IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 956 OF 2018
“ABC” .. Petitioner
Through her Guardian
Versus
1. The State of Maharashtra .. Respondents
Through its Secretary,Mantralaya, Mumbai32.
2. Chief Medical Officer,
Government Hospital, Latur.
Mr.Sujit A. Patil h/f. Mr. V.D.Salunke, Advocate for the petitioner.
Mr.A.B.Girase, Government Pleader for respondent/State.
CORAM : S.S.SHINDE
S.M.GAVHANE,JJ.
RESERVED ON : 01.02.2018
PRONOUNCED ON : 02.02.2018
J U D G M E N T [PER : S.M.GAVHANE,J.] :
1. Rule. Rule made returnable forthwith and heard finally with a agree of schooled Counsels appearing for the respective parties.
2. The minor victim girl who is physically abused and mentally tortured has approached this Court through her father – the guardian for seeking directions in the inlet of command of mandamus, thereby directing to cancel her pregnancy by following a procession as described under the Medical Termination of Pregnancy Act, 1971 [hereinafter referred as to “the MTP Act”] and further directions to conduct DNA test of unborn foetus, so as to determine natural parents of it.
3. The guardian father of the victim contends that he has four daughters and one son. The victim is minor daughter aged about 16 years. She is studying in 10th standard. As per her bona fide certificate issued by the school, her date of birth is 05.01.2001. It is further contended that his elder daughter has married on 06.01.2013 with one Vikas Rathod and he is not maintaining his wife. Vikas drove his wife out of his house. Therefore, she is residing with the petitioner. Some complaints were filed against the matrimonial family members of elder daughter of the petitioner and therefore there was grudge in the mind of that family.
4. According to the petitioner on 27.11.2017 when victim went in the morning to answer the nature’s call outside the house, she did not return. The petitioner tried to search her. However, he could not find her. The postulant suspected that his soninlaw Vikas and his family, who had hate in a mind, contingency have kidnapped the victim to pressurize the petitioner for not filing any complaint. When the petitioner could not find a victim, he lodged a First Information Report in Kingaon Police Station temperament No.144 of 2017 on 30.11.2017 under section 363 read with section 34 of the Indian Penal Code. After the said crime was registered, the soninlaw of the petitioner brought the victim in a military hire on 04.12.2017. At that time, statement of the victim was recorded wherein she did not allege any overtact on the part of Vikas and she refused for any medical examination. On this count, she was remanded in Child Rehabilitation Home at Latur. In the said Home, statement of the victim under section 164 of Code of Criminal Procedure came to be available on 11.12.2017 by the PSI attached to Gandhi Chowk Police Station, Latur, in which she narrated the entire incident and done indictment opposite Vikas Rathod of committing rape by threatening her to her life, and against him and his father of inserting some substance in her mouth and of putting a handkerchief in her mouth. Thereafter, offence punishable under section 376 of the IPC was added in the above said crime.
5. The postulant contends that after recording matter as above of a victim, she was referred on 20.12.2017 to the Government Hospital, Latur for medical examination. Upon medical examination, it was found that she is carrying two months’ pregnancy. Thereafter, the accused and his relatives threatened the complainant for apocalyptic consequences, if he does not take box back. Therefore, applications were submitted in a military station.
6. According to a petitioner, teenager plant who was under constant mental and physical pressure of the accused, initially did not attribute any overtact against the accused. Only when she was in Child Rehabilitation Home, she has collected bravery and she narrated a incident. As such, firstly a plant was intimately assaulted and then she was pressurized for not giving any statement against the accused. Thus, the victim became profound due to iniquitous act committed by a indicted person. Therefore, deliberation her age, her marital status, physical and mental condition and her education, it is desirable to terminate unwanted pregnancy in the light of provisions under subsection 2(b)(i) of section 3 of the MTP Act. It is contended that after getting knowledge of pregnancy of the victim, the petitioner and his whole family was uneasy and was in startle and therefore some time was consumed.
7. Considering aforesaid contentions in a petition and prayer of the petitioner to send the victim for medical examination and opinion of two experts, by order dated 23.01.2018, we had directed to produce the plant before a Medical Board constituted for a purpose under the MTP Act, with directions to the Medical Board to forthwith examine the victim and tender report to this Court. The petitioner was medically examined at Government Medical College and Hospital, Aurangabad, by consultant cabinet consisting of a following 5 members:
i) Dr. Shrinivas Gadappa (Chairman) Prof. HOD, OBGY
ii) Dr.Prashant Titare (Member) Asso. Prof. Radiology
iii)Dr.P.S. Patil (Member) Prof. HOD Paediatrics
iv) Dr. Ghuge (Member) Prof HOD, Psychiatry
v) Dr.Rashmi Bengali (Member) Asso. Prof. Anaesthesia
8. Said Committee tendered to this Court a report antiquated 25.01.2018. Said news is taken on record and remarkable “X” for a purpose of identification. In a said report, the following findings are recorded :
1) From ubiquitous medical hearing she has no active medical complaints.
