Bombay High Court
Xxx vs State Of Maharashtra on 26 May, 2023
Bench: Abhay Ahuja, M.M.Sathaye
2023:BHC-AS:14412-DB
5-WP-ST-9701-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 9701 OF 2023
'XXX' )...PETITIONER
Vs.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Aarati Shinde, Advocate for Petitioner.
Ms.M.H.Mhatre, APP for Respondent - State.
CORAM : ABHAY AHUJA AND
M.M.SATHAYE, JJ.
DATE : 26 MAY 2023
(VACATION COURT)
JUDGMENT:(PER COURT)
1. Rule. With the consent of the counsel for the parties, Rule is made returnable forthwith and heard finally.
2. The Petitioner is referred to as 'XXX' herein to keep her identity confidential.
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3. This Petition is filed by Petitioner, who claims to be a victim of rape, in her 23rd week of pregnancy for permission to undergo medical termination of pregnancy.
4. It is mentioned in the Petition that FIR No. 0466/2023 was lodged at Mumbra Police station, District Thane under Sections 376(2)(n) and 506 of the Indian Penal Code (IPC). It is the case of the Petitioner that since the year 2016, Petitioner was friendly with the accused. Petitioner got married to one Mr. Ajay Dhanji Sumra in the year 2018 and from the said wedlock is blessed with a baby boy. It is alleged that on 7 th October 2022, at around 7.30 pm in the evening, Petitioner and her son were mercilessly beaten by her husband under the influence of alcohol. Therefore, Petitioner called her friend (the accused herein) at 12.00 a.m. in the midnight and narrated the entire incident to him, upon which the accused asked Petitioner to come to his home along with her son. Accordingly Petitioner left her home and went to the residence of accused with her son and started residing with him. On 23rd October 2022, the accused told Petitioner that he was avk 2/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 ::: 5-WP-ST-9701-2023.doc willing to marry her and started convincing her to marry him. He further assured that he would take care of her as well as her son. It is alleged that, thereafter, the accused would regularly have physical intercourse with her and being helpless, Petitioner could not resist the same. After few weeks, accused rented a room for Petitioner and her son nearby his home and even there Petitioner was subjected to physical intercourse by the accused as and when desired by him. On missing her monthly cycle, Petitioner got herself tested with pregnancy kit and found that she got pregnant from accused. When Petitioner informed the said fact to the accused, he told her that he knew one doctor and would take her to him. Trusting the words of the accused, Petitioner waited patiently but accused did not take any efforts to resolve the said issue. Finally, in the third month of pregnancy, Petitioner again asked the accused about getting married, to which the accused gave evasive answers. It is alleged that accused even threatened her with dire consequences, if she disclosed anything to anyone about them. It is alleged that on 23 rd April 2023, Petitioner experienced unbearable pain upon which she called her mother at avk 3/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 ::: 5-WP-ST-9701-2023.doc Chembur and narrated the entire incident to her. On 26th April 2023 Petitioner's mother called the accused and asked him to meet her at Ghatkopar but the accused refused to meet her and disconnected the call. On 27 April 2023 accused called the mother of Petitioner and met her and Petitioner. On enquiring by the Petitioner's mother about performing marriage with Petitioner, the accused blatantly refused for the same and also said that the child which the Petitioner conceived did not belong to him. Thereafter, the Petitioner approached Mumbra Police Station and filed the FIR on 28 April 2023 against the accused under Sections 376(2)(n) and 506 of the IPC.
5. It is submitted that the current pregnancy has not only brought grave mental anxiety to Petitioner but she would also not be in a position to take care of the child, if born. As such, Petitioner does not wish to continue with the pregnancy and wants to terminate the pregnancy. The ultra sonography report dated 24 April 2023 showed the average gestational age of the foetus as 19 weeks 4 day. As per the said calculation, Petitioner avk 4/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 ::: 5-WP-ST-9701-2023.doc has completed 23 weeks of her pregnancy on 26 May 2023 and as per Section 3 of the Medical Termination of Pregnancy Act, 1974 (the "Act") termination of such pregnancy can be allowed considering the circumstances of the case.
6. On 22nd May 2023, this Court passed the following order:
"1. By this Petition, Petitioner is seeking medical termination of pregnancy on the ground that she is 23 weeks pregnant being a victim of rape and not in a condition to keep the foetus. The Petitioner is referred to as 'XXX' herein to keep her identity confidential.
2. Ms. Aarati Shinde, learned counsel for Petitioner submits that considering the advanced stage, the matter needs to be urgently attended.
3. Having heard learned counsel and having perused the proceedings we request Dean of Sir J.J. Group of Hospitals, Mumbai to constitute a Medical Board consisting of (a) a Gynaecologist, (b) a Paediatrician, (c) a Radiologist or Sonologist and (d) such other number of members as the Dean may deem necessary in accordance with law.
