# Haji Mahboob Ahmad & Anr v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 643
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-24
- **Bench:** Shekhar B. Saraf, Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/haji-mahboob-ahmad-anr-v-state-of-u-p-ors-52266
- **Pages:** 13

## Headnote

A. Civil Law-Constitution of India, 1950Article
226-Medical
Termination
of
Pregnancy Act, 1971- Section 3(2-B)-
seeking a writ of mandamus to medically
terminate the pregnancy of a minor who is
victim of rape-the petitioner was found to
be 29 weeks pregnant at the time of
recovery-The court directed the C.M.O. to
constitute medical board to examine the
petitioner-The medical board concluded
that continuing the pregnancy would
impact the physical and mental well being
of the petitioner but termination at this
stage would pose a risk to her life-The
court relied Apex Court judgment and
decide to allow the petitioner to deliver
the child and put the child up for adoption
in the best interest of the petitioner.(Para
1 to 26)

B. The Apex court in its judgment ensured
that the rights of the victim were placed
on the highest pedestal, keeping in mind
the
pregnant
girl's
Right
to
bodily
autonomy enshrined under Article 21 of
the
Constitution
of
India
and
gave
appropriate directions with regard to the
adoption process that was to follow
thereinafter. This placed more emphasis
on the State's liability for bearing the
expenses of the victims in such cases.
Furthermore, it was highlighted that the
Medical board must not restrict itself
within the criteria of section 3(2-B) of the
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical Termination of Pregnancy Act,
1971, but also take into account the
physical and mental well being of the
pregnant woman.(Para 24)

The petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,744 of 41,365. This is a partial read: ask again with offset=39744 for what follows._

7 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P. & Ors.
643
obviously has resulted in an arbitrary action
and cannot be sustained in the eyes of the
law. However, the court is cognizant of the
fact that we are presiding over the
extraordinary writ jurisdiction, and we
cannot enter into the facets of contract law
in this jurisdiction. Nevertheless, even
though the fact that the entire controversy
herein is contractual in nature, as seen from
the Supreme Court judgements above, the
writ court is duty bound to step in when the
State acts in a whimsical, arbitrary and
capricious manner.

26. In light of the same, we are of the
view that the present order passed by the
authority concerned suffers from the vice
of violation of principles of natural justice
as well as it fails on the altar of
proportionality.

27. Accordingly, the impugned order
dated May 31, 2024, is quashed with a
direction to the authority concerned to once
again issue a fresh show cause notice to the
petitioner (de hors the prejudice in the
earlier show cause notice). Once a show
cause notice is issued, the petitioner shall
be at liberty to file a detailed reply to the
same within a period of seven days.
Subsequent to the receipt of reply, an
opportunity of hearing should be granted
to the petitioner, and thereafter, a
reasoned order be passed by the authority
concerned. The authority concerned shall
be at liberty to consider the judgements
provided by the petitioner on the various
issues.

28. With the above observations, the
writ petition is allowed.
----------
(2024) 7 ILRA 643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2024
BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ C No. 21956 OF 2024

Haji Mahboob Ahmad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Khaleeq Ahmad Khan, Mohemmed Amir
Naqvi, Najam Zafar, Rafat Farooqui

Counsel for the Respondents:
G.A., Shiv P. Shukla

A. Civil Law-Constitution of India, 1950Article
226-Medical
Termination
of
Pregnancy Act, 1971- Section 3(2-B)-
seeking a writ of mandamus to medically
terminate the pregnancy of a minor who is
victim of rape-the petitioner was found to
be 29 weeks pregnant at the time of
recovery-The court directed the C.M.O. to
constitute medical board to examine the
petitioner-The medical board concluded
that continuing the pregnancy would
impact the physical and mental well being
of the petitioner but termination at this
stage would pose a risk to her life-The
court relied Apex Court judgment and
decide to allow the petitioner to deliver
the child and put the child up for adoption
in the best interest of the petitioner.(Para
1 to 26)

B. The Apex court in its judgment ensured
that the rights of the victim were placed
on the highest pedestal, keeping in mind
the
pregnant
girl's
Right
to
bodily
autonomy enshrined under Article 21 of
the
Constitution
of
India
and
gave
appropriate directions with regard to the
adoption process that was to follow
thereinafter. This placed more emphasis
on the State's liability for bearing the
expenses of the victims in such cases.
Furthermore, it was highlighted that the
Medical board must not restrict itself
within the criteria of section 3(2-B) of the
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical Termination of Pregnancy Act,
1971, but also take into account the
physical and mental well being of the
pregnant woman.(Para 24)

The petition is allowed. (E-6)

List of Cases cited:

1. X Vs. U.O.I. (2023) SCC OnLine SC 1338

2. R Vs.U.O.I. & ors. SLP (Civil) Diary No. 4527
of 2024 (2024 SCC Online Del 440)

3. P Vs U.O.I. WP(s) Civil No(s). 65 of 2023

4. X Vs U.O.I. (2023) SCC OnLine SC 1338

5. A (Mother of X) Vs St. of Mah. (2024) SCC
OnLine SC 835

(Delivered by Hon'ble Shekhar B. Saraf, J.
&
Hon'ble Manjive Shukla, J.)

