Abortion of 24 weeks foetus is not legal under MTPA, 1971 :

Section 312 in The Indian Penal Code

312. Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall, if such
miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished
with imprisonment of either description for a term which may extend to three years, or with fine, or
with both; and, if the woman be quick with child, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine. Explanation.—A
woman who causes herself to miscarry, is within the meaning of this section.

In Dr Nikhil Dhattar v Union of India & ors. Mumbai HC(2008), a case similar to the one of Ms X’s, where
the petitioners, Haresh and Nikita Mehta had beseeched the Bombay High Court to allow them to abort
their 26-week-old foetus, which had been diagnosed with a heart defect. It is during this case that the
medico-legal narrative was jolted into awareness about how the advent of medical technology
mandated a change in the understanding of foetus viability and amendments in the law. Their plea was
struck down because of expert medical opinion. The Court suggested that changes in the law can only be
affected by the legislature.

There should be no discrimination

Nand Kishore Sharma v. Union of India & others :

While the Courts in India have recognized the right of reproductive autonomy as a fundamental right
guaranteed to a woman under Article 21, the legislature has also placed reasonable restrictions on such
rights through the Medical Termination of Pregnancy Act, 1971 and Preconception and Prenatal
Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994, which has further been upheld by
judicial pronouncements.

 There are certain rights a fetus has :

West German Constitutional Court decision in the abortion reform law case
(1975) 39 B Verf GE. In the said case the West German Constitutional Court laid down
the following proposition:
(1) "Everyone" in Article 2 includes an unborn being;
(2) Human life exists in embryo from the fourteenth day of the conception;
(3) It is the duty of the State to protect and promote the life of the foetus
and defend it from unlawful interference by other person;
(4) The right of development accrues in the foetus from the mother's womb
and is not complete even after birth;
(5) If the foetus was considered only as a part of the maternal organism, the
termination of pregnancy would remain entirely in the sphere of private life,
not warranting public interferences. But because the foetus is "an
autonomous human being" under the protection of the Constitution, the
termination of pregnancy has a social dimension which demands public
regulation;
(6) The Constitution also protects a woman's right to free development of
her personality, which includes freedom to decide against parenthood. But
this right is not guaranteed without limitations. The right of others, the
constitutional order, and the moral code all restrict it;
(7) A compromise which guarantees both the protection of foetus as well as
the freedom of abortion of a pregnant woman is impossible because the
termination of pregnancy always means "destruction of unborn life". The
legal order cannot, therefore, make a woman's self-determination, the
principle of its regulations. On the other hand, the protection of foetus must
be given priority to the woman's right of self-determination;
(8) The State is to effectively fulfil its duty to protect the "developing life". In
discharging this duty the State is to make a reasonable adjustment between
unborn right to life and the woman's right to her own life and health. The
unborn's right to life can lead to burdens for the woman which sharply
exceed those of a normal pregnancy. In such a case, the State may exempt
the pregnant woman from punishment for destroying the foetus where there
is necessity to protect the pregnant woman from a threat to her life or a
threat of a serious impact on her health or other cases, where the burden is
extraordinary; and
(9) The duty of the court is not to put itself in the legislator's place, but to
determine whether the legislator has fulfilled its duty to protect the
"developing life" and made a reasonable adjustment between the right of the
unborn and the right of the pregnant woman. (see D.D. Basu, Commentary
on Constitution of India, Vol. III Edn, 2008 3143)"

Roe v. Wade 35 L Ed 2d 147 : 410 US 113 (1973) became one of the most politically
significant decisions of the Supreme Court of the United States. This is a landmark
United States Supreme Court decision establishing that most laws against abortion
violate a constitutional right to privacy, thus overturning all State laws restricting the
abortion that were inconsistent with the decision. Jone Roe, wanted to terminate her
pregnancy because she contended that it was a result of rape. Relying on the then
current state of medical knowledge, the decision established a system of Trimesters
that attempted to balance the State's legitimate interests with the individual
constitutional rights. The Court ruled that the State cannot restrict a women's right to
an abortion during the first trimester, the State can regulate the abortion procedure
during the second trimester "in ways that are reasonably related to maternal health"
and in the third trimester, demarketing the viability of the foetus, a State can choose to
restrict or even to prescribe abortion as it would deem fit. It was held that "the
childbirth endangers the lives of some women, voluntary abortion 'at any time and
place' regardless of medical standards would impinge on a rightful concern of the
society. The woman's health is part of that concern as is the life of the foetus after
 quickening. These concerns justify the State in treating the procedure as medical one."

