Gujarat High Court
Surjibhai Badaji Kalasva-On Behalf Of ... vs State Of Gujarat on 30 January, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/585/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 585 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE
JUDICIARY.
==========================================================
SURJIBHAI BADAJI KALASVA-ON BEHALF OF HIS MINOR
DAUGHTER....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
==========================================================
Appearance:
MR KUMAR H TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR DHARMESH
DEVNANI, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/01/2018
Page 1 of 52
HC-NIC Page 1 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
ORAL JUDGMENT
1 For centuries, men and women the world over, across the race and creed have asked the question, "Why, God, why?", when disaster strikes. And, "for centuries, the religion has been trying to answer the question - how a Loving or Just God could allow his children to endure such suffering. The question, "Why Bad Things Happen to Good People?"
Torments the soul most during one's hour of grief. However, a convincing answer to the question "Why Bad Things Happen to Good People" continues to elude this Court. The toughest decisions the Judges have to make are really those that involve a potential life changing situation for the litigant.
2 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"14(A) This Hon'ble Court may be pleased to issue appropriate writ, order and/or direction to the respondent authority to terminate the pregnancy of victim who is minor daughter of the petitioner, at the earliest;
(B) This Hon'ble Court may be pleased to issue appropriate writ, order, direction and/or guidelines for the police authorities of State of Gujarat to act in an effective and speedy manner when rights of minor victims are concerned and also to inform such victims and their family members of their right regarding termination of unwanted pregnancy in a given case;
(C) This Hon'ble Court may be pleased to issue appropriate writ, order and/or direction to judicial authorities of State of Gujarat for speedy disposal of applications, wherein, rights of minor victims are concerned and to ensure that not a single unnecessary adjournment are granted in such sensitive cases;
(D) This Hon'ble Court may be pleased to grant such other and further relief and/or order in the interest of justice in favor of the petitioner."
3 The facts giving rise to this writ application may be summarised as Page 2 of 52 HC-NIC Page 2 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT under:
3.1 The minor daughter of the writ applicant aged 13 years fell prey to the sexual lust of the accused against whom a First Information Report came to be lodged on 18th December 2017 before the Vijaynagar Police Station, District: Sabarkantha bearing C.R. No.I83 of 2017 for the offence punishable under Sections 376(1) of the Indian Penal Code and Sections 4, 5(j)(2) and 8 of the Protection of Children from Sexual Offences Act, 2012.
3.2 The accused came to be arrested and is in the judicial custody as on date. The victim is studying in standard 8 th in the Ashram Shala at village: Vadari. The parents of the victim, all of a sudden, noticed certain physical changes in the victim more particularly, the growing of her stomach. The victim also started complaining of pain and discomfort in her stomach. The parents took the daughter to a Government hospital at Vijaynagar and upon medical examination, it was found that the victim was pregnant. During the course of the first medical examination at the Government hospital at Vijaynagar, the foetus was found to be of about 25 to 27 weeks of age. The parents inquired with the daughter in this regard and the daughter for the first time disclosed about the sexual assault laid upon her by the accused.
3.3 The father and the victim filed a joint application being the Criminal Miscellaneous Application No.48 of 2018 in the Court of the Sessions Judge, Sabarkantha at Idar, praying for permission to get the pregnancy terminated. The Incharge Special Judge (POCSO) and 2 nd Additional Sessions Judge, Sabarkantha at Himmatnagar, passed an order dated 18th January 2018 asking a panel of doctors of the Civil Hospital, Himmatnagar to issue a certificate as regards the condition of Page 3 of 52 HC-NIC Page 3 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT the victim as well as the foetus. Pursuant to the order passed by the Special Court below, a team of three doctors conducted the clinical examination of the victim including with other investigations and gave its opinion dated 20th January 2018, which reads as under:
"With Reference to above subject my opinion regarding Pregnancy Termination in his case after clinical examination and investigation is as follows.
USG Findings single live intrauterine foetus with cephalic presentation with maturity according to femur length is 30 weeks 1 day.
1) As the pregnancy is of 30 weeks 1 day, as per the Medical Termination of Pregnancy Act1971 termination of pregnancy is not permissible.
2) However if decision of pregnancy termination is taken, there will be possibility maternal and foetal risk.
Maternal risk in termination of such pregnancy includes:
A) Risk of induction of preterm labour B) Risk of failure of induction of preterm labour as the cervix is not ripe.
C) Abnormal Urerine action.
D) Higher incidence of cesarean section.
E) Higher incidence of maternal infection.
F) Amniotic Fluid Embolism.
3) As the pregnancy has crossed the age of foetal viability, child delivered at this stage will have signs of life and will be preterm.
Preterm child will have all the major systems of body immature which will result in following complications.
A) Low birth weight
b) Respiratory distress syndrome.
Page 4 of 52
HC-NIC Page 4 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
C) Apnoea.
D) Loss of control of respiration
F) Jaundice and kernicterus.
G) Electrolyte imbalance.
H) Septicaemia.
I) Difficulty in maintaining temperature.
J) Difficulty in oral feeding.
Yours faithfully
sd/ sd/ sd/
1. Dr. Shilpa Ninama 2. Dr. Mayur Gandhi 3. Dr. Anil Bariya
(Asst. Professor) (Associate Professor and HOD) (Asst. Professor)
ASSISTANT PROFESSOR ASSISTANT PROFESSOR ASSISTANT PROFESSOR
DEPARTMENT OF OBST. & DEPARTMENT OF OBST. & DEPARTMENT OF OBST. &
GYNECOLOGY GYNECOLOGY GYNECOLOGY
GMERS MEDICAL COLLEGE GMERS MEDICAL COLLEGE GMERS MEDICAL COLLEGE
HIMMATNAGAR HIMMATNAGAR HIMMATNAGAR
3.4 It appears that the Civil Hospital at Ahmedabad also examined the
victim and gave its report dated 19 th January 2018, which reads as under:
"CIVIL HOSPITAL, AHMEDABAD DEPT OF RADIODIAGNOSIS & IMAGING *********************************************************************** Patient: S (name withheld) SURAJIBHAI BADAJI KALASAVA -
(F/13 Yrs)
DeptUnit : Emergency
OPD/IPD No.:18/00027985/ Casualit - EMO1
Report No.U2365/18 dated 19Jan2018 10:25 PM Location: INDOR USG
Clin. Suspicion: Result Dt.:19Jan2018 10:25 PM
Rctp No:
*********************************************************************** USG - Antenatal Brought by : Sunanda ben WPC Batch No:432 Page 5 of 52 HC-NIC Page 5 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT Police Station: Vijaynagar, Sabarkantha EPR NO:480/1/18 LMP : Not known.
• All congenital anomalies can not be detected on USG. Ideal time for anomaly scan is 18 to 22 weeks.
• A Single live Intrauterine fetus is seen with cephalic presentation with following fetal biometry:
• BPD = 75 mm corresponding to 30 weeks 2 days of gestation. • AC = 266 mm corresponding to 30 weeks 5 days of gestation. • FL = 57 mm corresponding to 30 weeks 1 days of gestation. • FCA (Fetal Cardiac Activity0 is present.
• Liquor is adequate.
• No evidence of gross congenital anomaly seen in present study.
Dr. Ami Jani Tutor, Radiology."
4 Before the Special Court could passed any final order, the unfortunate victim along with her father came before this Court with this writ application.
5 On 22nd January 2018, this Court passed the following order:
"1 By this writ application under Article 226 of the Constitution of India, the writ applicant, father of the victim, has prayed for the following reliefs:
14(A) This Hon'ble Court may be pleased to issue appropriate writ, order and/or direction to the respondent authority to terminate the pregnancy of victim who is minor daughter of the petitioner, at the earliest;
(B) This Hon'ble Court may be pleased to issue appropriate writ, order, direction and/or guidelines for the police authorities of State of Gujarat to act in an effective and speedy manner when rights of minor victims are concerned and also to inform such victims and Page 6 of 52 HC-NIC Page 6 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT their family members of their right regarding termination of unwanted pregnancy in a given case;
(C) This Hon'ble Court may be pleased to issue appropriate writ, order and/or direction to judicial authorities of State of Gujarat for speedy disposal of applications, wherein, rights of minor victims are concerned and to ensure that not a single unnecessary adjournment are granted in such sensitive cases;
(D) This Hon'ble Court may be pleased to grant such other and further relief and/or order in the interest of justice in favor of the petitioner.
2 My attention is drawn to a certificate dated 20 th January 2018 issued by (1) Dr. Shilpa Ninama, Assistant Professor, (2) Dr. Mayur Gandhi, Associate Professor and HOD, (3) Dr. Anil Bariya, Assistant Professor of the Obstetrics and Gynecology, the GMRES Medical College, Himmatnagar. The report reads as under:
With Reference to above subject my opinion regarding Pregnancy Termination in his case after clinical examination and investigation is as follows.
USG Findings single live intrauterine foetus with cephalic presentation with maturity according to femur length is 30 weeks 1 day.
1) As the pregnancy is of 30 weeks 1 day, as per the Medical Termination of Pregnancy Act1971 termination of pregnancy is not permissible.
