clear that the petitioner became pregnant after 19 years of her age. In FIR itself it is specifically mentioned that since the petitioner was in deep love with the boy, therefore, she used to visit him in absence of his family members and they used to have consensual sex. The petitioner is a major girl knowing fully well the pros and cons of consensual sex without any precaution. Even the FIR was lodged after it was detected that the petitioner is pregnant.
5. Final Directions
For the purpose of this writ petition, the only question which requires consideration is as to whether the permission for medical termination of pregnancy can be given or not specifically in the light of the provisions of IPC that the termination of pregnancy is otherwise an offence.
This Court is of the considered opinion that since the petitioner involved herself in consensual sex knowing fully well about the consequences of such act, and the allegations made in FIR, do not prima facie make out a case of consent obtained by misrepresentation of fact, therefore, under these circumstances, medical termination of pregnancy cannot be permitted.
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