1. Heard Sri Desh Ratan Chaudhary
and Sri Siddharth Chaudhary, learned counsel
appearing on behalf of the petitioner and Sri
Birendra Prasad Shukla, the learned Standing
Counsel appearing on behalf of the State.

2. This is a writ petition under Article
226 of the Constitution of India wherein the
petitioner has prayed for the issuance of a
Writ of Mandamus commanding the Chief
Medical
Officer
concerned
(hereinafter
referred to as respondent no. 3) to medically
terminate the pregnancy of the petitioner.

FACTUAL
MATRIX
OF
THE
CASE

3. Factual matrix leading to the
instant petition is delineated below:

a) Petitioner, aged 15 years, was
living in the house of her maternal uncle.

b) On June 25, 2024, a First
Information Report was lodged at Police
Station concerned under Section 363 of the
Indian
Penal
Code,
1860,
by
the
petitioner's maternal uncle alleging that the
petitioner was enticed away by a man.

c) On June 28, 2024, during the
course of the investigation, the petitioner
was recovered, and it was found that the
petitioner
was
subjected
to
sexual
intercourse. Subsequently, the case was
converted under Sections 363 and 376 of
the IPC and Section 3/4 of the Protection of
Children from Sexual Offences Act, 2012
(hereinafter referred to as the POCSO Act).

d) It was revealed by the
ultrasonography report that the petitioner
was having a pregnancy of about 29 weeks
at the time of recovery.

4. From an examination of the date of
the F.I.R. and the allegation of rape in the
month of June, we were uncertain as to
whether the case made out by the petitioner
of her rape in the month of June is valid as
she was 29 weeks pregnant in the month of
June itself. However, it is to be noted that if
the petitioner is actually only 15 years old,
the same would constitute an offence of
statutory rape.

5. Accordingly, keeping in mind the
urgency of the matter and taking a
humanitarian view as the petitioner is
supposedly 15 years old (as per her high
school mark sheet), respondent No. 3 was
directed to immediately constitute a Fivemember Team headed by the Department
of
Obstetrics
and
Gynaecology,
Department of Anaesthesia and Department
of Radio Diagnosis to examine the
petitioner and submit a report before this
Court in a sealed cover within a period of 3
days. The team was also directed to carry
7 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P. & Ors.
645
out an age verification test on the petitioner
and inform the Court of the same.

6. On July 18, 2024, the matter was
placed before the coordinate Division
Bench of this Court, who found the report
dated July 16, 2024, provided by the FiveMember Team to be unclear with regard to
the Medical Termination of Pregnancy and
thereby directed respondent No. 3 to submit
a fresh report before this Court on July 22,
2024, answering whether it is medically
feasible and advisable to terminate the
pregnancy suffered by the petitioner. The
relevant portion of the report dated July 16,
2024, is reproduced herein:

"मेडडकल बोडग की धिककत्सकीय
आख्या :-

पीडडर्ा के अल्रासाउण्ड की ररपोटा
अनुसार र्भा लर्भर् 31 wks का है िोकक
period of viability के सापेक्ष पूणा है।
अल्रासाउण्ड की ररपोटा अनुसार र्भा का
अनुमाननर् ििन 1662±243 ग्राम है। fetal
Heart Rate 130 BPM है। थत्री रोर् विशेषज्ञ
के अनुसार पीडडर्ा के र्भा में पल रहे बच्िे
का प्रसि कराया िा सकर्ा है। आयु
ननिाारण बोडा की राय अनुसार पीडडर्ा की
आयु लर्भर् 17 िषा अनुमाननर् है। बाल
रोर्
विशेषज्ञ
की
राय-पीडडर्ा
की
अल्रासाउण्ड ररपोटा में पीडडर्ा के र्भा में
पल रहा र्भााथि सशशु, लर्भर् 31 सप्र्ाह
का है र्िा पीडडर्ा की थियिं की आयु कम
(17 िषा है)। यदद ऐसे पीडडर्ा का प्रसि /
एम०टी०पी० कराया िार्ा है िो िन्द्म लेने
पाला सशशु कािी प्री मेिोर होर्ा र्िा
उसके िेिडे सदहर् अन्द्य सभी अिंर् प्री
मेिोर होर्े। स्िस कारण सशशु सामान्द्य
सािंस
लेने
कािी
कदठनाई
होने
की
सम्भािना रहेर्ी।

अर्ः इस पररस्थिनर् में पीडडर्ा
का प्रसि / एम०टी०पी० उच्िीकृर् सिंथिान
में कराना अचिक सुरक्षक्षर् होर्ा।"

7. On July 22, 2024, the fresh report
dated July 20, 2024, was submitted by
respondent No. 3. The relevant portion of
the report is produced herein:

