Rajasthan High Court - Jaipur
Victim vs State Of Rajasthan on 15 September, 2020
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9471/2020
Victim, Aged About 17 Years, R/o
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Medical And Health, Secretariat, Jaipur.
2. Chief Medical And Health Officer, District Kota (Rajasthan)
3. Superintendent Of Police, Kota, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Arun Singh Shekhawat (through video conferencing) For Respondent(s) : Mr. Bharat Saini, Addl.GC (through video conferencing) HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order 15/09/2020 The present writ petition has been filed by the petitioner victim through her natural guardian - mother for seeking a direction to permit medical termination of pregnancy of the petitioner in a recognized hospital by a team of qualified Doctors.
The facts pleaded in the writ petition are that the victim belongs to a poor family and she lives at Kota and her date of birth is 23rd September, 2003. Unfortunately, on 12th July, 2020 when she had gone out to buy ice-cream and she did not come back and as such, the mother of the victim lodged an FIR No. 140/2020 under Section 363 CrPC. at Police Station Jawahar Nagar, Kota City.
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(2 of 11) [CW-9471/2020] It is stated in the petition that during the investigation, the victim was recovered on 14th July, 2020 by the police concerned and she was handed over back to her mother.
The victim disclosed to her mother that she had become pregnant of 19-20 weeks as a result of forceful sexual intercourse by one accused Balveer and she wanted to get pregnancy to be terminated, as the victim suffered on account of rape being committed on her.
It is pleaded in the petition that initially an application was filed before the Judicial Magistrate No. 4, Kota North and the said application was dismissed by the Court below on 7 th August, 2020, as same was not found maintainable as per the provisions contained in the Medical Termination of Pregnancy Act, 1971 (for short "the Act of 1971"). The said Court had given permission to the victim to approach the District Legal Services Authority, Kota.
Learned counsel Mr. Arun Singh Shekhawat, appearing on behalf of the Legal Services Authority, submitted that the victim was ordered to be examined by this Court by passing an order on 26th August, 2020, wherein the victim was to be present before the Head of Gynecology, Kota Medical College, Kota, who was to submit a report whether the victim has given free consent for abortion and whether she was in a fit medical condition to abort the child.
The said report was to be placed before this Court on 31 st August, 2020.
The report of the Board, constituted by Kota Medical College, Kota, has been placed on record with the reply, which has been filed by the respondents.
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(3 of 11) [CW-9471/2020] This Court perused the report and found that the Members of the Board have opined that the victim was pregnant with 28 weeks' pregnancy + - one week and permissible limit for termination of pregnancy was 20 weeks. The Board further opined that as per the various guidelines, the Preterm Delivery would have to be undertaken and the victim/patient will be delivered labour induction medicines and on failed induction, the patient may be required to be operated upon.
In the report, it was also opined that victim was about 17 years of age and in the teenage pregnancy, there are more chances of complications. The Board also found that the foetus was also of 28 weeks and performing any surgery or a procedure, may also endanger the foetus inside.
The Board, considering all these complications, found that termination of pregnancy will not be in the interest of the mother as well as child and it may affect health of both.
