Madhya Pradesh High Court
{Name-redacted} vs The State Of Madhya Pradesh on 13 November, 2018
THE HIGH COURT OF MADHYA PRADESH
1
WP No. 25126/2018
( {Name-redacted} VS THE STATE OF M.P. & OTHERS)
Gwalior, Dated : 13/11/2018
Shri Arun Dudawat, learned counsel for the
petitioner.
Shri Yogesh Singhal, learned Government Advocate
for the respondents-State.
Heard finally with the consent of both the parties.
1. In this petition under Article 226/227 of the Constitution of India, petitioner has approached this Court for direction to the respondents for terminating pregnancy who is allegedly a rape victim. In addition, the petitioner has prayed for issuing direction to the respondents to preserve the foetus to enable it for DNA test.
2. Case of the petitioner is that a report was lodged by her before the Police Station Sirol, District Gwalior for offence punishable under Sections 376, 294, 506 and 417 of IPC at Crime No. 125/2018. During investigation, petitioner came to know about the pregnancy and medical examination was conducted by the Registered Medical Practitioner who gave the report of pregnancy as positive. Since continuance of pregnancy would cause grave injury to mental health of the petitioner and would create a great mental agony for her entire life and may also invite socio-economic problems, therefore, she submitted an application before respondent No.2 seeking permission to terminate her pregnancy under the THE HIGH COURT OF MADHYA PRADESH 2 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) provisions of Section 3,4 and 5 of the Medical Termination of Pregnancy Act 1971 and rules made thereunder. It is further submitted that according to Article 21 of the Constitution of India, she has right to live with dignity and with personal liberty and there can not be any restriction whatsoever on the exercise of reproductive choices. Admittedly the petitioner is above the age of 18 years.
3. This Court vide order dated 30/10/2018 directed respondent No.4/ Chief Medical and Health Officer, Moti Mahal, Gwalior (M.P.) to constitute a team consisting two lady medical practitioners (lady gynecologist) to get the petitioner medically examined to ascertain whether at this stage, the pregnancy can be terminated or not. Respondents in compliance of the aforesaid order has brought on record the medical examination report submitted by duly constituted Committee vide Document No. 5725/2018 which is reproduced herein below :-
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4. The Medical Termination of Pregnancy Act, 1971 (for brevity 1971 Act) provides for termination of THE HIGH COURT OF MADHYA PRADESH 3 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. The relevant sections 3, 4 and 5 of the said 1971 Act are reproduced below for ready reference and convenience:-
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 twelve weeks if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are. Of opinion, formed in good faith, that,-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. THE HIGH COURT OF MADHYA PRADESH 4 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) (3) In determining whether the continuance of 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 reasonable 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 lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.
4. Place where pregnancy may be terminated.-No termination of pregnancy shall be made in accordance with this Act at any place other than,- (a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government.
Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.]
5. Sections 3 and 4 when not to apply.- (1) The provisions of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
THE HIGH COURT OF MADHYA PRADESH 5 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) (4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
Explanation 1.-For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.-For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.]
5. In view of the aforesaid, the termination of pregnancy is permissible where pregnancy does not exceed 20 weeks and if such termination is recommended by at least two registered medical practitioners who are of the opinion formed in good faith that continuance of pregnancy would involve risk to the pregnant woman.
6. Explanation 1 to section 3 (2) enlarges the definition of grave injury to mental health contemplated by section 3 (2) (b)(i) of 1971 Act, to include anguish suffered by a rape victim.
7. Thus the right interpretation of Explanation 1 to section 3 (2) is that even if a rape victim carrying pregnancy not exceeding twenty weeks is recommended by at least two registered medical practitioners to be not facing risk of life or grave injury solely due to pregnancy, THE HIGH COURT OF MADHYA PRADESH 6 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) even then the anguish which the rape victim suffers per se is sufficient to constitute grave injury to the mental health of the pregnant woman (victim of crime of rape).
8. In case of Meera Santosh Pal & Others Vs. Union of India and Others, reported in 2017(I) MPWN 44, the Apex Court has permitted the termination of pregnancy even after 24 weeks. Relevant portion of the aforesaid judgement is reproduced below:
"The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children....." The crucial consideration in the present case is whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though, the pregnancy is into the 24th week, having regard to the danger to the life and the certain inability of the fetus to survive extra uterine life, we consider it appropriate to permit the petitioner to THE HIGH COURT OF MADHYA PRADESH 7 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) terminate the pregnancy. The overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it. "
9. In recent judgment passed by the constitution bench of the Supreme Court in case of Murugan Nayakkar Vs. Union of India & Others, passed in W.P(Civil). No.749/2017 the Court has permitted termination of pregnancy of a 13 year old victim of rape and sexual 7 abused, considering the trauma which she has suffered. Relevant portion of the aforesaid judgement is reproduced below:
"The petitioner who is a 13 years old girl and a victim of alleged rape and sexual abuse, has preferred this writ petition for termination of her pregnancy. When the matter was listed on 28.8.2017, this Court has directed constitution of a Medical Board at Sir J.J. Group of Hospitals, Mumbai. Be it noted, this Court had also mentioned the composition of the team of doctors. The petitioner has appeared before the Medical Board on 1.9.2017 and the Medical Board that has been constituted by the order of this Court expressed the opinion Signature Not Verified Digitally signed by GULSHAN KUMAR that the termination of pregnancy should be carried out. That ARORA Date: 2017.09.06 18:28:22 IST Reason: apart, it has also been opined that termination of pregnancy at this stage or delivery at term will have equal risks to the mother. The Board has also expressed the view that the baby born will be preterm and will have its own complications and would require Neonatal Intensive Care Unit (N.I.C.U.) admission."
10. In the light of the aforesaid law and judgments, THE HIGH COURT OF MADHYA PRADESH 8 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) considering age of the girl to be more than 18 years, trauma and agony which she has suffered and keeping in view the report of medical Board constituted by this Court vide order dated 30/10/2018, this Court is of the opinion that prayer made by the petitioner deserves to be allowed and is accordingly allowed. The case of the petitioner is covered under explanation of sub-section (2) of Section 3 of the Act, 1971. The respondent Nos. 4 and 5 are directed to carry out termination of pregnancy immediately if health condition of the girl i.e. the petitioner permit him to do so. The Doctors specialized in the filed are the best experts take decision about health condition of the girl before and after termination of the pregnancy. This Court is issuing directions only on the basis of the report of the duly constituted Medical Board and in view of the law laid down by the Apex Court in that cases referred hereinabove which shall be subject to health condition and the same shall be done in accordance with law. Respondent Nos. 4 and 5 are directed to take immediate steps for termination of pregnancy within seven days positively and do the needful. It is needless to mention that Head of the Department of Gynecology, Head of Department Anesthesia and all other specialized doctors shall remain present at the time of termination of pregnancy. After the termination of pregnancy is carried out, the State of Madhya Pradesh shall ensure post operative care of girl.
THE HIGH COURT OF MADHYA PRADESH 9 WP No. 25126/2018 ( {Name-redacted} VS THE STATE OF M.P. & OTHERS) The respondents are further directed that in the event pregnancy is terminated they will keep DNA sample of foetus and shall also keep the same in a sealed cover as per procedure prescribed.
With the aforesaid, present writ petition stands allowed.
(S.A.Dharmadhikari) JUDGE Prachi PRACHI MISHRA 2018.11.16 14:23:28 +05'30'