2) However if decision of pregnancy termination is taken, there will be possibility maternal and foetal risk.
Maternal risk in termination of such pregnancy includes:
A) Risk of induction of preterm labour B) Risk of failure of induction of preterm labour as the cervix is not ripe.
C) Abnormal Urerine action.
D) Higher incidence of cesarean section.
E) Higher incidence of maternal infection.
F) Amniotic Fluid Embolism.Page 7 of 52
HC-NIC Page 7 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT
3) As the pregnancy has crossed the age of foetal viability, child delivered at this stage will have signs of life and will be preterm. Preterm child will have all the major systems of body immature which will result in following complications.
A) Low birth weight
b) Respiratory distress syndrome.
C) Apnoea.
D) Loss of control of respiration F) Jaundice and kernicterus.
G) Electrolyte imbalance.
H) Septicaemia.
I) Difficulty in maintaining temperature.
J) Difficulty in oral feeding.
3 Thus, it appears that the foetus, as on date, is of about thirty weeks. The three doctors are of the opinion that as the pregnancy has crossed the age of foetal viability, the child delivered at this stage may have signs of life and may be preterm. If this Court has understood the report correctly with a little understanding about medical science, then there are two possibilities: First, the termination may put an end to the life of the foetus, or it is possible that while trying to terminate the foetus, the baby would take birth, but with signs of life. This Court would like to understand something more in this regard. Three doctors named above are requested to personally remain present before this Court on 23rd January 2018 at 11:00 A.M. The assistance of the three doctors is necessary before any further order is passed in this regard. Mr. Mitesh Amin, the learned Public Prosecutor is requested to convey to the three doctors to remain present on 23rd January 2018.
4 Post this matter on 23rd January 2018 as Item No.1 on the Board."
6 Pursuant to the order passed by this Court referred to above, Dr. Shilpa Ninama, Assistant Professor and Dr. Anil Bariya, Assistant Professor of the Department of Obstetrics and Gynecology, the GMRES Medical College, Himmatnagar, remained present before this Court.
Page 8 of 52
HC-NIC Page 8 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
Both the doctors made themselves very clear that it is not at all advisable to go for termination of the pregnancy as the same would put the life of the victim as well as the child in the womb in danger. Both the doctors laid emphasis on the fact that the pregnancy had reached upto 30 weeks. Even if they would go for termination, the child, which may be delivered, may show signs of life and would be preterm. In such circumstances, their opinion was to the effect that the victim should continue with the pregnancy and deliver the baby.
7 On 23rd January 2018, the following order was passed by this Court:
"1. Pursuant to the order passed by this Court dated 22 nd January, 2018, Dr. Shilpa Ninama, Asst. Professor and Dr. Anil Bariya, Asst. Professor of the Obstetrics and Gynecology, GMRES Medical College, Himmatnagar are present in the court today. Both the doctors are of the view that, at this point of time,. if the pregnancy has to be terminated, then 99%, the victim would deliver a preterm baby. According to both the learned doctors, they would, first, try to induct labour and observe the victim for 48 hours. If the victim gets into labour within 48 hours, then there could be a possibility of a normal delivery, otherwise, the doctors will have to go for cesarean, and performing cesarean on a 14 year old victim, will also be a huge risk so far as the life of the victim is concerned. Both the doctors are of the view that the idea of termination of the pregnancy should be ruled out.
2. Considering the age of the victim, the trauma which she has suffered because of the sexual abuse and the agony she is going through at present, I am of the view that let the victim be examined once again by a panel of five doctors of the civil hospital at Ahmedabad. The panel of five doctors should consist of (i) Professor & HOD, Department of Obstetrics & Gynecology; (ii) Professor & HOD, Department of Neurology; (iii) Professor & HOD, Department of Pediatric; (iv) Professor & HOD, Department of Radiology and (v) Professor & HOD, Department of Psychiatry.
3. A team of five doctors, as noted above, shall be constituted at the earliest preferably by evening today and the team shall examine the victim and give its report to the court by tomorrow afternoon.
Page 9 of 52
HC-NIC Page 9 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
4. I am informed that the victim, at present, is at her hometown, i.e., village Vadri, Taluka: Vijaynagar, District: Sabarkantha.
5. Mr. S.R. Kevat, serving as a Legal cum Probation Officer, District Child Protection Unit, Sabarkantha is also present in the court today. Mr. Kevat shall take all necessary steps at the earliest to see that the victim is brought to the Civil Hospital, Ahmedabad preferably by afternoon today. Once she is brought at the Civil Hospital, let the team of the doctors, thereafter, examine her in their own way. Let the report be placed before this Court by tomorrow 2:30 p.m. I am grateful to Dr. Shilpa Ninama as well as Dr. Bariya for appearing before this Court and expressing their opinion.
6. A copy of this order be furnished at the earliest to Mr. Amin, the learned Public Prosecutor so that he can start taking appropriate steps in the matter.
7. One copy of the order shall also be furnished to Mr. Trivedi, the learned counsel appearing for the petitioner.
8. Post this matter tomorrow, i.e., on 24.01.2018 as Item No.1."
8 Pursuant to the order passed by this Court dated 23rd January 2018 referred to above, a team of five doctors conducted the clinical examination of the victim and gave its report dated 24 th January 2018, which reads as under:
"CIVIL HOSPITAL AHMEDABAD 24TH JANUARY, 2018.
Opinion of panel doctors as requested by respected Gujarat High Court oral order on 2312018.
Special Criminal Application direction no.585/2018.
The following panel doctors of B.J. Medical Colleges and Civil Hospital Ahmedabad have invested the case.Page 10 of 52
HC-NIC Page 10 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT
1. Dr. Mahima Jain, Prof. & HOD, Obs & Gynec.
2. Dr. Bela H Shah, Prof. & HOD, Pediatrics
3. Dr. P.A. Amin, Prof. & HOD, Radiology
4. Dr. Meenaxi, N. Parikh, Prof. & HOD, Psychiatry
5. Dr. Bipin R. Patel, Prof. & HOD, Neorology.
1. After history and clinical examination, she is found to have 7 & half months pregnancy which is approximately around 31 weeks. Her blood investigation, BP, and other findings are normal. Medical termination of pregnancy at this juncture is not permissible under MTP Act. Secondly, it is advisable to follow natural course for benefit of mother and baby. Since any intervention done at this juncture will lead to complications to mother, both during and after delivery as operative chances also cannot be ruled out. Also survivability of fetus at this juncture with baby weight of around 1.7 kg is high as age of viability has been crossed. Hence it is sound advice to continue pregnancy with proper care and under experts and follows natural course of pregnancy till full term.
2. From the available reports, the pregnancy is 31 weeks and baby weight of 1.7 kg. The survival of the baby at delivery is 7580% in the best of circumstances with no added risk factor. The chances of survival will further decrease depending on added risk factors, both of peri partum condition and condition of new born at delivery.
3. The ultra sonography of this patient was done on 2312018 and the report of this ultra sound study is attached along with this.
4. No major depressive anxiety features are present currently but due to border line intellectual functioning at the chronological age of 1314, her mental age comes to 1112 years. Therefore the patient is not likely to be able to take care of her new born baby independently.
5. At present, no neurological deficit observed."
9 Dr. Mahima Jain, Professor and H.O.D. of the Obstetrics and Gynecologic, and Dr. Minaxi Parikh, Professor and H.O.D. of Psychiatric of the B.J. Medical College and Civil Hospital at Ahmedabad, remained present before this Court and expressed their opinions that it was not at Page 11 of 52 HC-NIC Page 11 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT all advisable to terminate the pregnancy. According to Dr. Jain, the pelvis of the victim, who is just about 14 years of age, is very small and may not facilitate normal delivery. Dr. Jain explained that a preterm delivery, will have to be carried out through the Caesarean Section. It was further explained to the Court that considering the age of the foetus i.e. almost 31 weeks, the chances of the feotus coming out alive are very high. A normal gestation period is 40 weeks or 9 months. According to the Doctors, the feotus is fully found after 27 weeks.
10 The Doctors tried to explain that at this stage, a preterm delivery will lead to many other complications for both the mother as well as the infant. The infant will suffer a lot because it will have to be put in a Neonatal Care, and thereafter, the baby would be observed. If the baby is not accepted or given up by the pregnant minor, then the only option available would be to hand over the baby to the State for legal guardianship.
● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT:
11 The learned counsel appearing for the writ applicant submitted
that as there cannot be any termination of pregnancy without the express and voluntary consent of the woman, in the same manner, the pregnancy should also not be forced to be continued without her voluntary consent, especially when the facts of the case show that the very act which led to the conception was an involuntary act. It is submitted that although the protection of right of unborn child is an obligation cast upon the State under the Constitutional provisions, yet in view of the unambiguous language of Section 5 of the Medical Termination of Pregnancy Act, 1971 (for short, the "M.T.P. Act"), the conflict between the right to life of mother and the right to life of unborn Page 12 of 52 HC-NIC Page 12 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT child would yield in favour of the right to life of mother. To force a woman to continue with the pregnancy, which she does not want to continue, is an infringement of right to privacy and dignity of the woman as well as an infringement of the right to a healthy and dignified life of the nascent life in her womb. It was argued by the learned counsel that the choice available to the victim under the provisions of law was snatched away from her due to the ignorance exhibited by the medical experts and the investigating officers at the relevant stages. The victim is beseeching to terminate the pregnancy, she does not want to carry, but she is being denied this because of a helpless exercise only on account of the gestation period of pregnancy running beyond 20 weeks. The learned counsel submitted that the parents of the victim are also in a very precarious situation and as the pregnancy is the result of rape, the termination could have been done by the medical officers of the Government Hospital at Vijaynagar itself when the victim was examined for the first time, as at that point of time, the age of the foetus was just under 20 weeks. No permission was required from the Court and only the consent of the minor victim and her guardian, as required under the law, was needed.
