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Jagpal Singh vs Public Health And Family Welfare … on 17 May, 2018

HIGH COURT OF MADHYA PRADESH
1 WP No.10809/18

WP No.10809/2018
(Jagpal Singh Vs. State of M.P. and others)
Indore, Dated : 17.5.2018
Shri Dharmendra Chelawat, learned counsel for the
petitioner.
Shri Piyush Jain, learned counsel for the State.
Dr. Sandhya Pancholi (Gynaecologist) present in
person.
Heard.
This writ petition has been filed by the petitioner
seeking a direction to the respondents to terminate the

pregnancy of the petitioner’s daughter.

The case of the petitioner is that the petitioner’s
daughter was kidnapped on the plea of marriage and she
was subjected to rape and has accordingly conceived. Now
the petitioner wants the termination of pregnancy, hence the
present writ petition has been filed.

This Court vide order dated 14.5.2018 had directed the
respondent No.2 to arrange a medical board comprising of
expert from gynaecological department and also permitted
the daughter of the petitioner to appear before the Board.

In pursuance to the direction of this Court the report of
the Medical Board has been submitted. Dr. Pancholi
(Gynaecologist) of District Hospital, Ujjain who was one of
the member of the Medical Board, is also present in person
and referring to the report it has been pointed out that the
pregnancy is only 13-14 weeks old and there is no
contraindication and it would be safe to terminate the
pregnancy.

It has also been pointed out that the coordinate bench
in a case where the pregnancy was of 29 weeks, had
HIGH COURT OF MADHYA PRADESH
2 WP No.10809/18

allowed WP No.7701/2018 by order dated 21.4.2018 by
holding as under:-

“06- Thus, the report reflect that abortion can be
carried out with the permission of this Court. The
relevant statutory provisions i.e. Section 3 and 5(1) of
the Medical Termination of Pregnancy Act, 1971 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) 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.

HIGH COURT OF MADHYA PRADESH
3 WP No.10809/18

(b) Save as otherwise provided in C1.(a), no
pregnancy shall be terminated except with the
consent of the pregnant woman.

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
practitioner, 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.”

07- This Court is dealing with a case of a child aged
about 12 years, who is carrying a child of a rapist and she
does not want to give birth to the child and as argued she
will be in trauma through her life and will not be able to
raise the child, who is a child of a rapist. Not only this, the
child will also have social stigma throughout his life and
the girl, who is 12 years of age, has to deliver a child
which will certainly result in life threat to the pregnant
young girl.

08- The apex Court has dealt with almost similar
situation in the case of Murugan Nayakkar Vs. Union of
India Ors. in Writ Petition (Civil) No.749/2017 and the
apex Court in its order passed on 06/09/2017 has held as
under:-

“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
HIGH COURT OF MADHYA PRADESH
4 WP No.10809/18

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.”

09- 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.

10- The respondents are directed to carry out
termination of pregnancy immediately. The Dean, MGM
Medical College and M.Y. Hospital, Indore is directed to
admit the child (prosecutrix) today itself as she is
present and termination of pregnancy be carried out on
22/04/2018 and if tomorrow is the holiday being
Sunday, the termination be carried out on 23/04/2018.
11- 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).

12- The High Court of Bombay in the case of Shaikh
Ayesha Khatoon Vs. Union of India and Others
reported in 2018 SCC OnLine Bom 11 has dealt with
the issue of termination of pregnancy beyond 27 weeks
as there was several fetal anomalies including a
congenital malformation. The Bombay High Court in the
aforesaid case while dealing with most of the
judgments of the apex Court in paragraph No.14 to 28
has held as under:-

“14. As has been recorded above, the freedom of a
pregnant woman of making choice of reproduction which is
HIGH COURT OF MADHYA PRADESH
5 WP No.10809/18

integral part of “personal liberty”, whether to continue with the
pregnancy or otherwise cannot be taken away. It shall also be
taken into consideration that besides physical injury, the
legislature has widened the scope of the termination of
pregnancy by including “a injury” to mental health of the
pregnant woman. Thus, if continuance of pregnancy is harmful
to the mental health of a pregnant woman, then that is a good
and legal ground to allow termination of pregnancy if all the
conditions incorporated in legal provision are met. In the
instant matter the petitioner claims that it would be injurious to
her mental health to continue with the pregnancy since there
are severe foetal abnormalities noticed and it would also be
violative of her “personal liberty” to deny her the choice to
terminate the pregnancy. The provisions of Section 5 of the
Act of 1971 shall have to be interpreted in the manner for
advancing the cause of justice. In this context it would be
appropriate to refer to the judgment of Division Bench of this
Court in the matter of High Court on its own motion vs. the
State of Maharashtra, reported in 2017 Cri L.J. 218. In
paragraph-13 of the judgment, it is observed thus:

