Madhya Pradesh High Court
X Victim vs The State Of Madhya Pradesh on 15 October, 2018
1
W.P. No.24967/2018
THE HIGH COURT OF MADHYA PRADESH
W.P. No.24967/2018
(X-victim & Anr. Vs. State of M.P. & ors.)
Gwalior Dated 15/10/18
Shri N.K. Gupta, Senior Advocate with Shri S.K.
Sharma, Advocate for the petitioners.
Shri Vishal Mishra, Additional Advocate General with
Srhi Prakhar Dhengula, Govt. Advocate for the
respondents/State.
content & context Writ jurisdiction of this court under Article 226 of the Constitution of India is invoked by the prosecutrix aged about 15 years alongwith her mother petitioner No.2 seeking termination of pregnancy of petitioner No.1 caused due to the incident which took place on or around 26/3/18 when the petitioner No.1/prosecutrix was subjected to rape by accused Bannu @ Vinay Singh Banjara in regard to which FIR was lodged on 26/5/18 bearing crime No. 165/18 at Police Station Shamshabad District Vidisha alleging offences punishable u/S. 376, 506 of IPC r/w section 3/4 of POCSO Act r/w section 3(i) (w) (ii) and 3 (2)
(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
It is undisputed that victim/petitioner of the said crime is minor aged about 15 years and is alleged to be dumb (speech impaired) since birth. It is further not disputed that petitioner No.2 mother of victim has given her consent to the termination of pregnancy.
Learned Additional Advocate General Shri Vishal 2 W.P. No.24967/2018 Mishra has brought on record by way of document No. 8781/18 medical record dated 15/10/18 prepared by a team of three doctors Dr. Nitu Mishra Assistant Professor, Dept. Obstetrics & Gynecology, Gandhi Medical College & SZH Bhopal (M.P.), Dr. Piyamvada Kurveti Verna, Associate Professor, Dept. Forensic Med. Gandhi Medical College & SZH Bhopal (M.P.) and Dr.Shubha Srivastava Associate Professor, Dept. Obstetrics & Gynecology, Gandhi Medical College & SZH Bhopal (M.P.) after subjecting the petitioner No.1 to medical examination which reveals thus:-
(i) live fetus of 27 weeks and 6 days (+/-02 weeks)
(ii) Opinion-Pregnancy cannot be terminated under MTP Act 1971.
Learned counsel for the petitioner has relied upon decisions rendered by different courts in X-victim Vs. Union of India & ors. and X-victim Vs. Union of India and ors. 2016 (14) SCC 382, Order dated 16/12/17 passed in W.P. No. 20961/17 (Sundarlal Vs. State of M.P. & ors.) and Order dated 29/6/18 passed in W.P. No. 13583/18 (Sarita Singh Vs. State of M.P. & ors.) by Co-ordinate Benches of this court at Principal Seat Jablapur, order dated 9/1/18 passed in W.P. (ST) No. 36727/17 by the Division Bench of Bombay High Court and order dated 21/9/17 of the Apex Court passed in W.P. (Civil) No. 871/2017 (Ms. Chanchala Kumari Vs. UOI & anr.) Learned counsel for the respondent on the other hand has relied upon the order dated 10/9/18 passed 3 W.P. No.24967/2018 in W.P. No. 9862/18 (XYZ Vs. Union of India & ors.) by the Division Bench of Bombay High Court. CONSIDERATION This case reeks of abject callousness and apathy on the part of the Investigating Officer, The Child Welfare Committee Vidisha and all the concerned stakeholders under the Juvenile Justice (Care and Protection of Children) Act 2015. The said functionaries of the State who are conferred with powers under the relevant statute seem to have failed in their duties to extend timely care and protection to a child (the victim herein) in need of care and protection. It is a clear case of abdication of their statutory duties which shall be dealt with separately in the latter part of this order as the immediate and emergent situation regarding the question of termination of pregnancy needs to be answered first.
The Medical Termination of Pregnancy Act, 1971 (for brevity 1971 Act) provides for termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. The relevant sections 3, 4 and 5 of the said 1971 Act are reproduced below for ready reference and convenience:-
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,-
4 W.P. No.24967/2018(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 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.
4. Place where pregnancy may be terminated.-No termination of pregnancy shall be made in accordance with this Act at any place other than,- (a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government.
Provided that the District Level Committee shall consist of 5 W.P. No.24967/2018 not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.]
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. 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practioner, 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.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable 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 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.] In case of a minor pregnant woman whose pregnancy is an outcome of offence of rape, termination of pregnancy is permissible where pregnancy does not exceed twenty weeks, if such termination is recommended by at least two registered medical practitioners who are of the opinion formed in good faith that continuance of pregnancy would 6 W.P. No.24967/2018 involve risk to the pregnant woman or grave injury to her (physical/mental health), or there is involvement of substantial risk that if the child is allowed to be born, it would suffer from such physical or mental abnormalities which may lead to serious handicap.