12 The learned counsel appearing for the writ applicant placed reliance on the following two decisions:
(1) Bashir Khan vs. State of Punjab and Haryana and another [2014 (4) RCR (Criminal) 148] (2) Vijender vs. State of Haryana and others [2015 (1) RCR (Civil) 163]
13 In both these cases, the Punjab and Haryana High Court examined Page 13 of 52 HC-NIC Page 13 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT and discussed the issue of wastage of time in approaching the Court and the matters of consent of minor with regard to the termination of her pregnancy. The learned counsel submitted that the authorities, at the relevant stages, be they the police officers, medical officers, lawyers or the Courts, should be wellversed with the provisions of law. As the time is the essence of availing the remedy of medical termination of pregnancy in the exigent situations, the importance of availing the same, should be communicated to the victim and her family members immediately. It was further argued by the learned counsel, as mentioned in the judgments, passed by the Punjab and Haryana High Court in the case of Bashir Khan (supra) and Vijrender (supra), the judicial officers should be proactive and in the eventuality of filing of such applications instead of technical dismissal of the same, plea of the woman should be forwarded to the medical board for an appropriate action immediately. Even though the provisions of law warrant the consent of the legal guardian in cases of minority and/or mental illness of the woman, but still the efforts should be made to give due regard to the real desire and want of the woman, who is carrying the pregnancy.
14 In the last, the learned counsel placed strong reliance on one order passed by the Supreme Court in the case of Murugan Nayakkar vs. Union of India and others [Writ Petition (Civil) No.749 of 2017 decided on 6th September 2017], wherein a Bench of three Judges observed as under:
"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 Page 14 of 52 HC-NIC Page 14 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT this Court expressed the opinion that the termination of pregnancy should be carried out. That 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.
We have heard Ms. Sneha Mukherjee, learned counsel appearing for the petitioner, Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra.
Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.
In view of the aforesaid premise, we direct the petitioner to remain present at the Sir J.J. Group of Hospitals, Mumbai in the evening of 7.9.2017 so that the termination of pregnancy can be carried out preferably on 8.9.2017. Mr. Nishant R. Katneshwarkar shall apprise the Dean of Sir J.J. Group of Hospitals, Mumbai so that he/she can make necessary arrangements for termination of the pregnancy.
A copy of the order passed today be handed over to learned counsel for the petitioner and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra.
The writ petition is accordingly disposed of. There shall be no order as to costs."
15 In such circumstances referred to above, the learned counsel submitted that having regard to the opinion expressed by the Doctors, he would leave upon this Court to take an appropriate decision keeping in mind the interest of the victim and the baby in the womb.
● SUBMISSIONS ON BEHALF OF THE STATE:
16 Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State contended that having regard to the opinion expressed by the two Page 15 of 52 HC-NIC Page 15 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT panel of doctors, it would not at all be advisable to allow the pregnancy to be terminated at this stage. Mr. Amin submitted that termination of a 31 weeks foetus, almost a fully formed baby, is not the best option for any pregnant woman even if the woman is a victim of rape. There is a risk to her life involved. Mr. Amin submitted and ensured this Court that all that is necessary to be done at the end of the State in the interest of the victim and the foetus including her family will be done at the earliest and till the last. Mr. Amin submitted that he has no words to express the mental pain and agony which the victim must be undergoing. However, the Court should not ignore the opinion of the Doctors that the gestation related risk has further increased. If the delivery is conducted at this stage, the chances of child being born alive are almost 99% and the long term complications of a premature birth for the surviving child will have to be weighed.
17 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should direct or grant permission to terminate the pregnancy.
18 Before adverting to the rival submissions canvassed on either side, I must look into the relevant provisions of law.
1. Constitution of India [Articles 21, 39(e), 39 (f), 41, 42, 47 and 51 A(e)]
2. Medical Termination of Pregnancy Act, 1971, (Sections 3,4 and 5)
3. Code of Criminal Procedure,1973 (Sections 53A and 164A)
4. Indian Penal Code, 1860 (Sections 312 to 318) Page 16 of 52 HC-NIC Page 16 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT
5. Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
18.1 It would be apposite to reproduce relevant provisions. Articles, 21, 39 (e), 39 (f), 41, 42 and 47 of the Constitution of India read as under:
"21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.
39. Certain principles of policy to be followed by the State. The State shall, in particular, direct its policy towards securing
(a) to (d) xxxxx
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
41. Right to work, to education and to public assistance in certain cases.The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
42. Provision for just and humane conditions of work and maternity relief.The State shall make provision for securing just and humane conditions of work and for maternity relief.
47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
Page 17 of 52
HC-NIC Page 17 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
51A. Fundamental duties. It shall be the duty of every citizen of India
(a) to (d) xxxx
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women."
18.2 Sections 3, 4 and 5 of the MTP Act read as under:
"Section 3 : When pregnancies may be terminated by registered medical practitioners (1) Notwithstanding anything contained in the Indian Penal Code, 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 subsection (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 to her 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.
Page 18 of 52
HC-NIC Page 18 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
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 of health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in subsection (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 3 ["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.
Section 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 or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee :
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.
Section 5 : Sections 3 and 4 when not to apply (1) The provisions of section 4 , and so much of the provisions of subsection (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a 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.
Notwithstanding anything contained in the Indian Penal Code, 1860 (45 of 1860), the termination of pregnancy by a person who is not a registered Page 19 of 52 HC-NIC Page 19 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years 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. (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."
18.3 Sections 53A and 164A of the Code of Criminal Procedure read as under:
"53A Examination of person accused of rape by medical practitioner
1. When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
2. The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely Page 20 of 52 HC-NIC Page 20 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and".
(v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The exact time of commencement and completion of the examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of SubSection (5) of that section."
164 A. Medical examination of the victim of rape. (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of a such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twentyfour hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her and prepare a report of his examination giving the following particulars, namely:
(i) the name and address of the woman and of the person by whom she was brought;
(ii)the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived Page 21 of 52 HC-NIC Page 21 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT at.
(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of subsection (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.
Explanation. For the purposes of this section, "examination" and "registered medical practitioner" shall have the same meanings as in section 53".
18.4 Sections 312 to 318 of the Indian Penal Code read as under:
"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.
313. Causing miscarriage without woman's consent. Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be Page 22 of 52 HC-NIC Page 22 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT liable to fine.
314. Death caused by act done with intent to cause miscarriage. Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; If act done without woman's consent. And if the act is done without the consent of the woman, shall be punished either with imprisonment for life, or with the punishment above mentioned.
Explanation.It is not essential to this offence that the offender should know that the act is likely to cause death.
315. Act done with intent to prevent child being born alive or to cause it to die after birth.Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
316. Causing death of quick unborn child by act amounting to culpable homicide.Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
317. Exposure and abandonment of child under twelve years, by parent or person having care of it.Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation.This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child die in consequence of the exposure.
Page 23 of 52
HC-NIC Page 23 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
318. Concealment of birth by secret disposal of dead body. Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavors to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
18.5 Chapter 1.1 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 reads as under:
"B. Duties and responsibilities of the Physician in general:
1.1 Character of Physician (Doctors with qualification of MBBS or MBBS with post graduate degree/ diploma or with equivalent qualification in any medical discipline):
1.1.1 A physician shall uphold the dignity and honour of his profession.
1.1.2 The prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. Who soever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals. A physician should be an upright man, instructed in the art of healings. He shall keep himself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life.
1.1.3 No person other than a doctor having qualification recognised by Medical Council of India and registered with Medical Council of India/State Medical Council (s) is allowed to practice Modern system of Medicine or Surgery. A person obtaining qualification in any other system of Medicine is not allowed to practice Modern system of Medicine in any form.
18.6 Chapter 2 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 reads as under:
"2. DUTIES OF PHYSICIANS TO THEIR PATIENTS
Page 24 of 52
HC-NIC Page 24 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
2.1 Obligations to the Sick
2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visits at the hour indicated to the patients. A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician.
2.1.2 Medical practitioner having any incapacity detrimental to the patient or which can affect his performance visàvis the patient is not permitted to practice his profession xxxx to xxxxx 2.5 Engagement for an Obstetric case: When a physician who has been engaged to attend an obstetric case is absent and another is sent for and delivery accomplished, the acting physician is entitled to his professional fees, but should secure the patient's consent to resign on the arrival of the physician engaged."
