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Chagan vs The State Of Madhya Pradesh on 11 July, 2018

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HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.P.No.13457/2018
(Chagan Another Vs. The State of Madhya Pradesh
Others)
Indore, Dated: 11.07.2018
Shri Akshat Pahadia, learned counsel for the
petitioner.

Shri Amit Singh Sisodia, learned GA for the
respondent/State.

The petitioners have approached this Court seeking
permission/direction for termination of pregnancy of their
minor daughter.

The daughter of the petitioners is a rape victim. They
lodged an FIR No.199/2018 dated 10.04.2018 at Police
Station Kukshi, District Dhar. The accused was arrested
under Sections 450, 363, 366(A), 376, 376(2)(n) of the
IPC and 3/4 of Protection of Children from Sexual
Offences Act, 2012. The statement of the prosecutrix has
been recorded under Section 164 of the Cr.P.C. Because of
that unfortunate incident, she became pregnant and as on
15.05.2018, the life of fetus was 25 weeks and six days.
Since, the life of fetus has exceeded 12 weeks, therefore,
under the provisions of Medical Termination of Pregnancy
Act, 1971 (hereinafter referred as “Act of 1971”) the
doctors have restrained themselves to terminate the
pregnancy, Hence, the petitioners have approached this
Court by way of writ petition as victim do not want to
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continue with pregnancy.

By order dated 22.06.2018 this Court has directed
Government Advocate to seek instructions. Thereafter,
vide order dated 29.06.2018, the Team of Doctors of M.Y.
Hospital were directed to examine the health condition of
the daughter of the petitioners and submit the report
whether the pregnancy can be terminated at this stage. The
daughter of the petitioners was examined by the Team of
Doctors Dr. Nisha Mandloi, Dr. Vibha Mojes and Dr.
Sumitra Yadav. Thereafter, they submitted a joint report to
the Superintendent of M.Y. Hospital recommending
termination of pregnancy. The report is reproduced below:

” egksn;]
mijksDr fo”k; esa crk;k tkrk gS fd ejht
fu’kk firk Nxuyky] mez 16 o”kZ] fnukad 03-07-18 dks nksigj 1
ctsa Lhjksx ,oa izlwfr foHkkx dh vksihMh esa esfMdy ijh{k.k gsrq
mifLFkr gqbZA xfBr desVh }kjk mDr ejht dk ijh{k.k fn- 03-07-
18 ,oa 4-07-18 dks fd;k x;k] desVh ds le{k fuEu fcUnq vk, gSA
1- lksukxzkQh MkW- vpZuk HkVukxj] lgk;d izk/;kid] jsfM;ks foHkkx
dh tkWp djus ij irk pyk dh ejht ds 25 lIrkg 6 fnu 2 g¶rs
dk xHkZ gSA
2- MTP Act ds rgr dsoy 20 g¶rs ¼20 Week½ rd dk gh xHkZikr
fd;k tk ldrk gSA
3- desVh ds lnL;ksa dk iw.kZ :i ls ijh{k.k o USG ns[kus ds
i’pkr vfHker gS fd 20 g¶rs ls T;knk dk xHkZikr] ekuuh;
gkbZdksVZ dh vuqefr ls gh laHko gSA 20 g¶rs ls T;knk dk xHkZikr
djus esa ejht dks ijs’kkuh ,oa tku dks [krjk Hkh gks ldrh gSA “

The petitioners’ daughter is a rape victim and not
willing to continue with the pregnancy since the period of
pregnancy is 25 weeks and termination is not permissible
under Section 3 of the Act of 1971.

Learned counsel for the petitioners submits that in
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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 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
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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 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
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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 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 of pregnancy, which is necessary to save the
life of the pregnant woman, is permissible.”