"मेडडकल
बोडग
की
धिककत्सकीय
आख्या :-

पीडडर्ा के अल्रासाउण्ड की ररपोटा
अनुसार र्भाथि भ्रूण लर्भर् 31 wks का है
िोकक period of viability के सापेक्ष पूणा है।
अल्रासाउण्ड की ररपोटा अनुसार र्भा भ्रूण
का अनुमाननर् ििन 1662±243 ग्राम है।
fetal Heart Rate 130 BPM है।

आयु ननिाारण बोडा की राय
अनुसार पीडडर्ा की आयु लर्भर् 17 िषा
अनुमाननर् है। पीडडर्ा की अल्रासाउण्ड
ररपोटा में पीडडर्ा के र्भा में पल रहा
र्भाथि सशशु, लर्भर् 31 सप्र्ाह का है
र्िा पीडडर्ा की थियिं की आयु (17 िषा)
है। र्भा में पल रहे ककसी भी भ्रूण का
र्भापार्, र्भािारण के 24 सप्र्ाह के
उपरान्द्र् ननयमानुसार नही ककया िा सकर्ा
है (MTP AMENDMENT ACT 2021).
646 INDIAN LAW REPORTS ALLAHABAD SERIES

अर्ः
उपरोक्र्
पररस्थिनर्
के
दृस्ष्टर्र् पीडडर्ा का र्भापार् नहीिं कराया
िा सकर्ा है।"

8. Upon perusal of the same, we
found it to be inconclusive and passed a
further order commanding the Chief
Medical Officer, Prayagraj (hereinafter
referred to as the C.M.O., Prayagraj) to
constitute a Medical Board of five wellreputed doctors including the Doctors from
the departments, namely, Department of
Obstetrics & Gynaecology, Department of
Neonatology and Department of Psychiatry
to examine the petitioner physically as well
as mentally. The Medical Board was also
directed to counsel the petitioner and her
parents and advise them of the possibilities
of adoption and the secrecy/privacy thereof
that would be maintained in the event the
petitioner agrees to carry the child to full
term. Furthermore, they were directed to
answer the following questions, which
were formulated thus:

"a.
Whether
carrying
the
pregnancy to the full term would impact
upon the physical and mental well-being of
the petitioner?

b. Whether termination of the
pregnancy can be carried out at this stage
without any threat to the life of the
petitioner?

c. Whether the age of the
petitioner would impact on the health
condition of the petitioner in case of
medical termination of pregnancy?

d. Whether the petitioner and her
parents
are
consenting
to
the
said
procedure as explained by the Doctors with
regard to the medical termination of the
pregnancy?"

9. The conclusions in the report dated
July 23, 2024, submitted by the Medical
Board constituted by C.M.O., Prayagraj,
are extracted below:

"ररट याचिका सिंख्या-21956/2024
थटेट ऑि यू०पी० ि 02 अन्द्य में मा०
उच्ि न्द्यायालय द्िारा पाररर् आदेश ददनािंक
22.07.2024 में ददये र्ये ननदेशों के
अनुपालन र्िा प्रिानािाया, मोर्ीलाल नेहरू
मेडडकल कालेि, प्रयार्राि के पत्र सिंख्या-
1664 ददनािंक 23.07.2024 के क्रम में आि
ददनािंक 23.07.2024 को मेडडकल बोडा द्िारा
याचिकर्ाा का चिककत्क्सकीय परीक्षण ककया
र्या र्िा बबन्द्दु सिंख्या 7 में अिंककर् प्रचनों
के उत्तर ननम्निर् ददये र्ये है:-
Question
Answer
a. Whether carrying
the pregnancy to the
full
term
would
impact
upon
the
physical and mental
well being of the
petitioner?
Yes, continuing the
pregnancy to full
term may impact on
physical and mental
well being of the
petitioner.
b.
Whether
termination of the
pregnancy can be
carried out at this
stage without any
threat to the life of
the petitioner?
No, termination of
pregnancy
cannot
be carried out at
this stage without
any threat to the life
of
the
petitioner
because termination
at this stage will
require induction of
labour that may be
associated
with
complication
and
increased
chances
of
surgical
intervention.
c. Whether the age Yes, the age of the
7 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P. & Ors.
647
of
the
petitioner
would impact on the
health condition of
the
petitioner
in
case
of
medical
termination
of
pregnancy?
petitioner
would
impact on the health
condition
of
the
petitioner in case of
termination
of
pregnancy.
d.
Whether
the
petitioner and her
parents
are
consenting to the
said procedure as
explained
by
the
doctors with regard
to
the
medical
termination
of
pregnancy?
Yes, the petitioner
and her parents are
consenting to the
said procedure of
termination
of
pregnancy
after
being explained and
counseled regarding
the procedure and
possible outcomes.