19 The Supreme Court in the case of Suchita Srivastava and another vs. Chandigarh Administration [AIR 2010 SC 235] has held as under:
"10. ............In this regard we must stress upon the language of Section 3 of the Medical Termination of Pregnancy Act, 1971 [Hereinafter also referred to as 'MTP Act'] which reads as follows : "3. When pregnancies may be terminated by registered medical practitioners :
xxxx to xxxx
11. A plain reading of the abovequoted provision makes it clear that Indian law allows for abortion only if the specified conditions are met..Page 25 of 52
HC-NIC Page 25 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT When the MTP Act was first enacted in 1971 it was largely modelled on the Abortion Act of 1967 which had been passed in the United Kingdom. The legislative intent was to provide a qualified 'right to abortion' and the termination of pregnancy has never been recognised as a normal recourse for expecting mothers. There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. 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 birthcontrol 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. However, in the case of pregnant women there is also a 'compelling state interest' in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.
12. A perusal of the above mentioned provision makes it clear that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a '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' [as per Section 3(2)(i)] or when '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' [as per Section 3(2)
(ii)]. While the satisfaction of one medical practitioner is required for terminating a pregnancy within twelve weeks of the gestation period, two medical practitioners must be satisfied about either of these grounds in order to terminate a pregnancy between twelve to twenty weeks of the gestation period. The explanations to this provision have also contemplated the termination of pregnancy when the same is the result of a rape or a failure of birthcontrol methods since both of these eventualities have been equated with a 'grave injury to the mental health' of a woman. In all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in Section 3(4)
(b) of the MTP Act, 1971. The exceptions to this rule of consent have been laid down in Section 3(4)(a) of the Act. Section 3(4)(a) lays down that when the pregnant woman is below eighteen years of age or is a 'mentally ill' person, the pregnancy can be terminated if the guardian of the pregnant woman gives consent for the same. The only other exception is Page 26 of 52 HC-NIC Page 26 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT found in Section 5(1) of the MTP Act which permits a registered medical practitioner to proceed with a termination of pregnancy when he/she is of an opinion formed in good faith that the same is 'immediately necessary to save the life of the pregnant woman'. Clearly, none of these exceptions are applicable to the present case.
Xxx xxx xxx
13. In the facts before us, the State could claim that it is the guardian of the pregnant victim since she is an orphan and has been placed in Governmentrun welfare institutions. However, the State's claim to guardianship cannot be mechanically extended in order to make decisions about the termination of her pregnancy. An ossification test has revealed that the physical age of the victim is around 1920 years. This conclusively shows that she is not a minor. Furthermore, her condition has been described as that of 'mild mental retardation' which is clearly different from the condition of a 'mentally ill person' as contemplated by Section 3(4)(a) of the MTP Act....."
xxx xxx xxx
15. ...... As mentioned earlier, in the facts before us the victim has not given consent for the termination of pregnancy. We cannot permit a dilution of this requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim. We must also be mindful of the fact that any dilution of the requirement of consent contemplated by Section 3(4)(b) of the MTP Act is liable to be misused in a society where sexselective abortion is a pervasive social evil."
xxx xxx xxx
30. ......In our considered opinion, the language of the MTP Act clearly respects the personal autonomy of mentally retarded persons who are above the age of majority. Since none of the other statutory conditions have been met in this case, it is amply clear that we cannot permit a dilution of the requirement of consent for proceeding with a termination of pregnancy. We have also reasoned that proceeding with an abortion at such a late stage (1920 weeks of gestation period) poses significant risks to the physical health of the victim. Lastly we have urged the need to look beyond social prejudices in order to objectively decide whether a person who is in a condition of mild mental retardation can perform parental responsibilities."
Page 27 of 52
HC-NIC Page 27 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
20 In the case of Bashir Khan (supra), a learned Single Judge of the
Punjab and Haryana High Court has observed as under:
"8. Considering the fact every passing day could harm her physically and mentally, I am of the view that she must be examined by the two medical practitioners attached to the Obstetric and Gynaecology department at PGI and the Director, PGI, Chandigarh, will immediately constitute an ad hoc Medical Board to examine the petitioner on 04.08.2014 and if they are of the view that the length of pregnancy does not exceed 20 weeks, proceed to terminate the pregnancy by appropriate medical procedure. No further direction is necessary from the court before the actual procedure is done, needless to say, care being taken to ensure physical and mental safety of the victim.
9. To ensure that the victim of rape who becomes pregnant does not lose time by applying from court to court, there shall be general instructions given by the Director General of Police to all the police stations who register cases of rape and who come by information that the victim has become pregnant to render all assistance to secure appropriate medical opinions and also provide assistance for admission in Government hospitals and render medical assistance as a measure of support to the traumatized victim. The need to apply to the court for permission would arise only in a situation where there is a conflict of whether the pregnancy must be terminated or not or when the opinions of two medical practitioners themselves differ. It is hardly necessary in a situation where there is no contest and the victim gives her own consent and the guardian also gives consent and there is proof of such pregnancy was resultant to an offence of rape. This instruction shall also be circulated to all the Station Inspectors manning police stations in the State of Punjab"
21 In Janak Ramsang Kanzariya vs. State of Gujarat and another [2012 (7) R.C.R. (Criminal) 2025], this Court has held as under:
"14. Considering the above and keeping in mind the best interest of minor, Janakben, and her parents and likely consequences and innumerable mental, physical, social and economical problems in future if pregnancy is not allowed to be terminated and resulted into birth of a child, this Court has come to the conclusion that the present case falls within the parameters of Sections 3 and 4 of the MTP Act. There is no bar, as provided in Explanation I to subsection (2) of Section 3 of the MTP Act, Page 28 of 52 HC-NIC Page 28 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT for termination of pregnancy in case of a rape victim if such pregnancy is caused by rape.
15. Having regard to the factual and legal position as discussed hereinabove and not disputed by Mr. Shivang Shukla, learned Additional Public Prosecutor for the respondentState, the provisions of the MTP Act, and considering the judgment of the Apex Court in the case of Suchitra Srivastava (supra), this Court is constrained to issue the following directions:
[i] The Civil Surgeon, Government General Hospital, Surendranagar, is directed to conduct medical termination of pregnancy of minor, Janakben, with two qualified Surgeons including Gynecologist, Obstetricion in presence of a qualified physician with due care and precaution so as to avoid any likelihood of untoward harm to the physical or mental health of minor, Janakben, after carrying out necessary medical checkup, forthwith;
[ii] It is clarified that if the concerned panel of doctors are of the opinion that termination of pregnancy would affect the life and safety of minor, Janakben, they shall not terminate the pregnancy, otherwise, they shall terminate the pregnancy.
[iii] The blood group of minor, Janakben, is B+ as per the medical report and, therefore, special arrangement be made for providing adequate quantity of blood in the event of necessity.
[iv] The foetus be preserved to enable the Investigating Agency to send it for DNA test.
[v] Minor, Janakben, be discharged from the hospital after termination of pregnancy only if she is found to be medically fit to reside with her parents and, thereafter, she may be called for periodical checkup to know about status of her health as and when required and found necessary and she be provided medicine, proper diet and nutritious food as may be necessary for her health.
22 In Jankiben vs. State of Gujarat and another [Special Criminal Application No.1786 of 2013 decided on 21st June 2013 by this Court], a learned Single Judge of this Court allowed the termination of Page 29 of 52 HC-NIC Page 29 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT pregnancy of a rape victim who was major and her pregnancy was of nineteen weeks.
23 I have to my advantage a very lucid and erudite judgment on the subject delivered by a learned Single Judge of the Punjab and Haryana High Court in the case of R (name withheld) and another vs. State of Haryana and others [C.W.P. No.6733 of 2016 decided on 30th May 2016 by the Punjab and Haryana High Court]. The learned Single Judge of the Punjab and Haryana High Court has considered many judgments of the Foreign Courts. I may quote the relevant observations as under:
"25.18 In the case of The King vs. Bourne 1. K.B. 687: [1938] 3 All ER 615, it was held as under:
"The charge against Mr. Bourne is the very grave charge under the Offences against the Person Act 1861, S. 58, that he unlawfully procured the abortion of the girl who was the first witness in the case. It is so grave a crime that the punishment may be penal servitude for life. It is one of those crimes, like murder, which is only triable by the judges of the High Court, and, judging by the cases that come before the court, [3 All E. R. 616] it is a crime by no means uncommon. This is the second case at these July sessions at this court where a charge of an offence against that section has been preferred, and I mention that case only to show you how different the case now before you is from the type of case which usually comes before a criminal court. In that case, a woman without any medical skill or any medical qualifications did what is alleged against Mr. Bourne here: she unlawfully used an instrument for the purpose of procuring the miscarriage of a pregnant girl.
She did it for money. £2 5s. was her fee, and she came from a distance to a place in London to do it. £1 had to be paid to make the appointment. She came, she used her instrument, and, within an interval of time measured not by minutes but by seconds, the victim of her malpractice was dead on the floor. She was paid the rest of her fee and she went away. That is the class of case that usually comes before the court. The case here is very different. A man of the highest skill, openly, in one of our great Page 30 of 52 HC-NIC Page 30 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT hospitals, performs the operation. Whether it was legal or illegal you will have to determine, but he performs the operation as an act of charity, without fee or reward, and unquestionably believing that he was doing the right thing, and that he ought, in the performance of his duty as a member of a profession devoted to the alleviation of human suffering, to do it. That is the case that you have to try today."