The report of the Medical Board, Kota is reproduced hereunder for ready reference :
"fnukad 28-08-2020 dks izkFkhZ;k fiz;adk dh lksuksxzkQh ds vuqlkj mlds 28 g¶rs $ & 1 g¶rk ,oa 5 fnu o Breech Presentation & Expected Fetal wait 1145 $ & 176 grm gS A ,sls esa 1971 ,e-Vh- ih- ,DV ds rgr xHkZikr dh Permissible Limit weeks 20 weeks gSA mijksDr izdj.k esa ;fn izsXusulh VfeZusV dh tkrh gS rks og Various guide lines ds vuqlkj Preterm Delivery dh ykbZUl ij djokuh iMsxhA ftlesa dh ejht dks yscj bUMD"ku ds fy;s nokbZ;ka nh tk;sxh o Failed induction gksus ij ejht dks vkWijs"ku dh Hkh t:jr iM+ ldrh gSA mez ds fglkc ls ejht Teenage Pregnancy esa vkrh gS] Teenage Pregnancy Eksa dkWEiyhds"kUkl~ dh lEHkkouk vf/kd jgrh gSA ftlesa Preeclampsia, Eclampsia, Infections, Anemia, & Operative Delivery or Associated Complication PPH, Infections, & Psychological Complication gSA D;ksfd ;g Breech Presentation gS rks ,sls esa Induction ds Qsy gksus og lhtsfj;u lsD"ku dh lEHkkouk T;knk gSA 28 lIrkg ds f"k"kq ds fofHkUu vax tSls dh QsQM+s] fdMuh] czsu] vkgjuky] fyoj] vkfn Premature gksrs gS ftlds dkj.k f"k"kq dks lkal ysus esa rdyhQ ¼RDS½] HIE fnekx esa vkWDlhtu dh deh] czsu esa [kwu dk cgkc ¼IVH½] NEC vkgjuky esa lwtu] ihfy;k (Downloaded on 22/09/2020 at 08:42:58 PM) (4 of 11) [CW-9471/2020] vkfn dk [krjk vf/kd gksrk gS ftldh otg ls Hypoglyeemia mldk thou [krjs esa iM+ ldrk gSA mijksDr lHkh dkWEifyds"ku dks ns[krs gq;s bl orZeku ifjfLFkfr esa izsXusulh VfeZuVs djus ls ek¡ ,oa cPps ds LokLF; ds fy;s mfpr ugha gksxkA"
Learned counsel Mr. Arun Singh Shekhawat made submission that view of this Court as well as the Apex Court has been very consistent and it has been laid down that even if the rape victim carries foetus of 30 weeks, termination of pregnancy can be ordered by the High Court, as victim suffers scar throughout her life due to illegal act, committed on her by the accused.
Learned counsel further submitted that report of the Medical Board, Kota may not be treated as conclusive proof and as such, he prayed for passing appropriate order of terminating pregnancy of the victim.
Learned counsel for the petitioner-victim Mr. Arun Singh Shekhawat has made reference of the judgments of the Supreme Court in the cases of Murugan Nayakkar vs. Union of India & Ors. (Writ Petition (s) (Civil) No(s). 749/2017, Ms. Chanchala Kumari vs. Union of India & Anr. (Writ Petition (Civil) No. 871 of 2017), Tapasya Umesh Pisal vs. Union of India and Ors. (Writ Petition (Civil) No. 635 of 2017) and Meera Santosh Pal & Ors. vs. Union of India & Ors. (Writ Petition (Civil) No. 17 of 2017) as well as judgment of this Court in the case of Nisha Vaishnav Vs. State of Rajasthan & Ors. (SB Civil Writ Petition No.1271/2019).
This Court on 10th September, 2020 passed an order in the interest of justice directing the Superintendent, SMS Medical College, Jaipur to constitute a Board of minimum five Doctors to report about the medical condition of the petitioner-victim and (Downloaded on 22/09/2020 at 08:42:58 PM) (5 of 11) [CW-9471/2020] further, to certify whether the victim is in fit medical condition to abort the child or not.
The directions given by this Court on 10 th September, 2020 have been carried out by the Superintendent, SMS Medical College, Jaipur. A Medical Board of five Doctors was constituted and a report dated 14th September, 2020 has been sent to this Court.
This Court perused the report of the Medical Board and the said report further states that the victim is pregnant with single live viable foetus of gestational age of 30 weeks and 1 day. The foetus had attained the age of viability (28 weeks) and is capable of independent existence.
The Board further says that at this stage, termination of pregnancy will not be in favour of life of the foetus and may also have adverse effect on the health of the mother. The report says that at this gestational age, termination of pregnancy will be done by premature induction of labour delivery. Finally, the opinion of the Medical Board is that medical condition of the victim is stable at present, yet premature delivery of the foetus at this stage of pregnancy (gestational age) is not medically advisable, as induction of labour may have adverse effects on the life and health of both mother and foetus.
This Court deems proper to reproduce the report, which has been sent by the Superintendent, SMS Medical College, Jaipur and accordingly, it is reproduced hereunder for ready reference :
"Victim Priyanka D/o Bhairu Lal was examined by medical board constituted by above order on 11.09.2020. The victim is stable clinically, her vitals are normal, Hb is 11.8 gm%, weight is 55 Kg. and her general condition is average. As per clinical examination and sonography, she is pregnant with a (Downloaded on 22/09/2020 at 08:42:58 PM) (6 of 11) [CW-9471/2020] single live viable foetus of gestational age 30 weeks and 1 day. The foetus has attained the age of viability (>28 weeks) and is capable of independent existence. At this stage, the termination of pregnancy will not be in favour of life of this foetus and may also have adverse effects on the health of the mother. At this gestational age, the termination of pregnancy will be done by premature induction of labour (Delivery).
