Madhya Pradesh High Court
Victim A vs The State Of Madhya Pradesh on 20 August, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:41410
JBP:41410
1 W.P. No.23895/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF AUGUST, 2024
WRIT PETITION No.23895
No. of 2024
VICTIM 'A'/MINOR THROUGH HER FATHER
Versus
STATE OF M.P. AND ANOTHER
Appearance:
Shri Kailash Dev Singh - Advocate for petitioner.
Shri Mohan Sausarkar - Government Advocate for the State.
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
reliefs:
"7.1 Issue a writ of Mandamus direction to the respondent no.2 to carrying out the termination of pregnancy of minor petitioner through a team of expert doctors immediately, in the interest of justice.
7.2 Issue a writ of Mandamus commanding the respondent no.1 to give her compensation as per the policy of the State Govt.
7.3 Issue any other relief deems fit may also be granted."
2. Inn compliance of order dated 14/8/2024, 14/8/2024, Medical Board has submitted the report with the following findings:-
findings:
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3. The case diary is also available. According to the petitioner, she was raped by Vishnu Patel @ Sonu, as a result, she has conceived and has sought permission to medically terminate the pregnancy.
4. The Supreme Court in the case of A (Mother of X) Vs. Sta State of Maharashtra & Another reported in 2024 (6) SCC 327 has held that opinion of pregnant person must be given privacy in evaluating the foreseeable environment of the person under Section 3 (3) of the Medical Termination of Pregnancy Act, 1971. Further, Supreme Court has held that the consent of a pregnant person in decision of reproductive autonomy and termination of pregnancy paramount and in case, there is a diversion in the opinion of the pregnant person and her guardian, the opinion of the minor or mentally mentally ill pregnant person must be taken into consideration as an important aspect in enabling the Court to arrive at a just conclusion.
5. The medical opinion is that the medical termination of pregnancy is a high risk process.
process
6. Section 3 of Medical Termination Termination of Pregnancy Act, 1971 reads as under:-
"3. When pregnancies may be terminated by registered medical practitioners.--
practitioners.
(1) xxx xxx xxx (2) Subject to the provisions of sub-section sub section (4), a pregnancy may be terminated by a registered medical practitioner,--
--
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24 NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 3 W.P. No.23895/2024 weeks but does not exceed twenty-four twenty four weeks in case of such category of woman as as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that--
(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 any serious physical or mental abnormality.
Explanation 1.--For
1. For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.--For
2. For the purposes of clauses (a) and
(b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman."
7. Section 3(2)(a) of the Act permits termination of pregnancy by registered medical practitioner in cases where length of pregnan pregnancy does not exceed 20 weeks or where it exceeds 20 weeks but does not exceed 24 weeks, if the continuance of pregnancy would involve a risk to life of pregnant woman or grave injury to the physical or mental health.
8. Explanation 2 to Section 3(2)(b) provides provides that for the purposes of Clause (a) and (b) where pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy, shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
9. In the instant case, the pregnancy is over 27 weeks and has been caused on account of the girl being raped. FIR No.576/2024 at Police Station Churhat, District Sidhi has been registered under Sections Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24 NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 4 W.P. No.23895/2024 376(2)(n), 376(3), 376(1) of IPC and Sections 3, 4, 5l, l, 5j(ii) and 6 of POCSO Act,, 2012.
2012. Reference may be had to the judgment of the Supreme Court in X vs. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi, 2023 (9) SCC 433 wherein the Supreme Court considered the constitu constitutional values animating the interpretation of MTP Act and MTP Rules and dealt with the Right to Reproductive Autonomy of a woman. The Supreme Court held that the MTP Act is an aid to interpretation understanding injury to mental health and held as under:-
under:
"64. When interpreting a sub-clause sub clause or part of a statutory provision, the entire section should be read together with different sub--clauses clauses being a part of an integral whole. [Balasinor Balasinor Nagrik Coop. Bank Ltd. v. Babubhai Shankerlal Pandya,, (1987) 1 SCC 606; 60 Madanlal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd.,, 1962 SCC OnLine SC 65 : 1962 Supp (3) SCR 973 : AIR 1962 SC 1543] In terms of Section 3(2)(b) 3(2)( ) of the MTP Act, not less than two RMPs must, in good faith, be of the opinion that the continuation uation of the pregnancy of any woman who falls within the ambit of Rule 3-B 3 would involve : (i)) a risk to her life; (ii)) grave injury to her physical health; or ((iii) grave injury to her mental health. Alternatively, not less than two RMPs must, in good faith,faith, be of the opinion that there is a substantial risk of the child suffering from a serious physical or mental abnormality, if born. Women who seek to avail of the benefit under Rule 3-B 3 B of the MTP Rules continue to be subject to the requirements of Section Section 3(2) of the MTP Act.