10. Hence, the points put to the
C.M.O., Prayagraj for determination were
answered in the following terms:

a. Yes, the pregnancy would have
an impact on the physical and mental wellbeing of the petitioner.

b.
No,
there
cannot
be
a
termination
without
any
serious
complications posed to the petitioner.

c. Yes, the age is a relevant factor
in impacting the health of the petitioner.

d. Yes, the petitioner and her
parents are consenting to the termination of
pregnancy after getting counselled.

MEDICAL TERMINATION OF
PREGNANCY

11. In the case of X v. Union of India,
reported in 2023 SCC OnLine SC 1338,
the Three-Judge Bench comprising of
Hon'ble Dr. D.Y. Chandrachud, C.J.,
Hon'ble J.B. Pardiwala, and Hon'ble
Manoj Misra, JJ., the law relating to the
Medical Termination of Pregnancies in
India had been perspicuously laid out. The
relevant paragraphs of the judgement are
extracted as follows:

"15.
The
termination
of
pregnancies is governed by the MTP Act
and the rules framed under it. The MTP Act
is a progressive legislation which regulates
the manner in which pregnancies may be
terminated. Section 3 spells out certain
conditions which must be satisfied before a
pregnancy
can
be
terminated.
The
conditions depend upon the length of the
pregnancy. Where the length of the
pregnancy does not exceed twenty weeks,
one Registered Medical Practitioner must
be of the opinion, formed in good faith, that
:

a.
The
continuance
of
the
pregnancy would involve a risk to the life
of the pregnant woman or of grave injury
to her physical or mental health. The
anguish caused by a pregnancy which
occurs due to the failure of a contraceptive
method is presumed to constitute a grave
injury to the mental health of the woman;
or

b. There is a substantial risk that
if the child were born, it would suffer from
any
serious
physical
or
mental
abnormality.

16. Where any pregnancy is
alleged by the pregnant woman to have
been caused by rape, the anguish caused by
the pregnancy is presumed to constitute a
grave injury to the mental health of the
woman. The presumption adverted to in (a)
above makes it evident that the MTP Act
recognizes the autonomy of the pregnant
woman and respects her right to choose the
course of her life.

17. Where the length of the
pregnancy exceeds twenty weeks but does
not exceed twenty-four weeks, two RMPs
must be of the opinion discussed in the
preceding paragraph. The categories of
648 INDIAN LAW REPORTS ALLAHABAD SERIES
women where a pregnancy beyond 20
weeks and up to 24 weeks may be
terminated are permitted to be prescribed
by rules made by the delegate of the
legislature. Rule 3B of the MTP Rules (as
amended in 2021) provides grounds for the
termination of a pregnancy up to twentyfour weeks. The termination may be
allowed in the following cases or for the
following persons:

a. Survivors of sexual assault or
rape or incest;

b. Minors;

c. Change of marital status
during the ongoing pregnancy (widowhood
and divorce);

d.
Women
with
physical
disabilities with a major disability in terms
of the criteria laid down under the Rights
of Persons with Disabilities Act, 2016;

e. Mentally ill women including
mental retardation;

f. Foetal malformation that has a
substantial risk of being incompatible with
life or where in the event of birth, the child
may suffer from physical or mental
abnormalities
and
be
seriously
handicapped; and

g. Women with pregnancy in
humanitarian settings or disaster or
emergency situations as may be declared
by the Government.

18. In X v. Principal Secretary,
Department of Health and Family Welfare,
GNCTD, this Court held that the benefits of
Rule 3B(c) extend equally to both single
and married women and that the benefits of
Rule 3B extend to all women who undergo
a change in their material circumstances.

19. Significantly, if in the opinion
of an RMP, the termination of a pregnancy
is immediately necessary to save the life of
a pregnant woman, the provisions of
Section 3 which relate to the length of the
pregnancy and the opinion of two RMPs
shall not apply. Section 4 (which concerns
the place at which a pregnancy may be
terminated) shall not apply to such cases as
well. The design of the statute makes it
evident that saving the life of the pregnant
woman is of paramount importance,
notwithstanding
the
length
of
the
pregnancy.

20. Further, the provisions of
Section 3(2) relating to the length of the
pregnancy
shall
not
apply
to
the
termination of a pregnancy by an RMP,
where such termination is necessitated by
the diagnosis of any of the substantial
foetal
abnormalities
diagnosed
by
a
Medical Board. The Medical Board has the
power to allow or deny the termination of a
pregnancy the length of which is beyond
twenty-four weeks. It may do so only after
ensuring that the procedure would be safe
for the woman at that gestation age and
after
considering
whether
the
foetal
malformation leads to a substantial risk of
the foetus being incompatible with life, or
where the child (if it is born) may suffer
from such physical or mental abnormalities
as to be seriously handicapped. Therefore,
the outer temporal limit within which a
pregnancy may be terminated is lifted in
some cases.