25.19 In that case, a 14 years old girl was raped by five soldiers as a result of which she became pregnant. An eminent gynaecologist performed an abortion on her and was charged with the offence of conducting an illegal abortion. He was acquitted.
25.20 In the case of Roe v. Wade 35 L Ed 2d 147 : 410 US 113 (1973) the Supreme Court of the United States in its landmark decision established 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, demarcating 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.
25.21 A West German Constitutional Court in the abortion reform law case (1975) 39 B Verf GE observed that 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;Page 31 of 52
HC-NIC Page 31 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT (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 selfdetermination, the principle of its regulations. On the other hand, the protection of foetus must be given priority to the woman's right of selfdetermination;
(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) 25.22 The Abortion Act, 1967 of the UK also in its Article 2 does not confer an absolute right to life to the unborn child. It was so held in Paton v. United Kingdom (1980) 3 EHRR 408. Abortion is permitted if the continuance of the pregnancy involves risk. The right to life of foetus is subject to an implied limitation allowing the pregnancy to be terminated in order to protect the life of a mother. The same was upheld in H v. Norway {(1992) 73 DR 155}.
25.23 The Hon'ble Supreme Court of Canada interpreted Article 7 of the Canadian Charter which guarantees an individual's right to life, liberty Page 32 of 52 HC-NIC Page 32 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT and freedom and security of a person. In the leading case of Morgentalor Smoling and Scott v. R (1988) 44 DLR (4th) 385, the Court focused on the bodily security of the pregnant women. The Criminal Code of that country required a pregnant woman, who wanted an abortion, to submit an application to a therapeutic committee, which resulted in delays. The Supreme Court found that such a procedure infringed the guarantee of security of a person. This subjected the pregnant woman to psychological stress.
25.24 In the case of R.R vs. Poland, application No.27617/04, decided on 26.05.2011 by the European Court of Human Rights, the case concerned a woman who was deliberately refused genetic tests during her pregnancy by doctors who were opposed to abortion. The woman and the doctors suspected a severe genetic abnormality in the fetus, but the doctors withheld the tests until the legal timelimit for abortion had expired. R.R. tried desperately to obtain the relevant genetic tests, that she may have had the opportunity to make an informed decision about whether or not to terminate her pregnancy. She saw numerous doctors and went to several hospitals and clinics, she even travelled to doctors in other regions than her own at one point she was even hospitalized for a few days, during which time the doctors only carried out irrelevant tests but all to no avail. Only when it was too late for an abortion, was her suspicion that the baby she was carrying had a genetic abnormality confirmed. The child was subsequently born with Turner syndrome. The Court treated the case under Articles 3 and 8 of the Convention and found a violation of both of these provisions. Articles 3 of the Convention which, insofar as relevant, reads as follows:
"No one shall be subjected to ... inhuman or degrading treatment..."
25.25 Article 8 of the Convention, insofar as relevant, reads as follows:
"1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
25.26 The European Court after considering the relevant Articles of the Page 33 of 52 HC-NIC Page 33 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT Convention came to the conclusion as under:
"159. The Court notes that the applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation. It was therefore natural that she wanted to obtain as much information as possible so as to find out whether the initial diagnosis was correct, and if so, what was the exact nature of the ailment. She also wanted to find out about the options available to her. As a result of the procrastination of the health professionals as described above, she had to endure weeks of painful uncertainty concerning the health of the foetus, her own and her family's future and the prospect of raising a child suffering from an incurable ailment. She suffered acute anguish through having to think about how she and her family would be able to ensure the child's welfare, happiness and appropriate longterm medical care. Her concerns were not properly acknowledged and addressed by the health professionals dealing with her case."
26 It would be appropriate to understand the term 'medical termination' and its historical aspects. The medical termination of pregnancy is commonly known as 'abortion'.
27. What is abortion?
The word 'abortion' comes from the Latin word 'abortio' which means to abort, miscarriage, deliver prematurely. The Latin word 'abortus' means miscarriage, premature, untimely birth. In medical terminology abortion means ending a pregnancy prematurely. An abortion is when the pregnancy is ended so that it does not result in the birth of child. This is, in fact, called termination of pregnancy. The termination of pregnancy is extremely controversial issue all over the world. The major dilemma is whether a mother or a victim of rape has a right to terminate her pregnancy at any time she wishes or unborn child has a right.
28. Historical Aspect of Abortion:
28.1 Abortion was accepted in the ancient Greece and Rome. Romans and Greeks were not much concerned with protecting the unborn, but they did object to abortion. Earlier belief among the philosophers was that a foetus did not become formed and begin to live until at least 40 days after conception for a male, and around 80 days for a female. In Politics, Book Seven Part XVI, 350 B.C.E. (before common era), Aristotle, a great philosopher wrote:Page 34 of 52
HC-NIC Page 34 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT ".... when couples have children in excess, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation."
28.2 Under English common law, abortion was a crime after quickening but the seriousness of that crime was different at different times in history.
In 1920, English Law added a get out clause that stopped abortion being a crime if it was done in good faith for the purpose of only preserving the life of the mother. 28.3 In 1938, in the case of R vs. Bourne's (supra), an abortion was performed on a 14 years old girl, victim of rape. The Court acquitted the doctor who carried out the abortion and faced the legal action observing that the girl's mental health would have suffered had she given birth. This established that mother's mental suffering could be a sufficient reason for abortion. In this case, Mr. Justice Macnaghten observed as under:
"As I have said, I think that those words ought to be construed in a reasonable sense, and, if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor, who, in those circumstances, and in that honest belief, operates, is operating for the purpose of preserving the life of the woman. "
28.4 Similarly, the decision rendered by Supreme Court of USA in Roe vs. Wade's case (supra) made the abortions legal in United States of America.
29. In India, MTP Act has been enacted on the lines of U.K. Abortion Act, 1967.
30. Section 3 of the MTP Act requires permission of one or more than one doctor to opine and carry out MTP depending upon the gestational period. Section 5 of MTP Act carves out an exception for carrying out termination of pregnancy required immediately to save the life of the pregnant women irrespective of length of pregnancy. The opinion in good faith can be made even by single doctor too. The scheme of the MTP Act indicates that pregnancy can be terminated in good faith if the continuance of pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical or mental health or there is a substantial risk that if the child Page 35 of 52 HC-NIC Page 35 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT was born, it would suffer from such a physical or mental abnormalities as to be seriously handicapped. The MTP Act provides a defence for those who carry out the abortion under certain parameters of MTP Act. The main objects of the M.T.P Act are perceived 'need' to prevent some sections of the population from reproducing and national interest and other necessary exigencies. The scheme of the MTP Act can be summed up as under:
"1. Reasons to seek termination of pregnancy should be as mentioned under Section 3 of MTP Act. If those reasons are not present, no pregnancy can be legally terminated.
2. Length of pregnancy is a vital factor to give green signal for termination.
3. Prerequisites of doctor's opinion to declare fit for termination as per law. The Length of pregnancy determines the need for opinion of one or more doctors.
4. Consent of woman or her guardian (minor and mentally ill) is mandatory.
5. To save life of woman, Section 5 lifts the embargo of termination on post 20weeks pregnancy and requirement of more than one doctor's opinion. But the language used is "immediately".
6. No provision stipulates judicial authorization of MTP in any case including those necessitating termination on account of mental anguish in woman due to rape committed on her."
31. The Courts allowing or declining termination of pregnancy always depend upon the opinion of the doctors. It may be a rare case where court passes order contrary to opinion of medical boards. This is due to reason that medical and health professionals are the experts in this field. The catena of judgments referred above clearly indicates that many a time, time is wasted in getting the opinion of the medical board and by that time even statutory period lapses.
32. In fact, the statute provides for early termination of pregnancy not on demand but on satisfaction of certain conditions. The requirements that need to be fulfilled are enumerated in Section 3(2) of the MTP Act. Apart from that, uptil 20 weeks of pregnancy, there are no impediments in law for termination of pregnancy, if those conditions exist. Even then, there appears to be a practice of approaching the courts for termination of pregnancy before the completion of 20 weeks. Many a time, even doctors Page 36 of 52 HC-NIC Page 36 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT while examining the rape victims do not probe the possibility of pregnancy and many a time in spite of pregnancy, its notice is not taken and medico legal reports are prepared in a casual manner, unmindful of the consequences specifically in rape cases. The practice stems from lack of awareness on the part of the doctors, investigating officers, lawyers and courts. The cases are filed by the counsel without sometime being aware of the provisions of the Act and the need of urgency in such cases. The practice of filing such cases has been condemned by this Court in Bashir Khan's case (supra) and subsequently, in the case of Vijender's case(supra). The judgments in the said cases mention issuance of orders to the Director General of Police of the State of Punjab, Haryana and the U.T. to ensure that such cases of termination of pregnancy should not be brought to court.