Explanation 1 to section 3 (2) enlarges the definition of grave injury to mental health contemplated by section 3 (2) (b)(i) of 1971 Act, to include anguish suffered by a rape victim.
Thus the right interpretation of Explanation 1 to section 3 (2) is that even if a rape victim carrying pregnancy not exceeding twenty weeks is recommended by at least two registered medical practitioners to be not facing risk of life or grave injury solely due to pregnancy, even then the anguish which the rape victim suffers per se is sufficient to constitute grave injury to the mental health of the pregnant woman (victim of crime of rape).
However Section 3 does not deal with contingency where pregnancy exceeds twenty weeks and therefore resort to the provision of section 5 of 1971 Act is called for in the present case where pregnancy as on the date of examination ie. 15/10/18 was about 27 weeks.
Section 5 (i) is essentially an exception to the rigors laid down in section 3. Section 5 relaxes the rigors of section 3 (2) by providing that if at least two registered medical practitioners may opine that if pregnancy is not terminated immediately, it could endanger the life of the pregnant woman.
7 W.P. No.24967/2018Testing the factual matrix attending the instant case on the anvil of the legal provisions and discussion as aforesaid, it is evident that a team of three registered medical practitioners on examining the petitioner No.1/ victim on 15/10/18 opined that no ground exists to terminate the pregnancy under the 1971 Act meaning thereby that pregnancy does not pose any risk either to life of petitioner No.1 or of grave injury to her physical or mental health or substantial risk if the pregnancy is allowed to continue and the child takes birth and also that there is no opinion about the fetus to suffer such physical and mental abnormalities which can cause serious handicap after birth.
On account of the apathy, callousness and indolence on the part of the functionaries of the State and all the concerned stakeholders under the Juvenile Justice Act, 2015, the pregnancy of the petitioner No.1 which could have been terminated as early as in May-2018, when it was brought to light to the concerned police authorities, was allowed to develop for a further period of nearly five more months to reach considerably advanced stage today when the fetus is nearly twenty seven weeks old.
In view of above, the right available to the petitioner No. 1 in May 2018 to seek termination of pregnancy was not attended to by any of the concerned functionaries of the State for a period as long as nearly 4-5 months.
As such the cause raised in this petition needs to be adjudicated upon by this court on the fact situation 8 W.P. No.24967/2018 prevailing when the FIR was lodged on 26/5/18. In May- June, 2018 the pregnancy was only about 8-9 weeks old and therefore, could have well been terminated u/S, 3 (2) of 1971 Act by registered medical practitioners, thereby avoiding the extreme trauma and anguish faced by petitioner No.1 in these last 4-5 months.
In view of above, where petitioner cannot be held responsible for the delayed approach to this court, it would be appropriate to allow the prayer made by the petitioner No.1 to terminate the pregnancy of petitioner No. 1 after ensuring compliance of all the rigors of 1971 Act.
This court accordingly directs the respondent No.2 to ensure termination of pregnancy of petitioner No.1 at the earliest after obtaining fresh consent from the petitioner No.1 and as well as her mother petitioner No.2.
This court for the purpose of ensuring adequate care, protection and compensation to the victim/petitioner No.1 adopts the directions passed in order dated 6/12/17 passed by Coordinate Bench of this court at Jabalpur in W.P. No. 20961/17 (involving similar facts as attended herein) which is reproduced below for compliance:-
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;9 W.P. No.24967/2018
(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 suchCommittee/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 the 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 Vishal 10 W.P. No.24967/2018 Mishra learned Additonal Advocate General forthwith for official use. Shri Mishra is requested to communicate this order to all concerned immediately.
Looking to the abject, apathy, callousness and insensitivity shown by the concerned police authorities and the relevant stakeholders under the Juvenile Justice Act which has caused delay of nearly five months, this court deems it appropriate that adequate compensation to the victim deserves to be extended and appropriate penal action in accordance with law be taken against the defaulting police personnel and the stakeholders under the Juvenile Justice Act, 2015 for which this court may not be competent as no such prayer has been made in the present case and therefore deems it appropriate that matter be placed before Hon'ble The Chief Justice for registering the present case as PIL, if thought fit.
Registry is directed to ensure compliance of this order by directly communicating a copy of this order (telephonically and E-mail) to the petitioners, respondents No. 1, 2 and 3 and to the Additional Advocate General and CM & HO Gwalior.
Additional Advocate General Shri Vishal Mishra is directed to file compliance report of the aforesaid directions concerning petitioner No. 1 before the Registry of this Court within a period of one week from today.
(Sheel Nagu) Judge ojha NEETU SHASHAN K 2018.10.1 6 19:21:36
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