21. The position of law can
therefore be summarized as follows:

Length of the
pregnancy
Requirements
for
termination
Up to twenty
weeks
Opinion of one RMP in
terms of Section 3(2)
Between twenty
and
twentyfour weeks
Opinion of two RMPs in
terms of Section 3(2)
read with Rule 3B.
Beyond twentyfour weeks
If
the
termination
is
required to save the life
of the pregnant woman,
the opinion of one RMP
in terms of Section 5
7 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P. & Ors.
649
If there are substantial
foetal
abnormalities,
with the approval of the
Medical Board in terms
of Section 3(2B) read
with Rule 3A(a)(i)"

ANALYSIS

12. We have heard the learned
counsel appearing for the parties and
perused the materials on record.

13. First and foremost, the issue that
lies in front of us is whether or not to allow
the termination of this pregnancy that has
now culminated into its 32nd week.

14. In R -v- Union of India & Ors.,
bearing
SLP
(Civil)
Diary
No(s).
4527/2024, headed by Hon'ble Bela M.
Trivedi
and
Hon'ble
Prasanna
Bhalachandra Varale, JJ., the case arose out
of the Delhi High Court judgement of R -v-
Union of India & Ors, reported in 2024
SCC OnLine Del 440, headed by Hon'ble
Subramonium Prasad, J. The issue of
whether or not to allow the termination of a
32-week pregnancy was placed before the
Hon'ble Supreme Court. The case dealt
primarily with the aspects of grave injury to
the physical and mental health of the
petitioner, which would have resulted out
of carrying the pregnancy to term, given
the material changes and circumstances in
her marital life that arose out of the death
of her husband. The Delhi High Court in its
judgement
considered
the
effects
of
preterm delivery on the mother keeping in
mind the report of the Medical Board
constituted by AIIMS, New Delhi, wherein
they stated that given that this was her first
pregnancy, the preterm induction of labor
has a high chance of failure and may have
serious
implications
on
her
future
pregnancies. The relevant paragraph from
the judgement is as follows:

"9. Ms. Aishwarya Bhati, learned
ASG appearing for Union of India, has
drawn the attention of this Court to the
report dated 13.01.2024 which states that
as care providers, AIIMS is committed to
provide best possible care to the mother
and fetus, the mother's interest being
paramount. The report also states that the
outcome of severe depression with suicidal
ideation cannot be predicted at present pre
and post delivery. The report also states
that the effects of the preterm delivery on
the mother should also be considered and
this being her first pregnancy, a preterm
induction of labor has a high chance of
failure and may lead to caesarean section
which may have serious implications on
her future pregnancies. The report also
states that the outcome will be much better,
if the baby is delivered at 34 weeks or
beyond. The report also states that the
provision of termination of pregnancies
beyond 24 weeks is to be done for fetuses
having
significant
abnormalities
and
feticide in this case is neither justified nor
ethical as the fetus is grossly normal."

15. Bearing this in mind, the Hon'ble
Supreme Court upheld the decision of the
Delhi High Court dated January 23, 2024.
Relevant paragraphs from the Supreme
Court judgement are extracted as follows:

"3.
Having
heard
learned
counsel for the petitioner and having
perused the impugned order passed by the
High Court, it appears that the High Court
had called for the report from the Medical
Board, AIIMS which is reproduced as
under:- "In this regard, it is informed that
at present the period of gestation is 30
weeks plus 6 days, the fetus is viable and 2
650 INDIAN LAW REPORTS ALLAHABAD SERIES
the fetus will be alive after delivery. The
anticipated requirement for NICU ICU
care will range from 30-45 days with
reasonable
risk
of
physical
mental
handicap
subsequently.
However,
if
pregnancy is carried on till term (37 week),
the anticipated requirement of NICU will
be minimal to nil. There will be very high
likelihood of morbidity free survival. Hence
the medical board would like to request the
Hon'ble
High
Court
of
Delhi
for
appropriate management of new born after
delivery."

4. Considering the said Report,
the High Court has observed as follows:-

"23.
The
Medical
Reports
indicate that a preterm induction of labor
has a high chance of failure and may lead
to caesarean section which may have
serious
implications
on
her
future
pregnancies. The report also indicates that
the child which is born after a preterm
induction of labor can have physical and
mental deficiencies which will have drastic
effect on the future of the child and that the
NICU ICU care in such case is about 30-45
days with reasonable risk of physical and
mental handicap of the new born.

24. In view of the Reports dated
06.01.2024, 12.01.2024 and 13.01.2024 of
the AIIMS Hospital, which have been
brought to the notice of this Court
subsequent to the Order dated 04.01.2024,
the Court is inclined to recall the Judgment
dated 04.01.2024 passed by this Court. The
Judgment dated 04.01.2024 is hereby
recalled.

25. The Petitioner, who is already
having as on date 32 weeks period of
gestation, if so advised, can go to AIIMS
Hospital, New Delhi and present herself
before the Medical Board and it is for the
Medical Board to take a decision as to how
to go ahead with the delivery at the
appropriate time.

