Madhya Pradesh High Court
Victim X (Minor) Thr. Her Father Kallu ... vs The State Of Madhya Pradesh on 2 December, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH 1
WP 17987 of 2020
Victim ''X'' (minor) through her father Kallu Banjara vs. State
of MP and Ors.
Gwalior, Dated :02/12/2020
Shri Vivek Jain, counsel for the petitioner.
Shri Ajay Raghuvanshi, Panel Lawyer for the State.
Heard finally through Video Conferencing.
This petition under Article 226 of the Constitution of India has
been filed, seeking the following reliefs:-
''(i) That the police authorities may be directed to
fairly investigate the matter by directing investigation
from the angle of section 376 IPC and POCSO Act in
free and fair manner.
(ii) the respondent No.7 may be directed to get the
Medical Termination of pregnancy of the petitioner carried out after following the mandatory provisions of MTP Act and to preserve the DNA of the foetus;
(iii) any other relief deemed fit in the facts and circumstances of the case doing justice in the matter including handing over the investigation to a independent agency be also granted.'' (2) This petition has been filed by the minor prosecutrix through her father, alleging that she was abducted by the respondents No.5 and 6 in the month of December, 2019 and was subjected to rape and she was recovered on 17/10/2020 at Village Meriyakhedi, Police Station Chachoda, District Guna. It is submitted that although the police has registered the FIR at Crime No.214/2019 under Section 363 of IPC but is deliberately ignoring the pregnancy of the petitioner. It is further submitted that when the father of the petitioner got her medically examined, then it was found that the petitioner is carrying a THE HIGH COURT OF MADHYA PRADESH 2 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
pregnancy of three months. Since the petitioner was recovered in the month of October, 2020, therefore, it is clear that she got pregnant while she was in illegal custody of the respondents No.5 and 6. (3) One of the prayer of the petitioner is that the police may be directed to investigate the matter properly. Another prayer of the petitioner is that she is a minor and it would not be conducive for her health to give birth to a child and accordingly, under the provisions of Sections 3 and 5(1) of Medical Termination of Pregnancy Act, her pregnancy may be terminated.
(4) This Court by order dated 24/11/2020 had directed the Chief Medical and Health Officer, Guna to constitute a Medical Board to medically examine the petitioner as to whether the pregnancy of the petitioner can be terminated or not. The Medical Board, after medically examining the petitioner, has submitted the following report:-
lsok esa] Jheku egkf/kDrk] e-iz- mPp U;k;ky; [k.MihB Xokfy;j fo"k; %& ukckfyx dk esfMdy cksMZ }kjk ijh{k.k o vfHkerA lanHkZ %& dk;kZ- egkf/koDrk e-iz- mPp U;k;ky; [k.MihB Xokfy;j ds i= dz- 7705@2020 fnukad 26-11-2020 }kjk %& eq[; fpfdRlk ,oa LokLF; vf/kdkjh egksn; xquk egksn;] mijksDr fo"k; esa ys[k gS fd mDr ihfM+rk dk esfMdy cksMZ }kjk ijh{k.k fd;k x;k gS tks fuEukuqlkj gSA eSa viuh iq=h ds vkarfjd tkap djokus ds fy;s rS;kj gSA vuhrk iq=h dYyw catkjk mez yxHkx 15 o"kZ F fuoklh %& maph cyMh] lkubZ] e`xokl THE HIGH COURT OF MADHYA PRADESH 3 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
O/E M/I A Black Till Present Over left side of Temporal region H/o Ammenorhea 3 and half month LMP -not none UPT - HCG reactive - 27-11-20 DH Guna On Examination Afebril, P. 74.m, BP 110/70mmHg, SPO2 99% P/A soft ut 12-14 weeks P/S Cx os Pin Point MkW- Jherh 'kkjnk Hkksyk }kjk ihfM+rk dk ,usLFksfVd ijh{k.k fd;k x;kA vko';drkuqlkj lHkh [krjksa dks voxr djkrs gq; mfpr csgks'kh ijhtuksa dh ftEesnkjh ij iznku dh tk;sxhA Opinion :- mijksDr ijh{k.k nkSjku ;g ik;k x;k gS fd ihfM+rk ukckfyx vfookfgr gSA ftlls mlds tuukax de fodflr gS vkSj ijh{k.k djus ls 12 ls 14 lIrkg dk xHkZ gksuk izrhr gksrk gSA pwafd ihfM+rk gkbZ fjLd gS o cPpknkuh dk eqag vifjiDo NksVk gSA blfy;s ;fn vko';d gS rks lsds.M Vz~k;feLVj dk xHkZ lekiu gsrq ihfM+rk dks esfMdy dkWyst Xokfy;j (Vjljh lsaVj ) esa fLdYM esaustesaV gsrq jsQj fd;k tkuk mfpr gksxkA fnukad 27-11-2020 1-MkW Jherh m"kk pkSjfl;k ( L=h ,oa izlwfrjksx fo'ks"kK ) ftyk fpfdRlky; xquk ( e-iz-) 2- MkW- Jherh 'kkjnk Hkksyk ( ,usfLFkfl;k fo'ks"kK ) ftyk fpfdRlky; xquk ( e-iz-) (5) Thus, it is clear that not only the petitioner is minor but is also carrying the pregnancy of 12 to 14 weeks and her uterus is not fully developed. She was abducted in the month of December, 2019 and was recovered on 17/10/2020 and she is carrying pregnancy of 12 to 14 weeks.
(6) Considered the submissions regarding Medical Termination of Pregnancy.
