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Deepnarayan vs The State Of Madhya Pradesh on 21 August, 2018

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HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.P.No.17871/2018
(Deepnarayan Vs. The State of M.P. Others)
Indore, Dated: 21.08.2018
Shri Abhishek Tugnawat, learned counsel for the
petitioner.

Ms. Bharti Lakkad, learned GA for the respondent/State.

The petitioner has filed the present petition seeking
permission/direction for termination of pregnancy of his
daughter. The daughter of the petitioner was kidnapped and
raped by the accused for which an FIR has been lodged under
Crime No.402/2018, Police Station, Hiranagar, District Indore.
Because of the said unfortunate incident, she became pregnant
and at present, she is carrying pregnancy of 16 weeks. Since,
she is victim of rape, therefore, she is not interested in
continuing the pregnancy and hence, father of the victim i.e.
the petitioner has approached this Court seeking direction to
the respondent to terminated the pregnancy.

This Court has directed Superintendent of the M.Y.
Hospital to examine the condition of the victim whether the
termination is advisable and it would not effect the health of
the victim.

Learned Government Advocate has produced the report
submitted by the Joint Director and Superintendent of
M.Y.Hospital which is reproduced below:

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As per the report, the life of fetus is 16 weeks and
therefore, there is no hurdle in terminating the pregnancy.

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 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:

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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 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.

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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 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
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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
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
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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 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
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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
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 petitioner 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
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Medical College and M.Y. Hospital, Indore is directed to admit
the daughter of the petitioner (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
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: 2018.08.21
17:03:01 +05’30’

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