33. Why are the late abortions still necessary?
Unwed teenagers who may have suffered pregnancy due to the alleged rape may not know that they are pregnant until they feel the baby kick. This is known as quickening. At this stage, foetal movements occur between 17th to 20th week of pregnancy, when at this stage issue of termination of pregnancy arises the legal scholars, ethicists and others continue to dissect this complicated issue. Social policy makes the issue of late abortion worse. The doctors, physicians and social policy makes the issue of late abortion worse. The doctors, physicians, gynaecologists and obstetricians grapple the following issues in relation to the late termination of pregnancy
(i) what is appropriate or not as per their own beliefs;
(ii) whether abortion should now be carried out in obstetrical wing of the hospital where foetus can be monitored and
(iii) whether neonatologist should be present at the time of termination of pregnancy; where a live birth is a possibility.
Terminating pregnancy at advanced stage, say 28 weeks, may not be advisable as this may be high risk pregnancy. We can make an attempt to draw a line at 24 weeks, as this period is fixed by the statutes in various other countries. Even Draft Medical Termination of Pregnancy (Amendment) Bill, 2014 is pending in the Parliament, according to which decision to allow abortion between 20 and 24 weeks can be taken in good faith by the competent person. The revision of the legal limit for termination of pregnancy is long due. In fact, medical technology has leaped beyond the MTP Act and assumptions of medical ethics. Most of the doctors try to remain within law and do not consider the peculiar Page 37 of 52 HC-NIC Page 37 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT circumstances of the case before them. Advances in neonatology may have an impact on the judgment in Roe vs. Wade's case (supra) to render at obsolete. Some abortions are necessary beyond the statutory limit in the light of circumstances under which they are sought and, therefore, we require to streamline the system in this regard. 33.2 There is a possibility that when a child is born alive, he/she may be required extraordinary care. The saying is 'fear inspires caution'. In case, foetus is born alive during late termination of pregnancy, physician, gynaecologist and obstetricians confront a serious problem as performing late abortion is the gap between abstract theory on foetal viability and realities of medical practice. Pregnancy due dates, date of conception and foetal viability are still an uncertain area. Viability is more difficult to assess. As per the opinion of the gynaecologist, 24 weeks foetus physically appears to resemble a child but his lungs and brain are still not fully developed, nor its eyelids are open.
33.3 The MTP Act is an inadequate act and only appears to have been designed to serve the interest of the family planning programme. Under the MTP Act, women have restricted right to termination of pregnancy. The declared objects of the MTP Act are to help women, who become pregnant as a result of rape, women who are pregnant due to contraceptive failure (applicable to married women/marital sexuality) or to reduce the risk of severely handicapped children being born.
33.4 Right to abortion involves the fundamental right of the mother and the foetus. Now the issue arises at what stage a foetus can be seen as an individual in its own right. It is a disturbing issue. The notion that the foetus is an individual in its own right infuses an emotional angle to the entire issue on abortion. The abortion causes emotional turmoil for many women and their families. The woman has an exclusive and inalienable right over her body and her reproduction and that cannot be transferred to her family or the State. This is more relevant in our country where child bearing is governed by social mores. Article 21 of the Constitution of India provides right to life and right to privacy. Article 6(1) of the International Covenant on Civil and Political Rights prohibits the arbitrary deprivation of life. But, the right of the mother is to be balanced with the right of unborn. One view is that human being does not exist as a legal person until after birth. The foetus does not enjoy independent legal personality. In the case of Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India, AIR 2008 Bom. 29, it was held that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman's right to life. It violates Article 39(e) of the Constitution which states that the principle of state policy that the health and strength of women is not be abused. It ignores Article 51(A)(e) of the Constitution which envisages that it shall be the duty of every citizen of India to renounce practice derogatory to the dignity of the women. The legislature Page 38 of 52 HC-NIC Page 38 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT in the MTP Act has not defined anguish that it must be termed as grave injury to the physical and mental health of the victim. The Hon'ble Supreme Court in catena of judgments has developed the various rights under the concept of personal liberty under Article 21 i.e. right of free enjoyment, right to human dignity, right to have access to justice, right to privacy. Thus even in the best circumstances, this Court believes that no law or a person can ethically compel a woman to carry on pregnancy that she does not want. When pregnancy has progressed to a point where the foetus has become viable, one is compelled to view the situation from the point of the woman as well as the potential child.
34. Psychological Effects of rape, impregnation and refusal of termination of pregnancy for want of legal sanction on the victim:
Victims of rape impregnated due to the act experience both short and long term psychological effects. Deep physical trauma is most common and lasting effect of rape. The medical literature and studies are galore with the instances of Post Traumatic Stress Disorder (PTSDs) in rape victims. Due to the less evolved society, more so in this part of the world, till date the rape victim carries more stigma than the person accused of the offence of rape. Those assaulted repeatedly at very young age may need treatment and counselling for the rest of their lives. Rape of minors and young girls, at the hands of unconscientious criminals continuously increasing in various parts of the country, is itself a matter to be ashamed of as a society and needs deliberations to curb the menace. What makes it worse is the callous attitude of the person in authority, specifically the investigating officers. Rape of innocent and minor girls on the one hand, and the complete absence of sensitivity, empathy in the society towards the victims and, moreover,the misogynistic response by the authorities on the other hand, is highly condemnable. The daughters of India are falling prey to a deeply misogynistic society. We need sensitive people at various echelons in the set up of investigation of criminal cases and rehabilitation of victims of crime who will hear the cries of anguish of the victims with an open mind and a sensitive heart. The perpetrators of such heinous crimes roam in streets like wolves in forests and threaten the victims and their families of dire consequences as a result of which tears stream down their faces.
35. Need for Counselling and Mental Health Evaluation from time to time:
35.1 There is extensive research to the fact that the incident of violence on the body of a victim revisits her thinking process many times a day. The counselling is necessary to help her overcome this trauma. The Indians are perceived to have faith in religions and God. God is a wonderful counsellor; we have learnt from scriptures and holy books. The sufferings must reach to a minimum level of severity and for this purpose, Page 39 of 52 HC-NIC Page 39 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT counselling is a necessity. The denial of such services which are critical for making an informed decision as to whether to seek abortion or not also violates the right to be free from inhumane and degrading treatment. The assessment of minimum level of suffering is a relative term. It depends upon the circumstances of the case, such as duration of treatments, its physical and mental effects and the age and state of health of the victim.
Paradoxically, both the rape and abortion are violations and infringement of right to life.
36. In this case, the alleged pregnancy is the result of a crime of rape. The minor and her legal guardian have expressed in an unequivocal desire to get the pregnancy terminated. The doctors at Civil Hospital cum SHKM Government Medical College, Nalhar, Nuh should have examined the possibility of pregnancy of the petitionervictim in terms of Section 164A of Code of Criminal Procedure and helped the minor and her legal guardians to make an informed decision with regard to termination or continuation of the pregnancy.The doctors who conducted the initial medicolegal examination at Nalhar did not perform their duty as doctors with due diligence and did not carry out pregnancy test in spite of the information that she is victim of alleged sexual assault. The petitioner No. 1 during the course of conversation in camera with Amicus Curiae had given the threat to commit suicide if the pregnancy, which is causing her a lot of mental anguish and embarrassment in the society as per her understanding, was not allowed to be terminated. Such a statement of the victim reflects the state of acute mental and physical health problem. Even in the medical report dated 3rd of May 2016 submitted by the Board of Doctors, PGIMER it is mentioned that "there is a possibility of harm to the patient due to social and emotional consequences of continuation of pregnancy." This court vide order dated 13.05.2016 directed the Medical Board of PGIMER to reassess the termination of pregnancy of Petitioner No. 1 and, if the same is medically feasible, they should go ahead with the termination of pregnancy without further orders from the court. The Medical Board of the PGIMER also determined the bone age of petitioner No. 1 through XRay examination to be 18 to 20 years.
37. Section 3 of MTP Act stipulates that the pregnancy which exceeds 12 weeks but does not exceed 20 weeks may be terminated if not less than 2 registered medical practitioners can form an opinion in good faith that continuation of pregnancy will pose risk to the life of the pregnant woman or will cause grave injury to her physical and mental health. The pregnancy in the present case is the result of rape and the victim is a minor as per the assertion in the Writ Petition and admission in the written statement of State Government. However, the age of the petitioner No. 1 as per xray examination of her bones has been determined between 18 to 20 years by the Medical Board, PGIMER constituted on 03.05.2016 under the the directions of this Court. Meaning thereby she might be Page 40 of 52 HC-NIC Page 40 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT major and is legally capable to take a decision with regard to her termination of pregnancy. Even if she is a minor, her father her natural Guardian, had given the consent for the same and has approached this Court. This Court is of the opinion that in the present case applying the 'best interest test' as explained by the Hon'ble Supreme Court in Suchita Srivastava's case (supra), the pregnancy of petitioner No. 1, which is the result of alleged rape and has caused deep mental anguish to her, constraining her to demand the termination of the same in unequivocal terms, may have been terminated by the doctors of PGIMER, which is an imminent institution on the medical sciences. This observation finds strength from the fact that the gestation period of pregnancy was not beyond 24 weeks at that time and this Court had given the legal authority to the medical board to carry out the termination if the same is necessary for preserving the life and health of Petitioner No. 1. This court is of the considered opinion which is corroborated from the opinion of psychiatrist of PGIMER that continuance of the pregnancy is certainly a grave injury to petitioner No.1's physical and mental health. The doctors in such circumstances cannot be penalized when they act in good faith and help a hapless victim to abort the pregnancy caused due to rape. It appears that doctors did not carry out termination of pregnancy for fear of prosecution under the penal provisions referred to in the foregoing paras of this judgment. This court is of the view that the fear of chilling effect of prosecution needs to be removed from the mind of doctors. Section 3 of MTP Act provides a defence when the termination is done in accordance with the conditions set out in the MTP Act. Further, a medical practitioner is protected by Section 8 of MTP Act for "any damage caused or likely to be caused by anything" for any act done in good faith under the MTP Act . This court has to base its judgment completely upon the opinion of the experts in the field and cannot issue directions on its own. The courts only interpret the provisions of law and pass the order accordingly. To remove this fear of prosecution in the minds of the doctors, the authorities concerned should issue procedural guidelines so that they may act without fear in the interest of the patient.
