Madhya Pradesh High Court
Rameswar vs The State Of Madhya Pradesh on 22 March, 2018
HIGH COURT OF MADHYA PRADESH
W.P.No.5121/2018
(Rameshwar Vs. State of M.P. & Ors.)
1
Gwalior, Dated : 22.03.2018
Shri J.P.Kushwah, learned counsel for the petitioner.
Shri Praveen Newaskar and Shri Vivek Mishra, learned Govt.
Advocate for the State.
Shri N.K.Gupta, learned senior counsel, with Shri Himanshu
Sharma and Shri Sanjay Sharma, appears as amicus curiae.
This writ petition has been filed by the father of a minor girl
who is victim of most unfortunate circumstances. She is carrying
pregnancy, and therefore, the petition was filed seeking termination
of her pregnancy. On 5.3.2018 this Court requested Head of the
Department of Gynecology, GR Medical College, Gwalior, alongwith
another Professor of Gynecology to examine petitioner's daughter
and furnish report as to whether her pregnancy can be safely
terminated or not. On this request, she was examined by a team of
doctors and a report has been furnished pointing out that the girl is
only 17 years and 8 months old on the date of examination i.e.
7.3.18and fundal height is 28 weeks. In this backdrop, it is reported that as per the provisions contained in MTP Act, 1971 it is not feasible to terminate the pregnancy.
Petitioner on the next day expressed that psychological condition of the girl is such that if she is not permitted to terminate the pregnancy, she will be facing double jeopardy of being victim twice. On being faced with this precarious situation, this Court had requested the Department of Psychiatry, G.R. Medical College, to examine mental and psychological status of the girl and in this regard the learned Govt. Advocate Shri Praveen Newaskar had extended all possible help in communicating with the doctors inasmuch as this Court had not placed everything on record deliberately looking to the future of the girl.
In view of such communication, she has been examined by a team of doctors under the leadership of Dr. Atul Agrawal, Associate Professor and Head of the Department of Psychiatry. These doctors have taken pains to spare their valuable time and have HIGH COURT OF MADHYA PRADESH W.P.No.5121/2018 (Rameshwar Vs. State of M.P. & Ors.) 2 presented themselves before the Court in terms of the orders passed by this Court. As per Shri Atul Agrawal a Medical Board was formed and that Medical Board found that petitioner's daughter is under severe depression and that may be detrimental to her life. When such situation is confronted, this Court requested Dr. Gour, In-charge Professor to meet the girl in question again and ascertain her desire so also her mental and physical status. Dr. Gour on our request spared her valuable time and had met with the girl and expressed that she is anaemic and may require blood transfusion. She further submits that it is a case of high risk termination and either case, termination or continuation, may pose high risk as per the text books of Obstetrics so also her long experience of over 25 years. She also expressed that three problems will be confronted if her pregnancy is to be terminated; the legal impediment, (ii) risk to the victim herself and (iii) future of foetus if it is delivered live.
Petitioner and his wife have been consulted by the amicus curiae Shri N.K.Gupta and both of them alongwilth the girl in question have communicated their desire to undergo termination of the pregnancy under the Court order and they are ready to face the consequences at their own risk. It is their contention that since they come from very humble background cost may be borne by the State. As far as the issue of probability of birth of a live foetus is concerned, it is submitted that if a live foetus is born, then that may be given in adoption as per the rules of adoption. On such request, Dr. Gour informs that this procedure will require multi-facet effort from various departments of Medical College namely Department of Obstetrics and Gynecology, Department of Medicine, Department of Pediatrics including Pediatrics Surgery, Department of Psychiatry, Department of Pathology and also Department of Anesthesia and any other departments as per the emergency if it is posed in the procedure.
In view of such facts, Shri Gupta has produced two orders; one of Hon'ble Supreme Court in Writ Petition (s) (Civil) No.(s) HIGH COURT OF MADHYA PRADESH W.P.No.5121/2018 (Rameshwar Vs. State of M.P. & Ors.) 3 871/17 where the Court was facing the problem of termination of 24 weeks of pregnancy and had permitted such pregnancy at AIIMS on Friday, 22nd September, 2017. In another case which was dealt with by the Coordinate Bench of this Court at Principal Seat Jabalpur in W.P.No.20961/2017 the law laid down was that 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 fact of the matter is that in the present case victim being a minor is legally not in a position to decide anything for herself. Shri Gupta has drawn attention of this Court to Section 3(1), 3(2)(b)
(i) and Section 5(1) of the Medical Termination of Pregnancy Act, 1971 which 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)...
(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.
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 HIGH COURT OF MADHYA PRADESH W.P.No.5121/2018 (Rameshwar Vs. State of M.P. & Ors.) 4 good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman."
Since there is risk to the life of the pregnant woman and of grave injury to her physical and mental health, this Court is of the opinion that it cannot remain a silent spectator to the agony of minor undergoing torture and has to act and take a decision. This Court is emboldened by the support of team of the doctors and their skill and the assistance rendered by the learned counsel for the parties, especially amicus curiae Shri N.K.Gupta. In view of such facts, this Court directs that let a inter-disciplinary team of doctors be constituted by the Dean of G.R.Medical College today itself and they shall carry out the necessary procedure of termination of pregnancy tomorrow i.e. on 23rd March, 2018 at 8.45 am when the girl and her parents shall appear before the team of the doctors and fill necessary consent forms. It is requested that Dean shall constitute team of senior and experienced doctors for the sake of humanity. It is further directed that in terms of the law laid down by Division Bench of Bombay High Court in the case of Shaikh Ayesha Khatoon Vs. Union of India in W.P.(ST) No.36727 of 2017, it is clarified at this stage that the petitioner and his daughter have been sensitized by the Committee/Medical Board about the risk factors involved and it would be open for the petitioner's daughter 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 procedure.
Learned Govt. Advocate Shri Vivek Mishra has also pointed out that Hon'ble Supreme Court in the case of X Vs. Union of India and others as reported in (2016) 14 SCC 382 has dealt with the aspect of termination of pregnancy after 20 weeks and has held HIGH COURT OF MADHYA PRADESH W.P.No.5121/2018 (Rameshwar Vs. State of M.P. & Ors.) 5 that Section 5 creates exception to section 3 and it permits termination of pregnancy after 20 weeks if it is necessary to save life of pregnant woman. Dr. Atul Agrawal and his team have categorically opined that condition of pregnancy can have grave endanger to the mental health of the petitioner's daughter. Under such facts and circumstances, liberty is granted to the daughter of the petitioner to terminate her pregnancy.
It is further clarified that identity of the girl and if she gives birth to a live child, then parentage of the child, shall be kept a secret and shall not be revealed to anybody. This is being done looking to the future of the girl. It is also directed that no legal claim can be put forth on the team of the doctors by the girl or her parents as they have understood the possible complications and the team of doctors will not be liable to any legal complications arising out of such procedure. It is further directed that relevant department in the G.R. Medical College or its associates may carry out DNA sampling of the baby and preserve report of such DNA sampling to be produced before the competent Court where criminal case in relation to the mother's agony is pending.
Accordingly, this petition is disposed of.
Certified copy today.
Let a copy of the order be provided to learned Govt. Advocate free of cost in a sealed cover for immediate transmission to the Dean, G.R. Medical College, Gwalior.
(Vivek Agarwal) Judge ms/-
Digitally signed by MADHU SOODAN PRASADDate: 2018.03.22 16:00:29 +05'30'