65. One of the grounds on the basis of which termination of pregnancy may be carried out is when the continuance of a pregnancy would involve risk of injury to the mental health of the woman. The expression "grave injury to her physical hysical or mental health" used in Section 3(2) is used in an overarching and all-encompassing all encompassing sense. The two Explanations appended to Section 3(2) provide the circumstances under which the anguish caused by a Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24 NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 5 W.P. No.23895/2024 pregnancy may be presumed to constitute a grave injury to the mental health of a woman.
66. Courts in the country have permitted women to terminate their pregnancies where the length of the pregnancy exceeded twenty weeks (the outer limit for the termination of the pregnancy in the unamended MTP Act) by expansively interpreting Section 5, which permitted RMPs to terminate pregnancies beyond the twenty twenty-week limit when it was necessary to save the life of the woman. In X v. Union of India [X v. Union of India,, (2017) 3 SCC 458] , Mamta Verma v. Union of India [Mamta Verma v. Union of India, India, (2018) 14 SCC 289], Meera Santosh Pal v. Union of India [Meera Meera Santosh Pal v. Union of India,, (2017) 3 SCC 462], Sarmishtha Chakrabortty v. Union of India [Sarmishtha Chakrabortty v. Union of India,, (2018) 13 SCC 339]339] , this Court permitted the termination of post twenty-week twenty week pregnancies after taking into account the risk of grave injury to the mental health of a pregnant woman by carrying the pregnancy to term.
67. The grounds for approaching courts differ and include lude various reasons such as a change in the circumstances of a woman's environment during an ongoing pregnancy, including risk to life, [A [ v. Union of India,, (2018) 14 SCC 75; X v. Union of India,, (2017) 3 SCC 458; Meera Santosh Pal v. Union of India, (2017) 3 SCC 462; Tapasya Umesh Pisal v. Union of India,, (2018) 12 SCC 57; Mamta Verma v. Union of India,, (2018) 14 SCC 289] risk to mental health, [X [ v. Union of India,, (2017) 3 SCC 458; Meera Santosh Pal v. Union of India,, (2017) 3 SCC 462; Sarmishtha Chakrabortty Ch v. Union of India India, (2018) 13 SCC 339; Mamta Verma v. Union of India India, (2018) 14 SCC 289; Z v. State of Bihar,, (2018) 11 SCC 572 : (2018) 2 SCC (Cri) 675] discovery of foetal anomalies, [A v. Union of India, India (2018) 14 SCC 75; Sarmishtha Chakrabortty v. Union of India,, (2018) 13 SCC 339; Tapasya Umesh Pisal v. Union of India,, (2018) 12 SCC 57; Mamta Verma v. Union of India,, (2018) 14 SCC 289] late discovery of pregnancy in case of minors and women with disabilities, [X [ v. Union of India,, (2020) 19 SCC CC 806] and pregnancies resulting from sexual assault or Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24 NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 6 W.P. No.23895/2024 rape. [Z v. State of Bihar, Bihar, (2018) 11 SCC 572 : (2018) 2 SCC (Cri) 675; X v. Union of India,, (2020) 19 SCC 806] These are illustrative situations thrown up by cases which travel to the court. Although Although the rulings in these cases recognised grave physical and mental health harms and the violation of the rights of women caused by the denial of the option to terminate unwanted pregnancies, the relief provided to the individual petitioner significantly var varied.
68. The expression "mental health" has a wide connotation and means much more than the absence of a mental impairment or a mental illness. The World Health Organisation defines "mental health" as a state of "mental well-being being that enables people to cope with the stresses of life, realise their abilities, learn well and work well, and contribute to their community". [World Health Organisation, "Promoting Mental Health: Co Concepts, Emerging Evidence, Practice (Summary Report)" (2004).] The determination of the status of one's mental health is located in one's self and experiences within one's environment and social context. Our understanding of the term "mental health" cannot be confined to medical terms or medical language, but should be understood in common parlance. The MTP Act itself recognises the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that whilee interpreting "grave injury to her physical or mental health", account may be taken of the pregnant woman's actual or reasonably foreseeable environment. The consideration of a woman's "actual or reasonably foreseeable environment" becomes pertinent, espe especially when determining the risk of injury to the mental health of a woman."
10. In the case of A (Mother of X) (supra), the Supreme Court while considering the statements, objects and reasons of the MTP Act and also the aspect of physical and mental health health of the pregnant person, held as under:-
"28. The powers vested under the Constitution in the High Court and this Court allow them to enforce fundamental Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24 NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 7 W.P. No.23895/2024 rights guaranteed under Part III of the Constitution. When a person approaches the court for permission permission to terminate a pregnancy, the courts apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In doing so the court relies on the opinion of the Medical Board constituted under the MTP Act for or their medical expertise. The court would thereafter apply their judicial mind to the opinion of the Medical Board. Therefore, the Medical Board cannot merely state that the grounds under Section 3(2-B) 3(2 B) of the MTP Act are not met. The exercise of the jurisdiction jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a Medical Board must examine the pregnant person aand opine on the aspect of the risk to their physical and mental health.