In case of Tapasya Umesh Pisal Vs. Union of India,
reported in AIR 2017 SC 3931 the Apex Court has
permitted termination of pregnancy where the girl was into
her 24 week of pregnancy. Relevant portion of the
aforesaid judgement is reproduced below:

“9. In these circumstances, it is difficult for us to refuse
the permission to the petitioner to undergo medical
termination of pregnancy. It is certain that the fetus if
allowed to born, would have a limited life span with serious
handicaps which cannot be avoided. It appears that the baby
will certainly not grow into an adult.

10. In view of the above, we consider it appropriate in the
interests of justice and particularly, to permit the petitioner
to undergo medical termination of her pregnancy under the
provisions of Medical Termination of Pregnancy Act, 1971.
Mr. Ranjit Kumar, learned Solicitor General appearing for
the respondents, has not opposed the petitioner’s prayer on
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any ground, legal or medical. We order accordingly.”

In case of Meera Santosh Pal Others Vs. Union
of India and Others, reported in 2017(I) MPWN 44, the
Apex Court has permitted the termination of pregnancy
even after 24 weeks. Relevant portion of the aforesaid
judgement is reproduced below:

“The crucial consideration is that a woman’s right to
privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman’s right to
refuse participation in sexual activity or alternatively the
insistence on use of contraceptive methods. Furthermore,
women are also free to choose birth control methods such as
undergoing sterilisation procedures. Taken to their logical
conclusion, reproductive rights include a woman’s entitlement
to carry a pregnancy to its full term, to give birth and to
subsequently raise children…..” The crucial consideration in
the present case is whether the right to bodily integrity calls
for a permission to allow her to terminate her pregnancy. The
report of the Medical Board clearly warrants the inference
that the continuance of the pregnancy involves the risk to the
life of the pregnant woman and a possible grave injury to her
physical or mental health as required by Section 3 (2)(i) of the
Medical Termination of Pregnancy Act, 1971. Though, the
pregnancy is into the 24th week, having regard to the danger
to the life and the certain inability of the fetus to survive extra
uterine life, we consider it appropriate to permit the petitioner
to terminate the pregnancy. The overriding consideration is
that she has a right to take all such steps as necessary to
preserve her own life against the avoidable danger to it. ”

In recent judgement passed by the constitution bench
of the Supreme Court in case of Murugan Nayakkar Vs.
Union of India Others, passed in W.P(Civil).
No.749/2017 the Court has permitted termination of
pregnancy of a 13 year old victim of rape and sexual
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abused, considering the trauma which she has suffered.
Relevant portion of the aforesaid judgement is reproduced
below:

“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 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 GULSHAN KUMAR 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
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Maharashtra.

The writ petition is accordingly disposed of. There
shall be no order as to costs.”

In light of the aforesaid judgment, considering the
age of the girl, trauma which she has to suffer and the
agony she is going through at present and also keeping in
view the report of Medical Board constituted by this Court,
this Court is of the opinion that the prayer made by the
petitioner and his daughter 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 respondents are directed to carry out termination
of pregnancy immediately if health condition of the girl
i.e. the daughter of the petitioners 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 consent under
the Act. The Dean, MGM Medical College and M.Y.
Hospital, Indore is directed to admit the daughter of the
petitioners (prosecutrix) and examine before termination of
pregnancy within 3 days positively as per the consent
given by her parents as required under sub Section (4)
of Section 3 of the Medical Termination of
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Pregnancy Act, 1971 health condition.

It is needless to mention that the Head of the
Department of Gynecologist, Head of the Department of
Anesthesia and all other specialist will remain present at
the time termination of pregnancy is carrying out, as the
girl is of tender age and as their is a threat of life of the girl
also. Not only this, after the termination of pregnancy is
carrying out, the State of Madhya Pradesh shall ensure
post operative care of the girl (prosecutrix).

With the aforesaid, present writ petition stands
allowed.

CC as per rules.

(VIVEK RUSIA)
Judge
jasleen

Digitally signed by Jasleen
Singh Saluja
Date: 2018.07.12 15:59:37
+05’30’

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