Opinion :- We the members of medical board are of opinion that although the medical condition of the victim is stable at present, yet premature delivery of this foetus at this stage of pregnancy (gestational age) is not medically advisable as induction of labour may have adverse effects on the life and health of both mother and foetus."
Learned counsel Mr.Arun Singh Shekhawat submitted that this Court has to pass appropriate order keeping in mind the trauma suffered by the victim and further, she will have to carry this burden of giving birth to a child, which she never wanted to have.
Learned counsel further submitted this Court has ample power under Article 226 of the Constitution of India to pass the order of termination of pregnancy of the victim.
This case is a most unfortunate case where the Court faces a dilemma as to whether save the foetus, which is fully developed and is likely to born as a living child after delivery or the poor victim, who had to suffer on account of barbarous act of committing rape on her and she had to become pregnant due to illegal and outrageous act of a person.
This Court is further constrained to evaluate a situation, as right of the victim is required to be protected of her independent existence and to get over tragic incident and she wants to live a normal life without carrying a stigma of giving birth to a child, which was wholly unplanned and undesired. (Downloaded on 22/09/2020 at 08:42:58 PM)
(7 of 11) [CW-9471/2020] This Court is conscious of the fact that permission to a rape victim for termination of pregnancy cannot be refused on the ground that foetus in womb has a right to life.
This Court, in the case of State of Rajasthan Vs. S. reported in AIR 2020 Rajasthan 97, has considered the issue with regard to right of a child rape victim to make the reproductive choice of terminating the foetus and the same will heavily outweighs right of a child in womb to be born, even where the pregnancy at an advanced stage. The directions given by the Division Bench are reproduced hereunder :
"16. As an upshot, the impugned judgment dated 17.10.2019 passed by the learned Single Bench is set aside except to the extent of the directions given for welfare of the child. However, before parting, we would like to give extensive directions enumerated below to ensure so that the unfortunate situation which was posed before this Court does not recur:
(i) that the State Government shall frame suitable guidelines to ensure that the victims of rape who became pregnant by sexual assault are provided timely and legal as well as medical assistance so as to ensure that they can exercise their reproductive choice in terms of the MTP Act;
(ii) that no sooner, the factum of a victim of sexual assault having become pregnant is reported, the Medical Officer/SHO of the police station concerned, shall forthwith forward a report thereof to the Full Time Secretary, District Legal Service Authority concerned who, in turn shall, approach the victim with a female counsellor and sensitise her and her guardians about the remedies under the MTP Act;
(iii) in case, an application for termination of pregnancy is submitted by the guardian of the victim to the appropriate authority within the stipulated period of 20 weeks as provided by the MTP Act, the same shall be processed forthwith and suitable decision shall be taken thereupon within three days from the date of submission thereof;
(iv) in case, the application seeking termination of pregnancy is filed before a competent court then, such court shall forthwith summon the victim's (Downloaded on 22/09/2020 at 08:42:58 PM) (8 of 11) [CW-9471/2020] guardian and record his/her consent which shall deemed to be final. There shall be no requirement of intervention by police in the matter of consent seeking for termination of pregnancy;
(v) in case, where the threshold of 20 weeks gestation has been crossed, the Full Time Secretary, District Legal Services Authority shall assist the victim and her guardians if they so desire for approaching the High Court to file a writ petition seeking direction for termination of pregnancy in light of decisions of Hon'ble the Supreme Court and of this Court.
(vi) the identity of the victim shall not be disclosed at any stage during this process.
We further direct that the child born to the respondent victim shall be provided all remedial measures as per the Juvenile Justice (Care and Protection of Children) Act, 2015 by the respondent NGO as well as the State Government. The District Collector, Jodhpur shall ensure that the child is brought up with strict adherence to the salutary process of the Juvenile Justice Act, 2015. In case, the child is not adopted, upon attaining the suitable age, he/she shall be got admitted into a good school as per the Right of Children to Free and Compulsory Education Act, 2009."
