Madhya Pradesh High Court
Shamu Bai @ Meera Bai vs The State Of Madhya Pradesh Public ... on 19 April, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 19 th OF APRIL, 2023
WRIT PETITION No. 8750 of 2023
BETWEEN:-
SHAMU BAI @ MEERA BAI W/O PEMA DABI, AGED
ABOUT 44 YEARS, OCCUPATION: LABOUR RUNDA POST
LILAKHEDI TEHSIL BADNAWAR DISTRICT DHAR.
(MADHYA PRADESH)
.....PETITIONER
(BY MS. SHANNO SHAGUFTA KHAN, ADVOCATE FOR THE PETITIONER)
AND
1. THE STATE OF MADHYA PRADESH PUBLIC
HEALTH AND FAMILY WELFARE THROUGH THE
PRINCIPAL SECRETARY 6TH FLOOR, SATPUDA
BHAWAN, DISTRICT BHOPAL. (MADHYA
PRADESH)
2. CHIEF MEDICAL HEALTH OFFICER DHAR
(MADHYA PRADESH)
3. HEAD OF DEPARTMENT GYNECOLOGY
D EPARTM EN T MAHARAJA YAHWANT RAO
HOSPITAL MY HOSPITAL RD, CRP LINE, INDORE
(MADHYA PRADESH)
4. THANA INCHARGE BADNAWAR, DIST. DHAR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH, GOVT. ADVOCATE FOR THE STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition has been filed by the mother of the rape victim seeking Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 6:58:30 PM 2 permission/direction for termination of pregnancy. According to her mother she is a rape victim minor girl aged about 12 years. The FIR was registered 27.02.2023 at Crime No.158/2023, Police Station-Badnawar District Dhar alleging for committing rape with her. Because of the said unfortunate incident, she has become pregnant and at present, she is carrying pregnancy of 28 weeks. Since, she is victim of rape, therefore, she is not willing to continue the pregnancy and hence, petitioner is before this court seeking direction to the respondents to terminate her pregnancy.
Vide order dated 13.04.2023 this Court directed the learned Govt. Advocate to arrange a Medical Board comprising of experts from the Gynecological Department to examine the condition of the victim as to whether the termination is advisable and it would not effect the health of the victim.
The Professor & Head of Department of Obstetrics & Gynaecology, M.Y. Hospital, Indore through the opinion given by the Medical Board has sent the report dated 19.04.2023. As per opinion given by the Medical Board, the petitioner can be allowed for termination of pregnancy and she is physically fit for the same.
Learned counsel for the petitioner submits that in view of the explanation of sub-section (2) of Section 3 the termination of pregnancy is permissible.
The Apex Court in case of Ms. X Vs. Union of India & Others, reported in AIR 2016 SCC 3525 has held that Section 5 of the Act lay down the exception to Section 3 if as per opinion of less than 2 registered Medical Practitioner gives the opinion of in good faith in respect of termination of pregnancy to save the life of pregnant women. By placing reliance over the aforesaid section the Apex Court has granted liberty to the petitioner to terminate her pregnancy. Relevant portion of the aforesaid judgement is Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 6:58:30 PM 3 reproduced below:
"5. The question that arises for our consideration is, whether it would be justified and legal, to terminate the pregnancy of the Petitioner, which the Medical Report itself shows, as of 24 weeks duration? Learned Attorney General representing the Union of India has invited our attention to Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act') which is extracted below:
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 Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 6:58:30 PM 4 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 Subsection (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.
A perusal of the above provision reveals, that the provision deals with termination of pregnancies of different durations, and the procedure contemplated therefor. Section 3 leaves no room for doubt, that it is not permissible to terminate a pregnancy, after 20 weeks. However, Section 5 of the Act lays down exceptions to Section 3. Section 5 of the Act is also reproduced hereunder:
5. Sections 3 and 4 when not to apply.-
( 1 ) The provisions of Section 4, and so much of the provisions of Sub-section (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a 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. (2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that mentioned in Section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 6:58:30 PM 5 years but which may extend to seven years.
( 4 ) Any person being owner of a place which is not approved under Clause (b) of Section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years. Explanation 1.-For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.-For the purposes of this section, so much of the provisions of Clause (d) of Section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.
A perusal of Section 5 of the Act reveals, that the termination o f pregnancy, which is necessary to save the life of the pregnant woman, is permissible."
In light of the aforesaid verdict, considering the age of the petitioner, and the agony which she is going through at present and also keeping in view the report of Medical Board constituted by this Court, deserves to be allowed and is accordingly allowed. The case of the petitioner is covered under explanation of sub-section (2) of Section 3 of the Act of 1971.
The victim is already admitted in the hospital and all the formalities are completed then the pregnancy be terminated.
The respondents are directed to carry out termination of pregnancy immediately if health condition of the girl permits to do so. The Doctors specialized in the field are the best experts to take decision about health condition of girl before and after termination of pregnancy. This Court is only giving permission of termination of pregnancy in view of judgement passed by the Apex Court in aforementioned cases but subject to the health condition and Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 6:58:30 PM 6 consent under the Act. The Dean, MGM Medical College and M.Y. Hospital, Indore is directed to admit the petitioner and examine her health condition before termination of pregnancy within 3 days positively as per the consent given by her as required under sub Section (4) of Section 3 of the Medical Termination of Pregnancy Act, 1971 & health condition.
I t is needless to mention that the Head of the Department of Gynaecologist, Head of the Department of Anaesthesia and all other specialist shall remain present at the time termination of pregnancy looking to the tender age threat of life of the petitioner. The victim be given post operative care properly in the hospital. It is also directed that the fetus of the child be preserved for the purpose of DNA test.
With the aforesaid, present writ petition stands allowed. C.C. as per rules.
(VIVEK RUSIA) JUDGE VS Signature Not Verified Signed by: VARSHA SINGH Signing time: 4/19/2023 6:58:30 PM