38. Way back in 1938 in the case of King vs. Broune (supra), it was held that when a doctor on reasonable grounds and with adequate knowledge in the field comes to a conclusion of probable consequences of pregnancy that it will make the concerned victim /woman physically and mentally wrecked then the concerned doctor/doctors, if decide for termination of pregnancy, are proceeding with purpose of preserving the life of women. On the anvil of the settled position of law, the best interests parameters and the social circumstances that may be faced by the rape victim, the decisions of Court as well as of the doctors should be guided by the interest of the victim alone. Bearing this in mind, this court had given liberty to the doctors of the PGIMER to go ahead with termination of pregnancy if it is not harmful to the victim and, rather, is required to preserve her mental Page 41 of 52 HC-NIC Page 41 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT and physical health. But the board decided according to their wisdom not to go ahead with the same and came to a conclusion that the termination of pregnancy should not be carried out at this stage. In view of the opinion of Medical Board of PGIMER, this court cannot pass the order to terminate the pregnancy of petitioner No. 1.
39. This Court is of the considered opinion, in the light of the findings in the report dated 3rd of May 2016 to the effect that there is a possibility of harm to the patient due to social and emotional consequences of continuation of pregnancy, then the inference can be drawn that it will certainly cause grave injury to her physical and mental health. Moreover, in the order dated 13.05.2016, this Court had referred to the judgements of the Hon'ble Apex Court and the Hon'ble Gujarat High Court vide which the Courts have granted the permission for termination of pregnancy beyond the prescribed period of 20 weeks under the MTP Act. The order also contains reference to Section 5 of the MTP Act which gives power to the doctor to go ahead with the termination of pregnancy if the same is necessitated on account of saving the life of the woman. Therefore, pursuant to the order of this Court, there was no risk of prosecution of the doctors if they would have gone ahead with the termination of pregnancy of petitioner No.1. At that juncture, petitioner No.1 and her father her natural guardian,were ready to give consent for termination of pregnancy."
24 In the overall view of the matter, more particularly, taking into consideration that the foetus, as on date, is almost 31 weeks of age and also considering the opinion expressed by the two panel of doctors, I have reached to the conclusion that I should not permit the pregnancy to be terminated. In Murugan Nayakkar (supra), the Supreme Court did permit termination of pregnancy in a case, in which the victim was 13 years old and the Medical Board was of the view that the baby born would be preterm and thereafter its own complications and would require Neonatal Intensive Care Unit treatment. At the same time, in the case before the Supreme Court, the Medical Board did express an opinion that the termination of pregnancy be carried out. The Supreme Court laid emphasis on the age of the victim, the trauma she suffered because of the sexual abuse and the agony she was going through at that point of time, and above all the report of the Medical Board. I am of the Page 42 of 52 HC-NIC Page 42 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT view that I should not take any decision contrary to the medical opinion on record. What has weighed with me is the fact that if the baby is ultimately going to be born alive and may have to be kept for weeks together in a Neonatal Intensive Care Unit and if the victim and her parents are not going to accept the baby, then ultimately, it is the infant who will have to suffer a lot. I do not undermine the trauma and agony which the victim must be undergoing at this point of time, but, the Doctors are very reluctant and clear in their mind. The opinion of the Doctors may be based exclusively keeping in mind the age of the foetus and the other complications which are likely to crop up. I have observed over a period of time that the Doctors, while expressing their opinion in such type of matters, do not consider the trauma and the agony, which the victim undergoes. However, still, they are the experts, and ultimately, they have to carry out the termination.
25 The Act lays down conditions under which a woman can get an abortion. A woman can have an abortion upto 20 weeks of her pregnancy only if the doctors are of the opinion, taken in "good faith", that continuing the pregnancy involves substantial risks for the physical and mental health of the mother or of foetal abnormalities developing. Since the Act allows abortions only upto 20 weeks, if a woman wants to terminate her pregnancy after 20 weeks, she has to get permission from the Courts to do so. In such abortion cases, the Courts rely on the advice of the Medical Boards appointed to examine the woman or girl petitioning for an abortion. In most of the cases, the Doctors consider two life - that of the pregnant girl and that of the foetus. It can be argued in a given case that the same is not acceptable. In a given case, the Court may take the view that it would be cruel to force the girl to bring the foetus to mature, as she alone will bear the physical trauma of Page 43 of 52 HC-NIC Page 43 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT pregnancy and child birth. As argued by the learned counsel appearing for the writ applicant, it is not the question whether the Doctors are pro life or not. The question is with regard to the condition of the victim, as she alone will bear the physical and mental trauma of pregnancy and child birth. Therefore, at times, the Court may have to draw a balance. It would all depend on the facts of the case.
26 In the United Kingdom, where abortions are allowed upto 24 weeks, the Royal College of Obstetricians and Gynaecologists has formulated detailed guidelines for abortion. It also covers procedures for pregnancy over 20 weeks. Like in India, there is no time limit for an abortion in cases where the mother's life is in danger. The guidelines take into consideration the Doctors, who have a conscientious objection to abortion based on their religious or moral beliefs. While a Doctor can refuse to perform an abortion, he is required to tell the woman of her right to see another Doctor. India has no such guidelines holding the Doctors responsible for directing women to other medical care in case they do not want to perform abortions. I am told that in 2016, the Ministry of of Health and Family Welfare released guidelines on abortion, mainly related to the procedures to be followed while conducting abortions upto 20 weeks, but with no direction to doctors on what to do for abortions of foetuses older than 20 weeks. The United Kingdom guidelines state that, in case of any pregnancy beyond 21 weeks and six days, the Doctor can give an injection to cause foetal death before the foetus is evacuated. This procedure is commonly followed for lateterm abortions in many other countries. After the Chandigarh rape case, the CommonHealth had urged the Government to provide guidelines for safe and legal abortions to rape and sexual abuse survivors, especially for children. They had also said that there should be no time limit on abortion in such cases since they are often Page 44 of 52 HC-NIC Page 44 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT detected late and only reported in the late second or third trimester of pregnancy.
27 Though the medical community is still debating the ethics of late term abortions, it is important for India to have the discussion and for the Government to draw up a clear guidelines for all unwanted pregnancies beyond 20 weeks. Cases cannot be left entirely upto the discretion of the Doctors whose opinions may not be based on medicine alone. [See: Article by Menaka Rao, "the cases of two child rape victims show why India needs guidelines for late term abortion".] 28 It is not clear from the order passed by the Supreme Court in the case of Murugan Nayakkar (supra) as to what was the opinion of the Medical Board. All that I could gather on plain reading of the order is that the Medical Board did express its opinion that the termination of pregnancy should be carried out. In the case on hand, the opinion is otherwise. Ultimately, it comes to only one thing. Whether this Court should relieve the victim of the trauma and agony which she may be undergoing as on date, by allowing the pregnancy to be terminated and thereby, make the infant suffer for weeks together because it would be a preterm delivery?
29 In the aforesaid context, I may refer to the orders passed by the Supreme Court in the case of Alakh Alok Srivastava vs. Union of India and others [Writ Petition (Civil) No.565 of 2017]. The first order dated 24th July 2017 reads as under:
"UPON hearing the counsel the Court made the following Page 45 of 52 HC-NIC Page 45 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT O R D E R
1. The Registry of this Court is directed to amend the cause title by impleading, as Respondent No.5 in this writ petition, the Member Secretary of the U.T. Chandigarh Legal Services Authority.
2. Issue notice to the respondents, as also the newly added Respondent No.5, returnable on 28.07.2017.
3. The Registry of this Court is directed to ensure the service of the instant petition on the added Respondent No.5, during the course of the day. The Member Secretary of the U.T. Chandigarh Legal Services Authority shall assist this Court as an amicus curiae for the factual determination of the controversy raised. The identity of the child, as also her residential address, is available with the petitioner inperson. He undertakes to furnish the same to this Court, in a sealed cover. The Registry of this Court shall forward the aforesaid particulars to the Member Secretary, U.T. Chandigarh Legal Services Authority, and communicate the name and address of the child on telephone (after opening the sealed cover).