4. The Petitioner shall appear before the Medical Board on 23 May 2023 at 11.00 a.m. The Medical Board shall rd examine the fitness of Petitioner and the foetus for undergoing medical termination of pregnancy and submit its report in a sealed envelope not later than Friday, 26 th May 2023.
5. Learned APP to communicate this order to Dean of the Hospital.
6. List the matter on 26th May 2023."avk 5/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 :::
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7. Today, the report of the Expert Committee of Sir JJ Group of Hospitals and Grant Govt. Medical College, Mumbai is tendered before us in sealed envelope. The opinion in the report under cover letter dated 24 May 2023 of the Committee reads thus:
"After examining the patient, the committee has found that at present the mother is by date 20 weeks and by scan 23.1 weeks which is under the legal limit of MTP as per The Medical Termination of Pregnancy (Amendment) Act 2021 (MTP ACT). Also the patient has filed complaint under section IPC 376 and sought High Court Order for Medical Termination of Pregnancy.
Thus the committee is of the opinion that mother can undergo Medical Termination of Pregnancy at any tertiary institute of her desire.
At present the mother is physically and mentally fit to undergo Medical Termination of Pregnancy.
However, final opinion regarding the fitness can be decided upon depending on the clinical condition at the time of the procedure."
8. We have heard Ms.Shinde, the learned Counsel for Petitioner and Ms.Mhatre, the learned APP for Respondent-State and perused the aforesaid report and given our anxious consideration to the facts of this case as well as the committee opinion. avk 6/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 :::
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9. It is clear from the opinion of the committee that after examining the Petitioner, the committee has found the mother viz. Petitioner to be physically and mentally fit to undergo medical termination of pregnancy.
10. Section 3 of the Medical Termination Pregnancy Act, 1971 ("MTP Act")reads as under:-
"3.When pregnancies may be terminated by registered medical practitioners.--
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that--avk 7/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 :::
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(i) the continuance of the pregnancy would involve a risk to the life ofthe pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.
Explanation 1.-- For the purposes of clause ( a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.--For the purposes of clauses ( a) and ( b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.
(2B) The provisions of sub-section ( 2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a avk 8/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 ::: 5-WP-ST-9701-2023.doc Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.
(2D) The Medical Board shall consist of the following, namely:--
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in Official Gazette by the State Government or Union territory, as the case may be.".
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.
(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a[mentally ill person], shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
11. The Supreme Court in the case of Suchita Srivastava & Anr. vs. Chandigarh Administration1 has observed that for a woman to have reproductive choice is an in-segregable part of her personal 1 (2009) 9 SCC 1 avk 9/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 ::: 5-WP-ST-9701-2023.doc liberty as envisaged under Article 21 of the Constitution of India and that she has a sacrosanct right to have her bodily integrity while allowing medical termination of pregnancy. In our view, this principle would squarely apply to the case of Petitioner.
12. Considering the above discussion, forcing Petitioner to continue with the pregnancy would be a serious affront to her fundamental right to exercise reproductive choices, to her bodily integrity and her dignity. Therefore, although the statutory period of twenty four weeks is not over, however, in view of our above observations, we are inclined to allow the Petitioner to undergo medical termination of pregnancy.
13. In view of the above discussion, we pass the following order:
ORDER
(i) Petitioner is permitted to undergo medical termination of pregnancy as per Expert Committee's report on 24 May 2023, at JJ Hospital, Mumbai.avk 10/12 ::: Uploaded on - 26/05/2023 ::: Downloaded on - 27/05/2023 18:22:57 :::
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(ii) The Dean of the JJ Group of Hospitals, Mumbai shall ensure that the procedure is performed at a place which satisfies all the requirements of the MTP law and the procedure shall be conducted by the Medical Practitioner who satisfies the conditions laid down under the rules.
(iii) The blood sample and tissue sample of the foetus shall be preserved for the purpose of carrying out necessary medical tests including DNA and other tests. The Investigating Officer conducting investigation shall ensure that the samples are forwarded to Forensic Science Laboratory and the samples shall be preserved for the purpose of trial of the offence registered under FIR no. 0466 of 2023.
(iv) In case, the child is born alive, the Medical Practitioner who conducts the procedure will ensure that all necessary medical facilities are made available to such child for saving life.
(v) In case, the child is born alive and if the petitioner and her parents are not willing or are not in a position to take responsibility of such a child then the State and its agencies will have to assume full responsibility for such child.
(vi) Rule is made absolute in the aforesaid terms.
(vii) No order as to costs.
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(viii) All concerned to act on an authenticated copy of this order.
Learned AGP is directed to forward an authenticated copy of this order to the Investigating Officer conducting investigation of FIR No.0466 of 2023.
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