Arti Alias Archana Bai Sahu vs The State Of Madhya Pradesh on 23 June, 2020

[Cites 1, Cited by 6]

Madhya Pradesh High Court

Arti Alias Archana Bai Sahu vs The State Of Madhya Pradesh on 23 June, 2020

This petition has been filed under Article 226 of the Constitution of India by the petitioner, who happens to be the mother of an unfortunate victim of rape aged 14 years 09 months only. The relief sought in the petition is termination of pregnancy of the victim which is 23-24 weeks old on account of rape committed on her on 16.01.2020 and an FIR to this effect having lodged at crime No. 505/2020 at Police Station: Adhartal, Jabalpur on 04.05.2020.

Apparently, initially, the offence was not reported by the victim but subsequently when the victim got pregnant, the same was reported. This petition has been filed by the mother of the prosecutrix for termination of pregnancy of the victim.

This Court, on 4.6.2020, directed the learned counsel for the State to get the victim medically examined and report of the doctor be filed. The matter was kept on 9.6.2020, however, on 9.6.2020 the report of the doctor was not filed by the State hence again the matter was fixed for hearing on 12.06.2020 but as the report was not placed on record, it was directed to the Registry to keep the report in the file and the matter was again listed on 15.06.2020. On 15.06.2020, after perusing the report so placed on record, this Court found that the report was vague and certain clarifications were again sought from the Medical Board by relying upon the Division Bench decision of this Court passed in the case of Raisa bi vs. State of M.P.( W.A. No. 1161/2019) in an identical case. Today, when the matter came up for hearing, although the report has already been filed yesterday, but still, the Registry has not uploaded it in the file, however, looking to the urgency involved in the matter, Registry is directed to keep the same in the file immediately.

On perusal of the report, this Court finds that as per the Medical Board's recommendations, though the pregnancy is of 22 weeks old, it can still be terminated if performed by gynecologists with all the facilities available in the Medical College, Jabalpur. It would be expedient to reproduce the said report at this juncture :-

"fpfdRlk ny ds lnL;ksa us ekuuh; mPp U;k;ky; ds vkns'k ds ifjikyu esa Fkkuk v/kkjrky ds lc baLisDVj xfjek feJk ds }kjk fpfdRlky; esa ykbZ xbZ jsi fifMrk dq- ****** firk ****** mez 15 o"kZ fuoklh xzke ****** Fkkuk v/kkjrky dk fnukad 19-06-2020 le; nksigj 1 cts dks lksuksxzkQh ijh{k.k fd;k x;k ijh{k.k esa ik;k x;k fd dq- ****** dks 23 lIrkg 4 fnu dk thfor xHkZ gSA dq-****** dh euksfLFkfr lkekU; gS] L=hjksx ls lacaf/kr tkap fd;s tkus ij ik;k x;k fd budk jkDrpki] 'kjhj dk rkieku] ukMh dh xfr ,oa g~n; ,oa 'olu ls lacaf/kr dskbZ Hkh ijs'kkuh ugha gS] buds 'kjhj esa dgh Hkh lwtu ugha gSA bUgsa yxHkx 22 ls 24 lIrkg dk xHkZ gS] rFkk budk xHkZLFk f'k'kq thfor voLFkk esa gSA ,e-Vh-ih- vf/kfu;e 1971 ds rgr 20 lIrkg rd gh xHkZikr dh vuqefr gks ldrh gSA budk vkS"kf/k;ksa ls xHkZ lekiu djus ij vR;f/kd jDrJko dh laHkkouk jgsxhA tks budh thou ds fy;s ? kkrd gks ldrk gS] rFkk 'kY; fdz;k ls xHkZ lekiu djus ij Hkh ekW ds thou dks [krjk gks ldrk gSA bl fLFkfr esa thfor cPpk iSnk gksxk mlds fy;s thfor jgus dh laHkkouk Hkh de gksxhA dq- ****** ds xHkZ dh fLFkfr ,ao budh 'kkjhfjd fLFkfr ,oa mez dks ns[krs gq;s vxj ekuuh; U;k;ky; xHkZ lekiu dk vkns'k nsrs gS] rks bl <ax dks xHkZ lekiu lHkh izdkj dh lqfo/kkvksa ls ;qDr mPp fpfdRlk lqfo/kk okys fpfdRlk laLFkku esfMdy dkWyst fpfdRlky; esa L=hjksx fo'ks"kKksa ds }kjk gh fd;k tkuk ejht ds fgr esa gksxkA bl fLFkfr;ksa dks /;ku esa j[krs gq;s ekuuh; U;k;ky; ds }kjk tks vkns'k fn;k tk;sxkA fpfdRlky; iz'kklu mldk ikyu djsxkA^^ (name of the victim is not being disclosed) On perusal of the report, this Court finds that the recommendations so made fall within the four corners of the observations made by the Division Bench of this Court in W.A.No. 1161/2019 (supra).

