Madhya Pradesh High Court
Yasmin Siddiqui vs The State Of Madhya Pradesh on 30 November, 2018
[1]
WP. Nos.27328/2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. & WP. No.27328/2018
Parties Name Ms. X.
vs.
The State of M.P. & Ors.
Date of Order 30/11/2018
Bench Constituted Single Bench
Order delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for parties For petitioner: Shri Ashish Mishra,
Advocate
For Respondents-State: Shri Rahul
Mishra, G.A.
Law laid down -
Significant paragraph -
numbers
ORDER
30/11/2018 This is a petition filed under Article 226 of the Constitution seeking permission to terminate the pregnancy of the victim of the rape.
2. This Court by order dated 26-11-2018 directed the Dean, Netaji Subhash Chand Bose, Medical College, Jabalpur to constitute a three members committee of registered medical practitioners to examine the petitioner as per the Act of 1971. The Dean by his report dated 29-11-2018 opined that three members committee have examined the petitioner and for the reasons mentioned in the report, it is opined that the patient can undergo [2] WP. Nos.27328/2018 termination of pregnancy under the provisions of Act of 1971.
3. Similar point was dealt with by this Court in WP. No.20961/17 (Sunderlal vs. State of M.P.) decided on 06-12-2017 (Annexure P/3). This Court opined as under:-
"8. Before dealing with the rival contentions of the parties, it is apposite to refer the relevant provision of the Act. Section 3 reads as under:
"3. When pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed 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.
Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment.
[3] WP. Nos.27328/2018(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a [mentally ill person], shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
[Emphasis Supplied]
9. Section 5 provides that pregnancy can be terminated, if as per the opinion of two registered medical practitioners, formed in good faith, termination of pregnancy is immediately necessary to save the life of the pregnant woman.
10. It is apposite to remember that the Indian Penal Code was enacted in the year 1860 and abortion was a crime punishable by imprisonment upto 7 years and also with a fine. The Exception provided was in order to save life of the women. Large number of women died attempting illegal abortions and finally the Government of India constituted a Committee known as "Abortion Committee" and the Committee submitted its report in December, 1966. Based upon the report of the Abortion Study Committee and after inviting objections and suggestions, the Medical Termination of Pregnancy Act, 1971 was enacted in 1971. The Medical Termination of Pregnancy Act, 1971 provides for abortion, in case of woman whose physical/mental health are endangered by the pregnancy, woman facing birth of a potentially handicapped or malform child, rape, pregnancy in unmarried girls under the age of 18, with the consent of guardian, pregnancies in lunatics, with the consent of a guardian, pregnancies which are result of failure in sterilisation. This Act provides for termination of pregnancy in case of rape which is in fact, forced sex with the victim who was led into prostitution by use of force and, therefore, in the peculiar facts and circumstances of the case, keeping in view, the statement of the petitioner, the Act of 1971 does permit abortion in the peculiar facts and circumstances of the present case also. The Act of 1971 provides for a legal method of abortion in respect of cases mentioned in the Act. It is really shocking that in our country every year almost 11 million abortions take place and 20000 women die every year due to abortion related complications. Most abortion related maternal deaths are attributable to illegal abortions and, therefore, the Medical Termination of Pregnancy Act, 1971 has authorised a procedure for abortion in respect of cases mentioned in the Act. It certainly provides for a safeguard to women to abort a child keeping in view the statutory provisions as contained under the Act. Pre-natal Test for [4] WP. Nos.27328/2018 determining the sex of the foetus, is a crime under the Indian Laws and a punishment is also provided under various statutory provisions for termination of pregnancy and for determining the sex of foetus. The Medical Termination of Pregnancy Act, 1971 was enacted by the Parliament in 22 nd year of the Republic of India and it came into force on 1-4- 1972. Earlier under the Indian Penal Code abortion was made a crime for which mother as well as the abortionist could be punished except where it had to be induced in order to save life of the mother. Provisions relating to abortion under the Indian Penal Code were enacted about a century ago, keeping in view the then British Law on the subject. The Medical Termination of Pregnancy Act, 1971 provides for termination of pregnancy on health grounds and in those cases where there is a danger to life or risk to physical or mental health of a woman and also on humanitarian ground where the pregnancy arises from sex crimes like rape or intercourse with lunatic woman etc.
11. A careful reading of Section 3 of the Act of 1971 makes it clear that where length of pregnancy does not exceed 20 weeks and not less then two registered medical practitioners have formed an opinion in good faith that the continuance of pregnancy would involve a risk to the life of pregnant woman or of grave injury to her physical or mental health, the pregnancy can be terminated by a registered medical practitioner. This act of medical practitioner, if aforesaid conditions are satisfied, will not attract the penal provisions mentioned in Indian Penal Code. In other words, such registered medical practitioner shall not be guilty of any offence under the IPC or under any other law for the time being enforce if conditions mentioned in Section 3 or Section 5 of the Act are satisfied.
12. In Explanation I, the law makers made it clear that where pregnancy is alleged by victim because of rape, a presumption can be drawn that such pregnancy constitute a grave injury to the mental health of pregnant woman. In the present case, this is not in dispute that victim is a minor and petitioner is praying for termination of pregnancy because her daughter is a rape victim. This court in Hallo Bi (supra) opined that we cannot force a victim of violent rape/forced sex to give birth to a child of a rapist. The anguish and the humiliation which the victim is suffering daily, will certainly cause a grave injury to her mental health. Not only this, the child will also suffer mental anguish in case the lady gives birth to a child.
13. In the present case, the victim was not subjected to medical examination by two or more registered medical [5] WP. Nos.27328/2018 practitioners which is a statutory requirement as per Section 3(2)(b) of the Act of 1971. In absence of fulfilling this statutory requirement, permission cannot be granted for terminating the pregnancy.