Learned counsel for the petitioner-victim Mr.Arun Singh Shekhawat, on the strength of the judgment in the case of State of Rajasthan Vs. S. (supra) submitted that this Court needs to interfere in the present matter and need to permit the termination of pregnancy.
I have heard learned counsel for the parties. Learned Additional Government Counsel Mr.Bharat Saini has also assisted the Court.
This Court finds that the initial medical report, given by five members of the team of Medical College, Kota, had opined that it would not be in the interest of the mother as well as child, if termination of pregnancy is undertaken.
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(9 of 11) [CW-9471/2020] This Court, in order to satisfy that right of the victim, can still be protected to go for termination of pregnancy, still sought opinion from a new Medical Board, consisting of five Doctors.
The report of the Medical Board, SMS Hospital, Jaipur also makes it clear that termination of pregnancy will not be in favour of life of the foetus and will have adverse effects on health of the mother.
This Court, considering the said aspect about adverse effects on both, mother and foetus, has little choice. The termination of pregnancy, at this stage, may result into serious health issues for the victim as well as for the foetus.
This Court in normal course would have passed an order of termination of pregnancy, had the Authorities and medical experts would have opined that termination of pregnancy, will have no effect on the health of the victim.
The Hon'ble Supreme Court in the case of Murugan Nayakkar (supra) has taken into account the opinion of the Board permitting termination of pregnancy and the Board had opined that the baby born will be preterm and will have its own complications.
The Hon'ble Supreme Court in the case of Ms. Chanchala Kumari (supra) again considered the report of the medical board, wherein it was certified that the victim was pregnant with 24 weeks and termination of pregnancy was feasible.
The Hon'ble Supreme Court in the case of Tapasya Umesh Pisal (supra) again considered the report of the medical board and found that if the baby delivered alive, would undergo several surgeries after birth which is associated with a high morbidity and mortality. The Hon'ble Supreme Court considering the substantial (Downloaded on 22/09/2020 at 08:42:58 PM) (10 of 11) [CW-9471/2020] risk, if the child was born, permitted the termination of pregnancy as the foetus is allowed to born for limited life span.
The Hon'ble Supreme Court in the case of Meera Santosh Pal & Ors. (supra) again found that the foetus was abnormal and the risk of fetal mortality was high. The Hon'ble Supreme Court considering the report of the medical board that the foetus would not be able to survive outside the uterus, permitted termination of pregnancy.
This Court in the case of Nisha Vaishnav (supra) has considered the medical report and general condition of the victim was found normal and report had specifically recommended that the termination of pregnancy could be carried out, as per the medical fitness of the victim.
This Court has gone through the various judgments passed by the Apex Court as well as the order passed by the Division Bench of this Court in the case of State of Rajasthan Vs. S. (Supra) and in all the cases, the Courts have observed that the victim is in a fit medical stage/condition and she can undergo the procedure of termination of pregnancy without any complication.
The underlining factor in all these cases is the medical opinion, which is in favour of a victim and then the right to seek termination of pregnancy is available to the victim.
This Court finds that termination of pregnancy of the victim cannot be given in the facts of the present case. The victim herself is at great risk if the permission sought is granted. The duty of the Court is to save life of a living person.
This Court, considering the directions, which have been given by the Division Bench in the case of State of Rajasthan Vs. S. (Downloaded on 22/09/2020 at 08:42:58 PM) (11 of 11) [CW-9471/2020] (supra), deems proper to dispose of this petition by giving directions for welfare of the child.
This Court directs that the child, who may be born by the victim, shall be provided all remedial measure by the State Government, as per the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "the Juvenile Justice Act of 2015"). The District Collector, Kota is directed to ensure that the child is brought up with strict adherence to the salutory process of the Juvenile Justice Act, 2015. If the child is not adopted upon attaining the suitable age, he/she shall be got admission into good school, as per the Right of Children of Free and Compulsory Education Act, 2009.
This Court also directs that all concerned Authorities will ensure secrecy of the pregnancy and anonymity of the petitioner and child, to be born, is maintained.
Before parting with the judgment, this Court appreciates the assistance rendered by learned counsel for the petitioner-victim Mr. Arun Singh Shekhawat and Mr. Bharat Saini, AGC.
The writ petition stands disposed of with the aforesaid directions.
A copy of this order be sent to the District Collector, Kota for necessary compliance.
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