26. It is for the Petitioner to
decide where the delivery is to be
conducted i.e., whether to go AIIMS or any
other Central Government Hospital or at
any State Government Hospital. If the
Petitioner is inclined to undergo her
delivery at any Central Government
Hospital, the Central Government shall
bear all the medical expenses and all other
incidental charges of the delivery. If the
Petitioner is inclined to undergo her
delivery at any State Government Hospital,
the State Government shall bear all the
medical expenses and all other incidental
charges of the delivery

27. If the Petitioner is inclined to
give the new born child in adoption then as
suggested by Ms. Aishwarya Bhati, learned
ASG, the Union of India shall ensure that
the process of adoption takes place at the
earliest and in a smooth fashion."

5. In view of the above wellconsidered Judgment passed by the High
Court, and considering the fact that the
petitioner is having pregnancy of over 32
weeks by now, it is not advisable to accept
her prayer as prayed for.

6. Since the High Court has taken
sufficient safeguards in the impugned
order, it is expected that the petitioner shall
be taken care of by the Central Government
Hospital/State Government Hospital as
observed in the said order."

16. Here, the Supreme Court upheld
the judgement of the Delhi High Court,
keeping in mind the late stage of pregnancy
of the woman. It balanced the best interests
of the mother and foetus and directed that
upon delivery, the child shall be given up
for
adoption.
This
was
done
in
consideration of the complications that
might have arisen out of going ahead with
the medical termination of such a late-stage
pregnancy. This case subtly ensured that
7 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P. & Ors.
651
the health of the mother was not
compromised whilst also making an
attempt to further the rights of the foetus,
thereby stepping a step further in the
current landscape of abortion laws in India.

17. In the case of X -v- Union of
India and Another (supra), the Hon'ble
Supreme Court dealt with the question of
whether or not to terminate a pregnancy in
its third trimester, for the foetus was a
viable one. The petitioner, in that case, did
not have the financial means to raise the
child, which initially led her to seek the
termination, but as the case evolved, she
grew averse to terminating the baby and
sought
alternative
means.
Relevant
paragraphs from the judgement have been
extracted as follows:

"29. As noticed above, the length
of the pregnancy has crossed twenty-four
weeks. It is now approximately twenty-six
weeks and five days. A medical termination
of the pregnancy cannot be permitted for
the following reasons:

a. Having crossed the statutory
limit
of
twenty-four
weeks,
the
requirements in either of Section 3(2B) or
Section 5 must be met;

b. There are no "substantial
foetal abnormalities" diagnosed by a
Medical Board in this case, in terms of
Section 3(2B). This Court called for a
second medical report from AIIMS to
ensure that the facts of the case were
accurately placed before it and no foetal
abnormality was detected; and

c. Neither of the two reports
submitted by the Medical Boards indicates
that a termination is immediately necessary
to save the life of the petitioner, in terms of
Section 5.

30. Under Article 142 of the
Constitution, this Court has the power to
do complete justice. However, this power
may not be attracted in every case. If a
medical termination were to be conducted
at this stage, the doctors would be faced
with a viable foetus. One of the options
before this Court, which the email from
AIIMS has flagged, is for it to direct the
doctors to stop the heartbeat. This Court is
averse to issuing a direction of this nature
for the reasons recorded in the preceding
paragraph. The petitioner, too, did not wish
for this Court to issue such a direction.
This was communicated by her to the court
during the course of the hearing. In the
absence of a direction to stop the
heartbeat, the viable foetus would be faced
with a significant risk of lifelong physical
and
mental
disabilities.
The
reports
submitted by the Medical Board speak for
themselves.

31. For these reasons, we do not
accede to the prayer for the medical
termination of the pregnancy.

32.
The
delivery
will
be
conducted by AIIMS at the appropriate
time.
The
Union
Government
has
undertaken to pay all the medical costs for
the delivery and incidental to it.

33. Should the petitioner be
inclined to give the child up for adoption,
the Union Government has stated through
the submission of the ASG that they shall
ensure that this process takes place at the
earliest, and in a smooth fashion. Needless
to say, the decision of whether to give the
child up for adoption is entirely that of the
parents."

18. In the aforementioned case, the
question that was put in front of the
Hon'ble Supreme Court was pertaining to
the AIIMS, New Delhi report dated
October 10, 2023, wherein they stated that
the foetus had strong chances of survival
and thereby sought directions as to whether
652 INDIAN LAW REPORTS ALLAHABAD SERIES
the foetal heartbeat ought to be stopped,
considering that if the same was not done,
then the baby would be placed in an
Intensive Care Unit and there was a high
possibility of immediate and long-term
physical and mental disability. The Court,
after carefully analysing the law pertaining
to Medical Termination of Pregnancy in
India and the report provided by AIIMS,
New Delhi, directed AIIMS to ensure that
the delivery takes place smoothly whenever
the time comes and for the State to ensure
that the adoption of the child is also carried
out seamlessly. This was done keeping in
mind that the foetus would be able to
survive on its own and that there was no
express direction to stop the heartbeat. This
judgement, too, in essence, put forward the
idea
of
opting
for
adoption
over
terminating a third-trimester pregnancy.