4. Before the matter is taken up for hearing on 28.07.2017, the Member Secretary, after having followed the procedure and obtained due permission of at least one of the parents of the child, shall have the child examined at the P.G.I., Chandigarh, from a Board of Doctors on 26.07.2017, so as to affirm one way or the other, whether the health of the girl child concerned, who is stated to be of the age of 10 years, and also that of the fetus, would be adversely affected, if the pregnancy is continued for the full term. The Member Secretary shall carry the report of the Board of Doctors of P.G.I., Chandigarh, to this Court for its consideration, in a sealed cover.
5. The Member Secretary shall also arrange for the transportation of the girl child in question, as well as, at least one of her parents, at the time of medical examination at P.G.I., Chandigarh. Such facilities shall be extended by the Member Secretary, U.T. Chandigarh Legal Services Authority, for effectuating the presence of the girl child involved, as also at least one of her parents, in this Court, during the course of hearing, hereinafter."
The second order dated 28th July 2017 reads as under:
Page 46 of 52HC-NIC Page 46 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT "1. In continuation of motion Bench order dated 24072017, Mr. Mahavir Singh, Member Secretary, State Legal Services Authority, UT Chandigarh, who is present in the Court, has produced for our perusal a report of the Medical Board, in a sealed cover. We have perused the report, which contains the following recommendations :
"The girl child is in a good state of health at present except mild pallor (anemia). The girl child is a known case of congenital heart defect (Ventricular Septal Defect) which was corrected in 2013 at PGI Chandigarh. At present she is asymptomatic and the corrected Ventricular Septal Defect is unlikely to interfere with the progress of pregnancy.
On clinical and ultrasound examination the fetus is approximately 32 weeks old, alive and doing well (Biophysical profile, Non Stress Test and Signature Not Verified Digitally signed by umbilical artery Doppler study - normal). Estimated weight of the fetus is approximately 1.6 kg and there is no apparent fetal congenital malformation.
In view of the above, continuation of pregnancy may not pose any additional risk to the girl child and the fetus, other than the age related risk which is higher than adult pregnant woman. Continuation of pregnancy is less hazardous for the girl child and fetus than termination of pregnancy at this stage."
2. We direct, that the report be resealed. In view of the recommendation made by the Medical Board, we are satisfied, that it would neither be in the interest of the girl child, nor of the life of fetus, which is approximately 32 weeks old, to order medical termination of pregnancy. We, therefore, hereby decline the instant prayer made in the petition.
3. We are however of the view, that the girl child should be extended due medical care. We are informed, that she is being treated at the Government Hospital, Sector32, Chandigarh, which we are satisfied is fully equipped to render the best medicalaid possible. It shall be open to the treating doctors to evaluate the health of the girl child, for selecting the best mode of delivery, for the child.
4. The writ petition is disposed of in the above terms.
Page 47 of 52
HC-NIC Page 47 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
5. We express our gratitude to Mr. Mahavir Singh, Member Secretary, State Legal Services Authority, UT Chandigarh, for rendering his valuable assistance."
30 My final conclusion is that I should not do anything contrary to the opinion expressed by the eight doctors. Ultimately, if the baby is given up, then the State authorities will have to do the needful in accordance with law. All through the course of hearing of this matter, Mr. S.R. Kevat, the LegalcumProbation Officer, District Child Protection Unit, Sabarkantha remained present before this Court. Mr. Kevat has assured this Court that he would take all the necessary steps to ensure that appropriate treatment is given to the victim at all the stages. Mr. Kevat shall remain in constant touch with the victim and her family members and will help them in all respect.
31 While declining to grant permission to terminate the pregnancy, I propose to issue the following directions:
[1] The LegalcumProbation Officer, District Child Protection Unit, Sabarkantha including the Collector, Sabarkantha are directed to ensure the periodical check up of the victim either in the Civil Hospital at Himmatnagar, or if necessary, in the Civil Hospital at Ahmedabad. The victim has still about one and half months left to deliver the baby. For the present, the victim may get herself checked up periodically in the Civil Hospital at Himmatnagar or at any other Government Hospital nearby her village provided proper medical facilities are available over there. The authorities shall see to it that 10 days before the due date, she is brought to the Civil Hospital at Ahmedabad and delivers the baby in the Civil Hospital at Ahmedabad.
Page 48 of 52
HC-NIC Page 48 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
[2] The medical experts of the Hospital are requested to
provide all the facilities including counseling, etc. They are also requested to reserve a special room for the victim and her family members as required at the appropriate time. If the victim and her family informs the authorities about their unwillingness to keep the child, then the efforts should be made to make necessary arrangement for the adoption of child by involving the concerned officials from the Central Adoption Resource Authority (CARA) or any other recognised Institution. All the expenses incurred in this regard shall be borne by the department of the Health and Family Welfare, State of Gujarat.
[3] The Principal Secretary of the Department of Health and Welfare, Government of Gujarat shall immediately release a sum of Rs.1 Lac. in the account of the father of the victim for food and medical expenses. If the father of the victim has no bank account, then the amount shall be paid accordingly. I make it clear that the parents of the victim can approach the State Legal Services Authority if there is any further requirement in this regard.
[4] I make it clear that the counseling should be without any intermingling with any other person and should be home based unless it is necessary to take the victim to the hospitals above mentioned.
[5] The medical record of the victim as well as the new born child at the time of discharge from the hospitals and subsequent treatment be kept in a sealed cover with the hospitals authorities.
Page 49 of 52
HC-NIC Page 49 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
[6] When the victim visits for her medical check up and
counseling, the doctors shall deal with her sympathetically. The counseling shall be provided to her regularly as per the mental health of the victim and the requirement for the same.
[7] It is clarified that the amount awarded by this Court is in addition to the entitlement as per the provisions of the Code of Criminal Procedure.
[8] The Central Government is advised to consider making necessary amendments to the Medical Termination of Pregnancy Act, 1971 and clarify in so many words to the doctors that they will not be unnecessarily prosecuted if they act in accordance with the rules in good faith to save the life of a victim of rape or to prevent grave injury to her physical and mental health. Termination of pregnancy in good faith which results from crime is otherwise permitted under the provisions of the Medical Termination of Pregnancy Act, 1971.
[9] Seminars for the Investigating Agencies, Doctors, Lawyers and Judicial Officers, who have occasion to deal with such cases should be organized periodically. They should be sensitized about the urgency and immediate need of the counselling and other medical assistance required to a rape victim. The respective departments having control over these agencies should regularly update its officers/officials about the legal provisions and settled law on the subject.
Page 50 of 52
HC-NIC Page 50 of 52 Created On Tue Jan 30 23:16:28 IST 2018
R/SCR.A/585/2018 JUDGMENT
[10] The Judicial officers of the subordinate judiciary of the State of Gujarat should be made aware of the provisions of the Medical Termination of Pregnancy Act, 1971 and urgency in such cases. In order to ensure that if any case is brought before the gestation period reaches 20 weeks, the victim be informed about her choice to seek termination at the earliest.
[11] The Registry is directed not to mention the name of rape victim in the cause list, judgment order, but they may refer to her name by mentioning the first alphabet of her name.
[12] The counsel representing the victim of rape are also requested not to disclose the identity of victim in the petition in the headnote of petition. They may also write the first alphabet of name of the victim and may quote "name withheld" in particulars.
[13] If it is brought to the notice of this Court that anyone has disclosed any information which may lead to the identity of the parents of the victim or the victim or the new born child, that person is liable to face proceedings for Contempt of Courts, apart from the possibility of prosecution under Section 228A of the I.P.C.
[14] It is very important to state that the victim is studying in standard 8th. All necessary steps should be taken by the authorities concerned to ensure that she continues to study and does not give up. All steps necessary shall be taken to see that there is no discomfort to her in the school. The parents of the victim should also be persuaded to see that the victim continues to study. The Page 51 of 52 HC-NIC Page 51 of 52 Created On Tue Jan 30 23:16:28 IST 2018 R/SCR.A/585/2018 JUDGMENT teachers and the school also should be made alert to see that the victim is not harassed in any manner by anyone.
[15] The Investigating Officer of the First Information Report being C.R. No.I83 of 2017 registered with the Vijaynagar Police Station, District: Sabarkantha shall take necessary steps for the DNA Identification.
32 With the above directions, this writ application is disposed of.
33 The Registry shall notify this matter after two months for the purpose of ascertaining the condition of the victim in this regard. The Registry shall call for the report of Shri S.R. Kevat, the Legalcum Probation Officer, District Child Protection Unit, Sabarkantha and place the same on record.
34 A copy of this judgment be furnished to Mr. Mitesh Amin, the learned Public Prosecutor for its onwards communication. Mr. Amin, the learned Public Prosecutor is requested to see that all directions issued by this Court are scrupulously followed. Mr. Amin, the learned Public Prosecutor shall call the authorities concerned in his office and speak to them personally in this regard.
(J.B.PARDIWALA, J.) chandresh Page 52 of 52 HC-NIC Page 52 of 52 Created On Tue Jan 30 23:16:28 IST 2018