14. The Apex court in 2009 (9) SCC (Suchita Srivastava and another vs. Chandigarh Administration) opined that Section 3(4)(a) and 5(1) of the Act of 1971 creates exceptions to the rule of pregnant woman's consent, namely, when pregnant woman is below 18 years. Thus, in the present case, consent of victim is not required. More so when petitioner/guardian is willing to furnish such consent. In the said judgment, it was further held that 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 reason that proceeding with an abortion at such a late stage (19-20 weeks of gestation period) poses significant risks to the physical health of the victim.
15. The judgment of Suchita Srivastava (supra) was consistently followed by Supreme Court. In 2017 (3) SC 462 (Meera Santosh Pal and others vs. Union of India and others), the Apex court followed the said principles. In the case of Meera Santosh Pal (supra), the Supreme Court permitted to woman to undergo medical examination under the Act of 1971 and directed the doctors of the hospital to take appropriate action for termination of pregnancy of petitioner No.1. In 2017 (3) SCC 458 (X and others vs. Union of India and others), the Apex Court reiterated the principles laid down in Suchita Srivastava (supra) and held 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.
16. In the present case, as noticed, the victim was not medically examined by two or more registered medical practitioners. Thus, conditions mentioned in Section 3 are not fulfilled. At the same time, it cannot be forgotten that the singular opinion of gynecologist shows that pregnancy is about 20 weeks. Thus, there is a great urgency in this matter. This court cannot shut its eyes from the statutory limit for terminating a pregnancy [see para 45 of the judgment of Suchita Shrivastava (supra)].
17. Apart from this, Section 5 permits termination of pregnancy in relation to length of pregnancy mentioned in sub-section (2) of Section 3 of the Act of 1971 if as per the [6] WP. Nos.27328/2018 medical opinion termination of such pregnancy is necessary to save the life of pregnant woman. As noticed, these aspects require medical examination by the medical practitioner.
18. Considering the seriousness and urgency of this matter, this petition is dispose of with following directions:
(i) The victim is a minor and; therefore, if petitioner gives consent for terminating the pregnancy of victim, there shall be no need to obtain the willingness of the victim;
(ii) The victim/guardian has a valuable right to take a decision regarding termination of pregnancy and such right is flowing from Article 21 of the Constitution;
(iii) A victim of rape cannot be compelled to give berth to a child of rapist. Thus, if conditions of the Act of 1971 are fulfilled, the pregnancy of victim can be terminated;
(iv) The respondents shall constitute a Committee of three registered medical practitioners as per the Act of 1971 and such Committee/practitioners shall form opinion in good faith relating to termination of pregnancy of the victim. Needless to mention that Committee has to form its opinion as per the mandate of Act of 1971. The Committee shall be constituted within 24 hours from the date of receipt of this order and shall examine the victim within 24 hours therefrom. Needless to emphasis that in the event of difference of opinion amongst medical practitioners, the majority view will prevail;
(v) If the Committee comes to the conclusion that pregnancy of the victim can be terminated in consonance with Section 3 or Section 5 of the Act, the respondents shall undertake the exercise of terminating the pregnancy as per law forthwith. Needless to emphasize that victim shall be provided with all medical assistance and care after pregnancy is terminated. She will be provided with medical assistance by the respondent-State;
(vi) The respondents are directed that in the event pregnancy is terminated, they will keep DNA sample of the foetus and shall also keep the same in a sealed cover as per procedure prescribed;
(vii) Since counsel for the petitioner has not pressed the relief regarding compensation, this question is left open and liberty is reserved to the petitioner to file appropriate proceedings in this regard;
(viii) At the cost of repetition, in my opinion, there is a great urgency in this matter, considering the duration of pregnancy.
Thus, it shall be the duty of the respondents to ensure strict compliance of this order within stipulated time;
(ix) Respondent No.2 and 3 shall personally monitor and ensure that this order has been complied with.
[7] WP. Nos.27328/2018(x) A typed copy of this order be given to Shri Pushpendra Yadav, learned Deputy Advocate General forthwith for official use. Shri Yadav is requested to communicate this order to all the respondents immediately.
19. With the aforesaid directions, the petition is disposed of.
4. The victim in the said case was also a rape victim and this Court after considering various judgments of Supreme Court and this Court passed categorical directions contained in Para 18 of the said order. The present petitioner is similarly situated. Thus, this petition is disposed of with following directions:-
(1) If the petitioner gives consent for termination of pregnancy, in view of report dated 29-11-2018 the Dean, Medical College Jabalpur shall take steps to terminate the pregnancy of the petitioner as early as possible. The victim shall be provided with all medical assistance and care during said operation/treatment and even after pregnancy is terminated. The entire medical assistance shall be free of cost. (2) Respondents are directed to keep DNA sample of fetus in a sealed cover as per the procedure prescribed.
5. At the cost of repetition, it is clarified that it shall be the duty of the respondents to comply with Clause 1 of this order in letter and spirit expeditiously, preferably within three days from the date of communication of this order.
6. Shri Ashish Mishra submits that petitioner shall remain present the petitioner before Dean, Medical College, Jabalpur tomorrow (01-12-2018) at 11 am.
7. A typed copy of this order be given to Shri Rahul Mishra for its onwards communication to the respondents.
[8] WP. Nos.27328/20188. Registry shall keep the report of Dean, Medical College, Jabalpur dated 29-11-2018 in a sealed cover carefully in the file of present case.
9. With the aforesaid observations, this petition is disposed of. No cost.
10. C.C. today.
(Sujoy Paul) Judge mohsin Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2018.11.30 03:15:46 -08'00'