THE PROCESS OF ADOPTION IN
INDIA

19. Adoption in India is regulated by
three primary laws: the Hindu Adoption
and Maintenance Act of 1956, which
applies to Hindus, Buddhists, Jains, and
Sikhs; the Guardian and Wards Act of
1890, which governs adoption for Muslims,
Parsis, Christians, and Jews; and the
Juvenile Justice (Care and Protection) Act
of 2000, which provides a more general
framework. Prospective Adoptive Parents
(PAPs)
must
submit
their
adoption
application and necessary documents via
CARA's website. Following this, a social
worker
from
a
CARA-recognized
Specialised
Adoption
Agency
(SAA)
conducts a home study of the PAPs and
uploads the report online. The SAA then
shares profiles of children who are legally
available for adoption with the PAPs, who
are required to reserve a child within 48
hours.

20. In P -v- Union of India, bearing
WP(s) Civil No(s). 65/2023, headed by
Hon'ble D.Y. Chandrachud, C.J., Hon'ble
Pamidighantam
Sri
Narasimha,
and
Hon'ble J.B. Pardiwala, JJ. dealt with the
case of a petitioner who expressed her
desire to proceed with the delivery at an
early date and did not wish to retain the
child after delivery. Additionally, two
prospective parents registered with a
registration number under the Central
Adoption Resource Authority (CARA)
came forward to adopt the child. The issue
that was put before the Hon'ble Supreme
Court therein was whether the petitioner's
request to proceed with the delivery of the
child and allow for the adoption of the
child by the prospective parents identified.
The Court, considering the petitioner's
desire to proceed with the delivery and the
expressed intention not to retain the child,
granted the request to proceed with the
delivery and allowed for the adoption of the
child by the prospective parents registered
with CARA. This was done keeping in
mind the 'best interest of the child'
principle as the identified adoptive parents
provided a suitable environment for the
child's upbringing. The relevant paragraphs
from
the
judgement
are
attached
hereinafter:

"4. In the circumstances, having
regard to the late stage of the pregnancy, it
has been considered in the best interest of
the mother and the fetus that the child,
upon delivery, may be given in adoption.
The request for adoption has been
suggested by the petitioner since she would
not be in a position to care for the child.

5. The petitioner is about twenty
years old. She is reported to have lost her
father during the Covid-19 pandemic. She
has a mother, who is unwell. The petitioner
also has a married sister who is about ten
7 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P. & Ors.
653
years older than her. Ms Aishwarya Bhati
has informed the Court that she has also
interacted with the sister of the petitioner to
explore whether she would be willing to
take the child in adoption. However, the
sister expressed her inability to do so for a
variety of reasons.

6. In this backdrop, Mr Tushar
Mehta,
Solicitor
General
and
Ms
Aishwarya Bhati have apprised the Court
that an effort has been made to facilitate
the process of adoption of the child after
delivery, by prospective parents who are
registered
with
the
Child
Adoption
Resource Authority under the auspices of
the Union Ministry of Women and Child
Development. The Court is apprised of the
fact that two prospective parents who have
been registered with a parent registration
number under CARA are ready and willing
to adopt the child. In the interest of the
privacy of the adopted parents, the parent
registration number has not been referred
to in the present order.

7. We accordingly issue the
following directions:

(i) In terms of the request which
is made before the Court, the delivery of
the child by the petitioner shall take place
at AIIMS. We request the Director, AIIMS
to ensure that all necessary facilities are
made available without the payment of fees,
charges or expenses of any nature so that
the delivery can take place in a safe
environment at AIIMS. The privacy of the
petitioner shall be maintained and all steps
shall be taken to ensure that the identity of
the petitioner is not divulged in the course
of the hospitalization at AIIMS; and

(ii) Permission is granted for the
adoption of the child by the prospective
parents whose details have been set out in
the CARA registration form. CARA shall
take all necessary steps to facilitate the
implementation of this order."

21. The cases of R -v- Union of India
& Ors (supra) and X -v- Union of India
and Another (supra), further placed
emphasis on putting up the newborn child
in adoption alongside ensuring that the
State shall streamline the process of
adoption in cases of petitions seeking
Medical Termination of Pregnancies in
later stages of pregnancy.

22. Keeping the above precedents in
mind, the Court decided to counsel the girl
and her relatives in the presence of the
counsel appearing on behalf of the
petitioner as well as the counsel on the
behalf of the State. The court explained to
the petitioner the risks involved in the
termination due to the late stage of
pregnancy. The petitioner and the relatives
upon being made to understand the risks to
the life of the petitioner and future risks
with regard to losing the ability to be
pregnant, subsequently opted to deliver the
child instead of terminating the said
pregnancy. The girl and her mother were
both of the opinion that they would like to
put the child for adoption post-parturition.