2) Obstetric examination her vital parameters are within normal limits with 16.2 weeks of pregnancy.
3) Ultrasonographic hearing revealing of singular live intrauterine foetus of approximately 16 weeks 2 days. No gross lethal foetal anomaly (Report attached)
4) On Psychiatric examination, clinically she is of average intelligence. No active current psychopathology. Her concept and judgment are intact. She is aware about the incident and the consequences about the continuation of pregnancy.
9. The conclusions of a pronounced Committee are as follows :
1) Current pregnancy, on clinical and ultrasonographical hearing is around 16.2 weeks of gestation. No gross lethal congenital anomalies in the foetus.
2) Her earthy and mental health is within normal limits.
3) Under a Medical Termination of Pregnancy Act, 1971 (34 of 1971) under clause 3 of 2 on humanitarian grounds such as when pregnancy arises from a sex crime like rape or retort with a “mentally ill person” etc.; when a length of pregnancy is reduction than 20 weeks.
4) Risk of termination of pregnancy is within normal acceptable limits.
10. The provisions of sections 3,4 and 5 of the MTP Act, which provide for termination of certain pregnancy by a purebred medical practitioner and that are relevant are as under :
3. When pregnancies might be consummated by registered medical practitioners
(1) Notwithstanding anything contained in a Indian Penal Code (45 of 1860), a purebred medical practitioner shall not be guilty of any corruption underneath that Code or underneath any other law for the time being in force, if any pregnancy is consummated by him in suitability with a provisions of this Act.
(2) Subject to a supplies of subsection (4), a pregnancy might be consummated 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 a length of a pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not reduction than dual purebred medical practitioners are, of opinion, shaped in good faith, that
(i) a delay of a pregnancy would involve a risk to the life of the pregnant woman or of grave damage to her earthy or mental health; or
(ii) there is a estimable risk that if a child were born, it would humour from such earthy 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, a agonise caused by such pregnancy shall be reputed to consecrate a grave damage to a 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 tying a series of children, a agonise caused by such unwanted pregnancy may be presumed to consecrate a grave damage to a mental health of the pregnancy woman.
(3) in determining whether the continuance of a pregnancy would engage such risk of damage to a health as is mentioned in subsection (2), comment might be taken of a profound woman’s actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not achieved a 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 consummated solely with a consent of the pregnant woman.
4. Place where pregnancy might be consummated No stop of pregnancy shall be done in accordance with this Act at any place other than
(a) a sanatorium determined or confirmed by Government , or
(b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as a Chairperson of the said Committee. Provided that a District Level Committee shall consist of not less than three and not more than 5 members including a Chairperson, as the Government may specify from time to time.
5. Sections 3 and 4 when not to apply
(1) The provisions of section 4, and so much of of the provisions of subsection (2) of section 3 as relate to the length of the pregnancy and the opinion of not reduction than dual purebred medical practitioners, shall not apply to the termination of a pregnancy by a purebred medical practitioner in a box where he is of opinion, shaped in good faith, that a stop of such pregnancy is immediately compulsory to save the life of the pregnant woman.
(2) Notwithstanding anything contained in a Indian Penal Code (45 of 1860), a stop of pregnancy by person who is not a registered medical practitioner shall be an corruption 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, 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.
Explanation 1 For the purposes of this section, a countenance “owner” in propinquity to a place means any chairman who is a executive conduct or differently obliged for a operative or upkeep of a sanatorium or place, by whatever name called, where a pregnancy might be terminated under this Act.
Explanation 2 For a functions of this section,so most of a supplies of proviso (d) of territory 2 describe to a possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.