(7) The relevant statutory provisions, i.e. Sections 3 and 5 (1) of THE HIGH COURT OF MADHYA PRADESH 4 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
the Medical Termination of Pregnancy Act 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 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 pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not THE HIGH COURT OF MADHYA PRADESH 5 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.
5.Sections 3 and 4 when not to apply.- (1) The provisions of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman."
(8) This Court is dealing with the case of a child aged about 15 years, who is carrying a child of a person, against whom the allegations of rape have been made and a criminal case also been registered. Not only this, the child will also have social stigma throughout his life and the girl, who is 15 years of age, has to deliver a child which will certainly result in life threat to the pregnant minor girl.
(9) The Supreme Court in the case of Murugan Nayakkar Vs. Union of India & Ors. in Writ Petition (Civil) No.749/2017 by order dated 6/9/2017 has held as under:-
"The petitioner who is a 13 years old girl and a victim of alleged rape and sexual abuse, has preferred this writ petition for termination of her pregnancy. When the matter was listed on 28.8.2017, this Court has directed constitution of a Medical Board at Sir J.J. Group THE HIGH COURT OF MADHYA PRADESH 6 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
of Hospitals, Mumbai. Be it noted, this Court had also mentioned the composition of the team of doctors. The petitioner has appeared before the Medical Board on 1.9.2017 and the Medical Board that has been constituted by the order of this Court expressed the opinion Signature Not Verified Digitally signed by GULSHANKUMAR that the termination of pregnancy should be carried out. That ARORA Date: 2017.09.06 18:28:22 IST Reason: apart, it has also been opined that termination of pregnancy at this stage or delivery at term will have equal risks to the mother. The Board has also expressed the view that the baby born will be preterm and will have its own complications and would require Neonatal Intensive Care Unit (N.I.C.U.)admission.
We have heard Ms. Sneha Mukherjee, learned counsel appearing for the petitioner, Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra. Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.
In view of the aforesaid premise, we direct the petitioner to remain present at the Sir J.J. Group of Hospitals, Mumbai in the evening of 7.9.2017 so that the termination of pregnancy can be carried out preferably on 8.9.2017. Mr. Nishant R. Katneshwarkar shall apprise the Dean of Sir J.J. Group of Hospitals, Mumbai so that he/she can make necessary arrangements for termination of the pregnancy.
A copy of the order passed today be handed over to learned counsel for the petitioner and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra.
The writ petition is accordingly disposed of. There shall be no order as to costs."
(10) In light of the aforesaid judgment, considering the age of the THE HIGH COURT OF MADHYA PRADESH 7 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
girl, trauma which she has to suffer and the agony she is going through at present and also keeping in view the report submitted by Medical Board, District Hospital, Guna, this Court is of the opinion that the prayer made by the petitioner deserves to be allowed and is accordingly allowed.
(11) The respondents/authorities are directed to carry out the termination of pregnancy immediately after taking all necessary medical precautions. As per the report submitted by the Medical Board, Guna, looking to the underdeveloped uterus of the petitioner, she is required to be referred to Medical College for skilled management. Accordingly, it is directed that in case if the petitioner appears before the Medical Board on or before 6th December, 2020 for termination of her pregnancy, then she will be admitted in District Hospital and in case if she is required to be referred to Medical College, Gwalior, then necessary steps be taken by the Chief Medical and Health Officer, Guna.
(12) It is needless to mention that the Head of the Department of Gynecologist, Head of the Department of Anesthesia and all other Specialists will remain present at the time when termination of pregnancy will be carried out, as the girl is of tender age and as there may be a threat to the life of the girl also. Not only this, after the THE HIGH COURT OF MADHYA PRADESH 8 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
termination of pregnancy is carried out, the State of Madhya Pradesh shall ensure postoperative care of the girl (prosecutrix). (13) The High Court of Bombay in the case of Shaikh Ayesha Khatoon Vs. Union of India and Others reported in 2018 SCC OnLine Bom 11 has held as under :-
''28. It is clarified at this stage that the petitioner has been sensitized by the Committee/Medical Board about the risk factors involved and it would be open for the petitioner to undergo the procedure of medical termination of pregnancy at her own risk and consequences. It is further made clear that the Doctors who have put their opinions on record shall have the immunity in the event of occurrence of any litigation arising out of the instant Petition." (14) In light of the aforesaid judgment, though this Court has already granted permission to carry out termination of pregnancy, but still it is directed that the Doctors who will be part of the process shall have immunity in the event of occurrence of any litigation arising out of the order passed by this Court. It is needless to mention that in case, the Head of the Gynecologist and Head of the Department of Anesthesia are not present, senior Doctors having experience in the field shall carry out the termination of pregnancy.
(15) It is also the case of the petitioner that the police is protecting the respondents No.5 and 6 and although she was subjected to rape but the police has deliberately not registered the offence under Section 376 of IPC. The petitioner has also prayed for protecting the THE HIGH COURT OF MADHYA PRADESH 9 WP 17987 of 2020 Victim ''X'' (minor) through her father Kallu Banjara vs. State of MP and Ors.
foetus so as to extract the DNA in order to establish the guilt of the respondents No.5 and 6 under Section 376 of IPC. (16) Accordingly, it is directed that after terminating the pregnancy of the petitioner, the foetus shall be preserved, so that the DNA can be extracted in order to establish the paternity of the child. (17) The petitioner has prayed for multiple reliefs in a single petition, which cannot be granted. Accordingly, the petitioner is granted liberty to file a fresh petition against the inaction of the police authorities in not registering the offence under Section 376 of IPC. (18) With aforesaid observations, this petition is finally disposed of.
(19) Let a copy of this order be sent to the Superintendent of Police, Guna for necessary information.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2020.12.03 VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00' 17:55:53 +05'30'