23. In the case of A (Mother of X) -v-
State of Maharashtra, reported in 2024
SCC OnLine SC 835, headed by Hon'ble
Dr. D.Y. Chandrachud, C.J., Hon'ble J.B.
Pardiwala, and Hon'ble Manoj Misra, JJ.,
the Hon'ble Supreme Court dealt with the
issue of a minor child who was also
subjected to sexual assault and was 25
weeks into her pregnancy. While the Court
had allowed for the Medical Termination of
Pregnancy of the foetus in its earlier order
dated April 22, 2024, it recalled the same in
its final judgement on the ground that the
petitioner was unwilling to go ahead with
the termination of pregnancy because of the
risks that the same would pose to her life.
Here, the Court directed the delivery of the
654 INDIAN LAW REPORTS ALLAHABAD SERIES
child to take place at the appropriate time
and directed the State to bear all expenses
concerning the same. Additionally, the
State was also directed to ensure that if the
victim wished for the child to be put up for
adoption, then the same would also be
taken care of by the State. The relevant
paragraphs
of
the
aforementioned
judgements are extracted as follows:

"36. In the present case the view
of X and her parents to take the pregnancy
to term are in tandem. The right to choose
and reproductive freedom is a fundamental
right under Article 21 of the Constitution.
Therefore, where the opinion of a minor
pregnant person differs from the guardian,
the court must regard the view of the
pregnant person as an important factor
while deciding the termination of the
pregnancy.

37. In the facts and circumstances
of this case, we issue the following
directions:

37.1. Sion Hospital shall bear all
the
expenses
in
regard
to
the
hospitalisation of the minor over the past
week and in respect of her re-admission to
the hospital for delivery as and when she is
required to do so; and

37.2. In the event that the minor
and her parents desire to give the child in
adoption after the delivery, the State
Government shall take all necessary steps
in
accordance
with
the
applicable
provisions of law to facilitate this exercise.
This shall not be construed as a direction
of this Court binding either the parents or
the minor and the State shall abide by the
wishes as expressed at the appropriate
stage.

24. The Supreme Court, in this
judgement, ensured that the rights of the
victim were placed on the highest pedestal,
keeping in mind the pregnant girl's Right to
Bodily Autonomy enshrined under Article
21 of the Constitution of India. and gave
appropriate directions with regard to the
adoption process that was to follow
thereinafter. This placed more emphasis on
the State's liability for bearing the expenses
of the victims in such cases. Furthermore, it
was highlighted that the Medical Board
must not restrict itself within the criteria of
Section 3(2-B) of the Medical Termination
of Pregnancy Act, 1971, but also take into
account the physical and mental well-being
of the pregnant woman.

25. In several judgements that have
been cited above, the Courts have held that
the choice of terminating one's pregnancy
is a serious and delicate issue that needs to
be dealt with a caring touch and in a
humane manner. This Court is also of the
opinion that a woman's decision in whether
or not to go ahead with the termination of
her pregnancy is a decision that is to be
taken by no one but herself. This is
primarily
based
on
the
widely
acknowledged idea of bodily autonomy.
Here, her consent reigns supreme. Even if
she decides to go ahead with the pregnancy
and put the child up for adoption, the duty
lies on the State to ensure that it is carried
out as privately as possible and also to
ensure that the child, being a citizen of this
land, is not stripped of the fundamental
rights that are enshrined in the Constitution.
Thereby, it is the State's duty to ensure that
the adoption process, too, is carried out in
an efficient manner and that the 'best
interests of the child' principle are
followed.

DIRECTIONS

26. Keeping in mind the decision of
the petitioner and her mother, we direct that
7 All. Raj Pratap Yadav Vs. State of U.P. & Ors.
655
the delivery of the child shall take place at
Lala Lajpat Rai Memorial Medical College,
Meerut. The State shall bear all the
expenses with regard to the delivery of the
child so that no hindrances exist in the course
of the same. The District Magistrate, Meerut,
is directed to be involved in the process so as
to ensure that all the medical and ancillary
expenses of the petitioner and her family are
borne by the State, which shall be inclusive
of their travel and stay in Meerut whensoever
required. The parents of the petitioner may
approach
the
Principal
and
Medical
Superintendent of the Lala Lajpat Rai
Memorial Medical College, Meerut and the
District Magistrate, Meerut, for further course
of action and proper guidance in this regard.
The Principal and Medical Superintendent of
the Lala Lajpat Rai Memorial Medical
College, Meerut and the District Magistrate,
Meerut, are directed to contact Sri Desh
Ratan Chaudhary, Advocate at his Mobile
No.9839035080 to ensure the future course
of action.

27. Considering the fact that the
petitioner and her mother have decided to
give up the child for adoption, the Director
of
the
Central
Adoption
Resource
Authority (CARA) shall take appropriate
steps in tandem with the applicable
provisions of law to facilitate the process
and ensure that the adoption process is
expedited.

28.