11. Referring a above provisions, this Court in Writ Petition No.14173 of 2017 “X (since minor through her mother) Vs. The Union of India Ors., (Coram : R.M.Borde Smt.Vibha Kankanwadi,JJ) in para 10 of the judgment dated 12.12.2017 observed as under : “10. Although section 3 of the Act provides the limit of
12 weeks for medically terminating pregnancy by a medical practitioner and, where the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks and if, not less than two medical practitioners are of opinion, formed in good faith, the continuance of pregnancy would engage a risk to a life of a profound lady or grave injury to her earthy or mental health or that there is a substantial risk that if the child were born, it would humour from such earthy or mental abnormalities as to be seriously handicapped, it would be permissible to terminate the pregnancy. It must be noted that section 5 of the Act is not controlled by the limitation in respect of duration of pregnancy contained in sections 3 and 4 of the Act. If in the opinion of medical experts, arrived during in good faith, a stop of pregnancy is immediately compulsory to save a life of a profound woman, such a pregnancy can be terminated. It also contingency be remarkable that Explanation 1 to territory 3 annals that where a pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy can be presumed to constitute a grave injury to the mental health of the pregnant woman. Subsection (1)(b)(i) of territory 3 refers to a risk endangered to a profound lady that includes even damage in honour of mental health. There shall not be reason to doubt that since pregnancy in a benefaction matter is as a outcome of offence of rape, it causes a huge mental trauma and such inference is in consonance with explanation 1 to section 3(1) of the Act of 1971.“
12. Moreover, in the above decision, the decision of a Hon’ble Supreme Court in a box of Suchita Srivastava Vs. Chandigarh Administration, 2009(9) SCC 1, was referred wherein it has been observed that there is no doubt 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. It is important to recognize that productive choice can be exercised to multiply as good as to refrain from procreating. Moreover, in para 19 of a aforesaid judgment, the Apex Court has observed as under : “19. As evident from its literal description, the “Best interests” exam requires a Court to discern a course of action which would serve the best interests of a chairman in question. In a benefaction sourroundings this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as good as amicable resources forced by a victim. It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that can't be a belligerent for denying the exercise of reproductive rights.”
13. This Court in the case of “X” Vs. Union of India Ors. in W.P.9915 of 2017 (Coram : R.M.Borde S.M. Gavhane, JJ) motionless on 10.08.2017 celebrated that Explanation 1 to section 3 records that where the pregnancy is alleged by the pregnant woman to have been caused by rape, a agonise caused by such pregnancy can be reputed to consecrate a grave damage to a mental health of a pregnant woman. Subsection (1)(b)(i) of section 3 refers to the risk involved to the pregnant woman which includes even damage in honour of mental health. There shall not be reason to doubt that since pregnancy in the instant matter is as a outcome of corruption of rape, it causes a outrageous mental mishap and such deduction is in accord with explanation 1 to section 3(1) of the MTP Act. It was further observed that it must be noted that the pregnancy carried by petitioner is as a result of physical abuse thrust against her and that she has a choice whether to continue with such pregnancy which is result of offence against her person. The freedom of making choice by a woman which is integral part of personal liberty cannot be taken away. It shall also be taken into consideration that besides physical injury, the legislature has widened the scope of term injury by including injury to mental health of a pregnant woman. If continuation of pregnancy is harmful to mental health of a pregnant woman, then it shall be construed as a good legal ground for permitting her to cancel pregnancy and, given in a benefaction matter, pregnancy is purported to be as a outcome of physical abuse, in view of section 5 of the MTP Act, the choice of a plant of rape of terminating neglected pregnancy needs to be respected. Observations made by Division Bench of this Court in Suo Motu Public Interest Litigation no. 1/2016 in the matter of High Court on its possess suit Vs. The State of Maharashtra reported in LEX(BOM) 2016 9 page 114, in divide no. 13 of a judgment are relevant for consideration which read thus :
13. A woman irrespective of her marital status can be pregnant either by choice or it can be an neglected pregnancy. To be profound is a natural phenomenon for which woman and man both are responsible. Wanted pregnancy is common equally, however, when it is an collision or unwanted, afterwards a male might not be there to share the burden but it may only be the woman on whom a weight falls. Under such circumstances, a doubt arises since usually a lady should suffer. There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, it can have critical repercussions. it positively affects her mental health. The law makers have taken care of helpless plight of a woman and have enacted Section 3(2)(b)(i) by incorporating a difference “grave damage to her mental health”. It is imperative on a purebred medical practitioner while forming opinion of necessity of stop of pregnancy to take into account whether it is injurious to her physical or mental health. While doing so, the woman’s tangible or reasonable foreseeable sourroundings may be taken into account.
14. In the case of “X” Vs. Union of India (Supra), this Court has also observed that apart from danger to the life of the petitioner, this Court has to take note of the psychological trauma the petitioner is undergoing as a result of carrying unwanted pregnancy. As has been stated above, the freedom of petitioner to make choice to terminate unwanted pregnancy which is result of physical abuse needs to be respected and such freedom of choice shall have to be construed as constituent partial of her personal liberty.