 The Court in Planned Parenthood of Southeastern Pennsylvania v. Casey affirmed the central
holding of (1973) US SC , Roe V Wade - that a person has a right to abortion until viability. The
Roe decision defined "viable" as being "potentially able to live outside the mother's womb,
albeit with artificial aid," adding that viability "is usually placed at about seven months (28
weeks) but may occur earlier, even at 24 weeks."
Furthermore, various statutes in India have recognized the unborn fetus as a legal person for
subject to the live birth requirement. One such instance is of the Transfer of Property Act
(Transfer of property Act 1882, s 13, Transfer for benefit of unborn person- Where, on a transfer
of property, an interest therein is created for the benefit of a person not in existence at the date
of the transfer, subject to a prior interest created by the same transfer, the interest created for
the benefit of such person shall not take effect, unless it extends to the whole of the remaining
interest of the transferor in the property.)
Section 20 of the Hindu Succession Act, 1956 has conferred a right to succeed to the father’s
estate on a child who was in the mother’s womb when the father died.
In case Webster v. Reproductive Health Services, the supreme court upheld a Missouri statute
which declared that “the life of each human being begins at conception”, and that ‘unborn
children have protectable interest in life, health and well-being’.

in the case of Suchita Srivastava and Another v. Chandigarh Administration - (2009)9 SCC 1. In
that case, the judgment of the Punjab and Haryana High Court, directing the termination of the
pregnancy of a mentally retarded orphan girl of about nineteen to twenty years (as per the
ossification test), caused by rape was set aside. While doing so, the Supreme Court took into
consideration the difference between "mental retardation" and "mental illness" and the
aspect that, though the girl was mentally retarded, she had given her consent to have the baby
and was physically capable of going through the childbirth.

Also, on a different note, Mohini is still legally speaking, not a transgender yet as her SRS has not been
completed yet.

CHANDRAKANT JAYANTILAL SUTHAR V STATE OF GUJARAT (over 24 weeks, 14 year old girl, doctor
allegedly raped her) - “This Court would have to admit that, to arrive at a decision in a case such as the
present one involving a minor victim of rape, saddled with an unwanted pregnancy with all its
physical, mental, emotional and social implications on the one hand and the statutory provisions of law
on the other hand, is a difficult task. There is not the remotest doubt that the law of the land is to
be upheld, obeyed and applied and every judge of the High Court is bound by a
constitutional oath to do so. However, there are times when a poignant situation arises in a case where
the application of the law gives rise to a situation that would have physical, mental and social
connotations upon the life of an innocent girl. Nevertheless, the law is the law, and has to be obeyed.”
A distinct argument : Another relevant aspect is that in the present case, there is no opinion of
any registered medical practitioner that the continuance of the pregnancy of the victim would involve
a risk to her life or grave injury to her physical or mental health. Nor has it been opined
that if the child were born, it would suffer from any physical or mental abnormalities as to be
seriously handicapped. In any case, even under the above situations, an opinion to terminate the
pregnancy can only be formed if the length of the pregnancy does not exceed twenty weeks. In the
present case, the length of the pregnancy now exceeds twenty four weeks. There is no medical
opinion that the termination of the pregnancy is immediately necessary to save the life of the
pregnant woman as per Section 5 of the MTP Act. Viewed from every angle, the provisions of
the MTP Act do not permit the termination of the pregnancy of the victim.”