29. The MTP Act has removed the restriction on the length of the pregnancy for termination in only two instances. Section 5 of the MTP Act prescribes that a pregnancy may be terminated, terminated, regardless of the gestational age, if the medical practitioner is of the opinion formed in good faith that the termination is immediately necessary to save the life of the pregnant person. Section 3(2- 3(2-B) of the Act stipulates that no limit shall apply on the length of the pregnancy for terminating a foetus with substantial abnormalities. The legislation has made a value judgment in Section 3(2-B) 3(2 B) of the Act, that a substantially abnormal foetus would be more injurious to the mental and physical health off a woman than any other circumstance. In this case, the circumstance against which the provision is comparable is rape of a minor. To deny the same enabling provision of the law would appear prima facie unreasonable and arbitrary. The value judgment of th the legislation does not appear to be based on scientific parameters but rather on a notion that a substantially abnormal foetus will inflict the most aggravated form of injury to the pregnant person. This formed the basis for this Court to exercise its powers powers and allow the termination of pregnancy in its order dated 22-4-2024 22 [A v. State of Maharashtra,, 2024 SCC OnLine SC 608]. The provision is Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24 NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 8 W.P. No.23895/2024 arguably suspect on the ground that it unreasonably alters the autonomy of a person by classifying a substantially abnormal foetus differently than instances such as incest or rape. This issue may be examined in an appropriate proceeding should it become necessary.
n
30. Moreover, we are conscious of the fact that the decision to terminate pregnancy is one which a person takes seriously. The guidelines to terminate pregnancy as well as the scheme of the MTP Act show the seriousness attached to the well-being well being of the pregnan pregnant person throughout the process envisaged under the MTP Act. Change in the opinion of the Medical Board may cause undue trauma and exertion to a pregnant person whose mental health is understandably under distress. While we understand the need for a Medical Medical Board to issue a clarificatory opinion based on the facts and circumstances of each case, the board must explain the reasons for the issuance of the clarification and, in particular, if their opinion has changed from the earlier report. Pregnant persons seeking termination of pregnancy seek predictability for their future. The uncertainty caused by changing opinions of the Medical Board must therefore balance the distress it would cause to the pregnant person by providing cogent and sound reasons."
11. In A (Mother of X) (supra), (supra), the Supreme Court by order dated 22.04.2024 had permitted the termination of pregnancy even when the minor was in the 30th week of her pregnancy. However, subsequently, the decision was taken by the minor and parents not to put th the child at risk.
12. Even during the course of arguments, it was submitted by the counsel for the petitioner that the victim as well as her father have decided to proceed further with the termination of pregnancy in spite of the fact that there is a high risk risk in the termination of pregnancy.
13. In view of the above, the petition is allowed.. This court permits the termination of pregnancy subject to the following conditions:
conditions:-Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24
NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 9 W.P. No.23895/2024
(i) The petitioner shall appear before the Dean, Shyam Shah Medical College, Rewa on 22/8/2024.
(ii) A specialised team of Doctors shall take a decision as to when to terminate the pregnancy. All necessary care and caution shall be taken by the Doctors while carrying out the procedure for termination of the pregnancy.
pregnancy
(iii) The procedure ure of termination of pregnancy will be carried out in the presence of the expert team of doctors. The expert doctors will explain to the family members as well as the petitioner the risk of getting the termination of her pregnancy and also other factors.
(iv) Every care and caution will be taken by the doctors while terminating the pregnancy. All medical attention and other medical facilities including that of a presence of a Pediatrician as well as a Radiologist and other required doctors will be made available vailable to her.
(v) The post operative care up to the extent required, will be extended to the petitioner. It will be the duty of the State Government to take care of the child, if born alive.
(vi) The doctors will also ensure that a sample from the ffoetus is protected for DNA examination and as and when required will be handed over to the prosecution for using in the criminal case itself.
14. A copy of this order be also kept in the police case diary and shall also be filed alongwith the charge-sheet.
charge
15. Report of the Board be again kept in the sealed cover as the name of the prosecutrix is mentioned in the same and in order to hide the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24 NEUTRAL CITATION NO. 2024:MPHC-JBP:41410 JBP:41410 10 W.P. No.23895/2024 identity of the prosecutrix the sealed cover shall never be opened, ex except when required by the Court.
Court
16. Petition is allowed in the above terms.
(G.S. AHLUWALIA) JUDGE Arun* Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 20-08-2024 17:41:24