Can father of a minor pregnant daughter can get the foetus of his minor daughter aborted, when the pregnant minor daughter herself is not agreeing for such termination?

Daniyal Qureshi | Symbiosis Law School Pune | 4th April 2020

Ram Avtar v. State of Chhattisgarh and Ors. The High Court of Chhattisgarh MANU/CG/0295/2020

Facts. 

The brief facts of the case are that the petitioner is the father of the girl who is herself a victim of rape and consequently to the crime became pregnant.
The father wishes for the girl who is a minor to abort the pregnancy however the girl refuses to do so. 

Thus the father filed this writ petition praying for the court to direct a medical termination of the pregnancy.

Issues.

Whether the minor daughter’s right to life under Article 21 of the Constitution of India includes the right to beget a life or create a life. 

Judgement.

For the purpose of understanding a woman reproductive rights the High Court perused Section 3 of the Medical Termination of Pregnancies Act 1971. Section 3 of the said act allows a pregnancy to be terminated at any stage one which is begotten to a rape victim as a result of the rape and the termination of which would not be a health risk to the mother.           However, the issue remains that Explanation II of the section mandates the consent of the guardian in case of a minor. 

In Suchita Srivastava and another v. Chandigarh Administration^[1] the Supreme Court held that the reproductive rights of a woman are a tenet of personal liberty of the woman. That to reproduce and to refuse to reproduce or to insist on use of contraceptive was a crucial dimension of right to life and right to privacy and must be respected.

In Marimuthu v. The Inspector of Police and others^[2] the Supreme Court held that the right to get pregnant and whether to retain that pregnancy or not is in consonance with the United Nations Covenant on Human Rights. Considering the right to life which includes a right to beget a life and bodily autonomy, the foetus cannot be ordered to be aborted against the wishes of the victim girl.

In English Law, the opinion of the parents or natural guardians in the matter of abortion is irrelevant and if the minor girl is capable of understanding the implication, her opinion is quite relevant and important.

The American Law takes into account the rights of the minor vis-à-vis the maturity level. In Denforth’s case (49 L.Ed. 2d 788), it was held (1) that mature minors have a right to make their own decisions about abortion without parental involvement; (2) that mature and immature minors must, as a matter of constitutional law, have the opportunity, through an alternative judicial or administrative procedure, to obtain an abortion without parental consent or consultation; and (3) that with respect to immature minors, the sole test must be their own best interests. 

The Hon’ble High Court recorded that the girl was not wanting for understanding of the consequences of her decisions and was sufficiently matured enough being aged 17 years and 8 months. That the right to beget life or create a life is an established an protected tenet of Article 21 of the constitution of India.

Petition was dismissed.

^[1] (2009) 9 SCC 1

^[2] W.P.(MD) No. 12212/2016, decided on 19-9-2016