15. In the present case, the date of birth of the postulant is 05.01.2001. On a date of filing of petition on 15.01.2018, she finished 17 years of her age. Thus, there is no dispute that she is a minor being next 18 years of age and therefore she filed this petition through her father – the guardian. On complaint of her father, crime was purebred in Kingaon Police Station, Dist. Latur, primarily for a corruption punishable under section 363 read with section 34 of the IPC against Vikas and his father and then after recording statement of the victim, offence under sections 376 of a IPC was added. Thus, it is transparent that a teenager victim who claims termination of pregnancy by filing this petition through her father is a victim of rape. The report of the expert committee under the MTP Act, 1971 shows that current pregnancy of the victim is of around 16.2 weeks. Thus, it is transparent that length of a pregnancy of a plant exceeds 12 weeks though does not surpass 20 weeks and hence pronounced pregnancy can be consummated by purebred medical practitioners, if not reduction than dual purebred medical practitioners are of opinion shaped in good faith that delay of pregnancy would engage a risk to a life of a profound lady or of grave damage to her earthy or mental health; or 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, in the light of provisions under section 3 (2)(b) (i) and (ii) of the MTP Act.
16. In a benefaction case, from a conclusions recorded by the expert committee under the MTP Act, in a news (Exh.”X”), it is not settled that there is substantial risk if the child is born, in the light of subclause (ii) of proviso (b) of subsection(2) of territory 3 of a MTP Act. However, deliberation a contentions in the petition that the pregnancy is caused by rape, a box of a postulant falls underneath subclause (i) of clause (b) of subsection(2) of section 3 of the MTP Act.
17. Keeping this in view, now it is to be seen whether the victim in the present case can be allowed to terminate the pregnancy in the light of aforesaid said provision. The expert committee in its report gave four conclusions referred in fact in para No. 9 (supra). Amongst said conclusions, conclusion No.3 is that under a Medical Termination of Pregnancy Act, 1971 (34 of 1971) under clause 3 of 2 on humanitarian grounds such as when pregnancy arises from a sex crime like rape or intercourse with a “mentally ill person” etc.; when the length of pregnancy is less than 20 weeks.
18. It appears from a above end that in box pregnancy arises from sex crime like rape or intercourse with mentally ill person and when the length of a pregnancy is reduction than 20 weeks, there can be termination under the MTP Act. This conclusion does not state that in box pregnancy of a benefaction plant is allowed to continue, the same would involve risk to the life of the victim or grave injury to her physical or mental health. However, from the above referred admitted contribution that a plant is profound since of rape and crime is registered against the accused for the offence punishable under section 376 of the IPC, it can be said that said pregnancy has been foist on the victim against her wish and pronounced pregnancy is neglected pregnancy. Therefore, agonise caused by such pregnancy shall be reputed to consecrate a grave damage to a mental health of the pregnant woman, as per Explanation 1 under section 3 referred to above. Another reason to hold so is that admittedly the victim is taking education in 10th standard and she is residing in the village. Therefore, she will have to face to the blame of the society, if she continues with a pregnancy and even it would be formidable for her to continue with her education. Naturally, therefore pronounced pregnancy would means outrageous trauma to victim. As the petitioner victim is minor, the petition is filed by her father – guardian. As she is minor, as per subsection (4) of section 3 of the MTP Act , agree in essay of her defender is compulsory to terminate pregnancy. However, considering her age i.e. 17 years, on her request through her Counsel, in order to know her wish when listened in a Chamber, she also disclosed that it is difficult for her to show her face to a people in a encampment and propagandize due to a pregnancy with that does not wish to continue. The consultant cabinet end also shows that risk of stop of pregnancy is within normal excusable limits. In these circumstances, for the reasons discussed above, we hold that there is no impediment in allowing the petitioner – victim to terminate her pregnancy.
19. Learned warn for petitioner, states on instructions, that the petitioner would like to complete the procedure of termination of pregnancy at Government Medical College, Latur, which is approved as per section 4 of the MTP Act as informed by the Government Pleader. The Dean of Government Medical College, Latur is so destined to forthwith finish a procession of stop of pregnancy of teenager postulant underneath organisation of a group of medical experts after obtaining consent in writing of guardian as per law. Two members of the team shall be experts in Obstetrics and Gynecology.
20. Since according to petitioner, a pregnancy carried by her is as a outcome of corruption of rape, complaint has already been lodged and the matter is under investigation, a Dean, Government Medical College, Latur is destined to safety hankie representation and blood sample of the foetus for carrying out necessary medical tests including DNA, finger printing/mapping. The Investigating Officer conducting review in a matter shall ensure that the samples of tissues and blood etc. shall be forwarded to a Regional Forensic Laboratory, Aurangabad, for DNA, Finger printing/mapping and for carrying compulsory tests and a samples and report shall be preserved for the purpose of trial of the offence.
21. It is made clear that the Doctor 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.
22. Rule is accordingly made absolute. There shall be no order as to costs.
23. Parties and all endangered to act on authenticated copy of this judgment
.
[S.M.GAVHANE,J.] [S.S.SHINDE,J.]
snk/2018/FEB18/wp956.18
