Source – Delhi High Court

Why in News?

Recently, the Delhi High Court in the case of Nabal Thakur v. The State held that Delhi Police’s Investigating Officers must produce the rape victim before the concerned hospital for conducting the procedure within 24 hours, even in cases where the gestation period of the pregnancy is less than 20 weeks.

Background

• The accused had called the prosecutrix to his house on some false pretext on 24^th November 2020 and had repeatedly raped her.
• The prosecutrix was 16 years old at the time of the incident.
• Thereafter the prosecutrix was found to be four weeks and five days pregnant.
• The accused filed a bail application before the High Court which was later denied.

Court’s Observations

Justice Swarana Kanta Sharma issued the following guidelines to be followed by the doctors and the Delhi Police while dealing with cases of medical termination of pregnancy of victims of rape:

• Where an order for medical termination of pregnancy has been passed, the Delhi Police’s Investigating Officers must produce the victim before the concerned hospital for conducting the procedure within 24 hours, even in cases where the gestation period of the pregnancy is less than 20 weeks.
• Directions have been given to Delhi Government’s Department of Health and Family Welfare and Union Ministry of Health and Family Welfare to ensure that the existing guidelines or Standard Operating Procedure for conducting examination of the victims of sexual assault are circulated in all the hospitals in the national capital.
• The abovesaid Ministries are also directed to circulate the additional directions contained in the present judgment which be added to the existing SOPs, that in case the victim is pregnant and there are orders for Medical Termination of Pregnancy (MTP) including for preservation of fetus, the investigating officer will place such order before the Superintendent of the hospital concerned, who will ensure that the doctor concerned who is assigned the duty of medical termination of pregnancy conducts the same with utmost caution.
• The concerned doctor conducting medical termination of pregnancy will ensure that the fetus is preserved, and the victim is not discharged in a hurry, which may result in putting the life of the victim in danger and loss of evidence in a sexual assault case.
• In cases where medical examination of a victim of sexual assault is conducted, all the hospitals concerned will ensure that along with the original MLC (Medio Legal Certificate) as well as discharge summary of such victim, a typed copy of the same is also prepared by the concerned hospital and provided to the investigating officer within a period of one week.
• The aforesaid directions of this Court be circulated, within 15 days of issuance of this order and its receipt by the Ministry of Health and Family Welfare, Government of India, and Department of Health and Family Welfare, Government of NCT of Delhi in all the hospitals in Delhi.
• These guidelines will be read in addition to the guidelines issued by this Court in Minor R Thr Mother H v. State NCT of Delhi (2023).

Legal Provisions

Medical Termination of Pregnancy Act, 1971 (MTP)

• The MTP Act came into force on 1st of April 1972.
• The MTP Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks to 24 weeks pregnant to abort with the help of registered medical practitioners.
• This Act was updated more comprehensively in 2020, and the revised law became effective in September 2021 with the following amendments.
• Increase in the maximum gestational age at which a woman may obtain a medical abortion from 20 weeks under the MTP Act of 1971 to 24 weeks.
• A single qualified medical professional’s opinion might be used to access the MTP up to 20 weeks into the pregnancy and from 20 weeks up to 24 weeks, the opinion of two registered medical practitioners would be required.
• After seeking the opinion of two registered medical practitioners, the pregnancy can be terminated up to 24 weeks of gestational age under the conditions given below:
  • If the woman is either a survivor of sexual assault or rape or incest;
  • If she is a minor;
  • If there is a change in her marital status during the ongoing pregnancy (due to widowhood or divorce);
  • If she suffers from major physical disabilities or she is mentally ill;
  • Termination of pregnancy on the grounds of fetal malformation incompatible with life or the possibility of a seriously handicapped child being born;
  • If the woman is situated in a humanitarian setting or disaster or stuck in the emergency as declared by the Government.
• Abortion is performed based on fetal abnormalities in cases where pregnancy has progressed over 24 weeks.
  • A four-member Medical Board, established in each state under the MTP Act, must grant permission for this type of abortion.
• In X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi (2022), the Supreme Court delivered a significant judgment that there should not be any distinction between married and unmarried women in seeking an abortion of pregnancy in the 20-24 weeks terms arising out of a consensual relationship. It stated that all women are entitled to safe & legal abortion.