Madhya Pradesh High Court
Sundarlal vs The State Of Madhya Pradesh on 6 December, 2017
Equivalent citations: AIR 2018 (NOC) 589 (M.P.)
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. W.P. No.20961/2017
Parties Name Sundarlal.
Vs.
The State of M.P. & others.
Date of Judgment 06/12/17
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting Yes.
Name of counsels for parties Petitioner: Mr. Parag S. Chaturvedi,
Advocate
Respondent/State: Mr. Pushpendra Yadav,
Deputy Advocate General.
Law laid down The victim of rape cannot be compelled to give birth to a child of the rapist. If conditions enumerated in the Act of 1971 are fulfilled, the pregnancy of victim can be terminated.
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 of India.
The pregnancy can be terminated if conditions mentioned in Section 3 or Section 5 of the Act are satisfied.
Significant paragraph numbers 12, 15 & 18.
(Order) 06.12.2017 In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for a direction to the respondents for terminating the pregnancy of his minor daughter who is allegedly a rape victim. In addition, petitioner has prayed for grant of suitable compensation.
2. The case of the petitioner is that he lodged a report before Police Station Mundi, District Khandwa on 15.10.2017 stating that his minor daughter has been kidnapped. The respondent No.6, in turn, investigated the matter and arrested the
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W.P. No. 20961 of 2017accused. The offences under Section 363, 366, 376 of IPC read with Section 4 & 6 of POCOS Act were alleged against the accused. The police authority secured custody of the minor daughter (herein after called as "victim") of petitioner from the accused and she was handed-over to the petitioner by Supurdginama dated 31.10.2017 (Annexure-P/2). The police authority by communication dated 31.10.2017 informed the petitioner that the victim is having pregnancy of about 16 weeks.
3. The petitioner contended that the victim is a minor. The petitioner being guardian has given his consent for terminating the pregnancy. If such pregnancy is forced upon the victim, it will violate her right of "personal liberty" as enshrined under Article 21 of the Constitution of India. Mr. Chaturvedi, learned counsel for the petitioner in support of this contention relied on Section 3 of the Medical Termination of Pregnancy Act, 1971 (the Act of 1971) and the judgment of Supreme Court reported in 2015 (8) SCC 721, [Chandrakant Jayantilal Suthar & another vs. State of Gujarat].
4. Per-contra, Mr. Yadav, learned Deputy A.G. produced the documents dated 04.12.2017, 05.12.2017 and the consent letter of petitioner whereby he has given consent for examining the victim relating to pregnancy. By letter dated 04.12.2017 the SHO, P.S. Mundi, District Khandwa requested the Gynaecologist, District Hospital Khandwa to examine and give report on following points: (i) the duration of pregnancy of the victim; (ii) whether the victim's pregnancy can be terminated; and (iii) any other opinion which is justifiable. In the bottom of this letter, the Gynaecologist, Dr. Laxmi (the complete name of doctor is not legible in the document) has given her opinion: viz (i) that the victim is having pregnancy of a period of five months; (ii) upto five months (20 weeks), the pregnancy can be terminated; & (iii) NIL.
5. Mr. Pushpendra Yadav, learned Deputy AG also placed reliance on Section 3 of the Act of 1971. He assisted the Court by placing reliance on 2013 (1) MPHT 451, [Hallo Bi @ Halima vs. State of MP & others].
6. No other point has been pressed by the learned counsel for the parties.
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W.P. No. 20961 of 20177. I have heard the parties at length and perused the record.
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.
(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]
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W.P. No. 20961 of 20179. 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 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
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W.P. No. 20961 of 2017of 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
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by two or more registered medical 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
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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 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
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W.P. No. 20961 of 2017the 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.
(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.
C.C. today.
(Sujoy Paul)
s@if/YS Judge
Digitally signed by SAIFAN KHAN
Date: 2017.12.07 14:40:10 +05'30'