Can be used for the prayer “The State Government can be requested to provide help for herself and
her child and its upbringing. There is also the factor of social stigma, society being as it is. This
has to be countered boldly by all concerned. Whatever has happened to the victim and whatever its
consequences, are not her fault at all. She cannot, and should not, be blamed for it. She needs
the support of the authorities and enlightened citizens of society, more than anything else. She, too,
deserves to be educated, dream her dreams, and, in times to come, have a home and family of her
own, just like any other young girl. Humanity and society should assist, her and others like her, in this
regard.” Even monetary compensation.

Argument given by the state in the asha ben case( where the thing was caused by rape and the
pregnancy was at 27 weeks, hence not granted) , can be used in the present case “On the other hand,
Mr. Mitesh Amin, the learned Public Prosecutor and Mr. N.J.

Shah, the learned Additional Public Prosecutor appearing for the State vehemently

opposed this application and submitted that even assuming for the moment that the

pregnancy is on account of an act of rape, still the law does not permit the termination

of the pregnancy if the foetus is of more than twenty weeks. It was submitted that

whatever may be the ultimate outcome, the applicant will have to deliver the child. Mr.

Amin, the learned Public Prosecutor submitted that the State would take care of the

applicant so far as delivery of the child is concerned and if she is disowned ultimately by

the husband and her family members, then the State would see to it that the applicant

is provided adequate shelter and protection with the necessary financial aid.”

This can be used to state that “Assuming that the

pregnancy for whatever reason had been against the wish and desire of the applicant,

the intriguing aspect in the present case is that by the time the applicant chose to file

this writ petition i.e. on 31/3/2015, the pregnancy had been of about 27 weeks as is

borne out from the medical reports. Although it is the case of the applicant that since

she was in unlawful confinement of the accused persons she had no opportunity to get

the pregnancy terminated within the statutory time period as provided in the Act, yet I

am unable to accept such submission as the law does not permit the termination of

pregnancy beyond 20 weeks except in cases where the life of the mother is in danger.”

This case law can be used to extend the argument that the exceptions of section 3 and 5 do not apply
here in this case - “I may quote with profit a decision of the Supreme Court in the case of Rohitash

Kumar & Ors. v. Om Prakash & Ors., MANU/SC/0936/2012 : AIR 2013 SC 30.

"22. The Court has to keep in mind the fact that, while interpreting the

provisions of a Statute, it can neither add, nor subtract even a single word.

The legal maxim "A Verbis Legis Non Est Recedendum" means, "From the

words of law, there must be no departure". A section is to be interpreted by

reading all of its parts together, and it is not permissible, to omit any part

thereof. The Court cannot proceed with the assumption that the legislature,

while enacting the Statute has committed a mistake; it must proceed on the

footing that the legislature intended what it has said; even if there is some

defect in the phraseology used by it in framing the statute, and it is not open

to the court to add and amend, or by construction, make up for the

deficiencies, which have been left in the Act. The Court can only iron out the

creases but while doing so, it must not alter the fabric, of which an Act is

woven. The Court, while interpreting statutory provisions, cannot add words

to a Statute, or read words into it which are not part of it, especially when a
literal reading of the same, produces an intelligible result.

Attached cases (on the aforementioned point) – Nalinakhya Bysack v. Shyam Sunder Haldar and Ors.,
MANU/SC/0076/1953 : AIR 1953 SC 148;

Sri Ram Ram Narain Medhi v. State of Bombay,MANU/SC/0132/1958 : AIR 1959 SC 459;

M. Pentiah and Ors. v. Muddala Veeramallappa and Ors., MANU/SC/0263/1960 : AIR 1961 SC 1107;

The Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya and Ors.,
MANU/SC/0829/1987 : AIR 1987 SC 849;

and Dadi Jagannadham v.Jammulu Ramulu and Ors., MANU/SC/0475/2001 : (2001) 7 SCC 71) : (AIR

2001 SC 2699 : 2001 AIR SCW 3051).

The Statute is not to be construed in light of certain notions that the

legislature might have had in mind, or what the legislature is expected to

have said, or what the legislature might have done, or what the duty of the

legislature to have said or done was. The Courts have to administer the law

as they find it, and it is not permissible for the Court to twist the clear

language of the enactment, in order to avoid any real, or imaginary hardship

which such literal interpretation may cause."