Learned counsel for the petitioner has submitted that looking to the age of the prosecutrix and the resultant trauma which may be faced by her if pregnancy is not terminated, it would be devastating not only to her for the rest of her life but also to her parents who are to look after her. Thus, it is submitted that the pregnancy of the victim of rape be directed to be terminated.

Learned counsel for the State, on the other hand, has submitted that as recommended by the Medical Board, pregnancy may be terminated, however, it is also submitted that the conditions which have been imposed by the Division Bench in W.A.No. 1161/2019 be also imposed in the present case.

Having considered the rival submissions, this Court is of the considered opinion that as the pregnancy has occurred on account of an offence of rape and the victim is a poor 14 years old girl, it would not be expedient to deny her the right to live with dignity. It is a fit case where pregnancy can be terminated as has been recommended by the Medical Board.

As a result the petition stands allowed. It is directed that the respondents shall undertake steps to immediately terminate the pregnancy of the petitioner's daughter in a Government hospital/college under the supervision of the experts. The petitioner's daughter would also be provided all the necessary facilities and care in the Government Medical College/Hospital. As it would be the duty of the respondent authorities to provide the best and safest medical assistance to the petitioner's daughter, this court leaves the choice of College or Hospital to the respondent authorities for undertaking the exercise of termination of pregnancy.

The respondents are also directed to ensure that the DNA sample of the fetus and the consequent reports thereof shall be duly preserved in accordance with the provisions of law so that the same would be legally admissible and available for future reference in the criminal case that has been filed by the petitioner and her daughter. This court also makes it clear that the aforesaid directions are issued on the clear and unequivocal undertaking and statement made by the petitioner, that they are willing to take full responsibility and risk for undertaking medical termination of pregnancy and that they expressly indemnify and exonerate the respondent authorities, doctors and all others involved, of any responsibility or liability in respect of the outcome of the same. The learned counsel for the petitioner, on instructions from the petitioner, also states that the petitioner and her daughter fully understand and are mentally prepared to accept not just the responsibility for termination of pregnancy of the petitioner's daughter but the risk and result thereof as well.

Looking to the age of the fetus and the aforesaid undertaking given before this Court, the aforesaid exercise of termination of pregnancy may be taken up by the respondent authorities with active and positive assistance by the petitioner and her daughter as early as possible. For the aforesaid purpose the petitioner shall immediately contact the authorities concerned. The learned Panel Lawyer is also directed to inform the authorities and for that purpose a free copy of this order be given to him.

As a parting note, this court is also at pains to observe the manner with which this petition has been handled by all the stake holders, viz., the counsel for the petitioner, the State as also by the registry of this court and this court would be failing in its duties if these lapses are not brought to the notice of all the concerned. It is surprising that when the petition was drafted on 11.05.2020 why it took 20 days for the counsel for the petitioner to file the same. Similarly, the initially the medical report submitted by the State lacked certain important aspects and lastly, even that report was not placed in the file by the registry on the same day. To sum up, the petition was drafted on 11.05.2020, it was filed on 01.06.2020 and is being disposed of today on 23.06.2020, that makes it 23 days for disposal of the petition filed for medical termination of pregnancy which, by no stretch of imagination can be said to be encouraging and almost defeats the very purpose for which the petitioner has knocked the doors of this Court. This court sincerely believes that hence from all the parties concerned shall endeavor to have such cases filed, listed, dealt with by the State and disposed of by this court at the earliest so that a victim of rape can be saved from the life threatening and lifelong trauma.

Accordingly, the petition stands disposed of.

Certified copy as per rules.

(Subodh Abhyankar) Judge Vikram Digitally signed by VIKRAM SINGH Date: 2020.06.23 17:17:50 +05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court