“13. A woman irrespective of her marital status
can be pregnant either by choice or it can be an
unwanted pregnancy. To be pregnant is a natural
phenomenon for which woman and man both are
responsible. Wanted pregnancy is shared equally,
however, when it is an accident or unwanted, then the
man may not be there to share the burden but it may
only be the woman on whom the burden falls. Under
such circumstances, a question arises why only a
woman 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
serious repercussions. It undoubtedly 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 the words “grave injury to her
mental health”. It is mandatory on the registered
medical practitioner while forming opinion of necessity
of termination of pregnancy to take into account
whether it is injurious to her physical or mental health.
While doing so, the woman’s actual or reasonable
foreseeable environment may be taken into account.”

15. While interpreting the provisions of Section 5 of the
Act of 1971, it must be borne in mind the principle that the
section must be construed as a whole whether or not one part
is a saving clause and similarly elementary rule of construction
of section is made of all the parts together and that it is not
permissible to omit any part of it; the whole section must be
read together. The words of Statute are first understood in
their natural, ordinary and popular sense and phrases and
sentences are construed according to their grammatical
meaning unless there be something in the context, or in the
object of the statute in which they occur or in the
circumstances in which they are used, to show that they were
used in special sense different from their ordinary grammatical
meaning. The basic principle that while interpreting the
HIGH COURT OF MADHYA PRADESH
6 WP No.10809/18

provisions of a Statute one can neither add nor subtract even
a single word, has to be kept in mind. A section is to be
interpreted by reading all of its parts together, and it is not
permissible to omit any part thereof. The Court cannot
proceed with the assumption that the legislature, while
enacting the Statute has committed a mistake; it must proceed
on the footing that the legislature intended what it has said;
even if there is some defect in the phraseology used by it in
framing the statute, it is not open to the Court to add and
amend, or by construction, make up for the deficiencies, which
has been left in the Act. The Court can only iron out the
creases but while doing so, it must not alter the fabric, of
which an Act is woven. The Court, while interpreting statutory
provisions, cannot add words to a Statute, or read words into it
which are not part of it, especially when a literal reading of the
same produces an intelligible result. [Vide Nalinakhya Bysack
v. Shyam Sunder Haldar and ors., AIR 1953 SC 148; Sri Ram
Narain Medhi v. State of Bombay, AIR 1959 SC 459; M.
Pentiah and Ors. v. Muddala Veeramallappa and Ors., AIR
1961 SC 1107; The Balasinor Nagrik Co-operative Bank Ltd. v.
Babubhai Shankerlal Pandya and Ors., AIR 1987 SC 849; and
Dadi Jagannadham v. Jammulu Ramulu and Ors., (2001) 7
SCC 71].

16. In the matter of New India Assurance Company Ltd.
v. Nusli Neville Wadia and another, (2008) 3 SCC 279, the
Hon’ble Supreme Court while referring to the analysis of
purposive construction has observed in paragraph-52 as
narrated below:

“52. Barak in his exhaustive work on ‘Purposive
Construction’ explains various meanings attributed to
the term ‘purpose’. It would be in the fitness of
discussion to refer to Purposive Construction in Barak’s
words:

“Hart and Sachs also appear to treat ‘purpose’
as a subjective concept. I say ‘appear’ because,
although Hart and Sachs claim that the
interpreter should imagine himself or herself in
the legislator’s shoes, they introduce two
elements of objectivity: First, the interpreter
should assume that the legislature is composed
of reasonable people seeking to achieve
reasonable goals in a reasonable manner; and
second, the interpreter should accept the non-
rebuttable presumption that members of the
legislative body sought to fulfill their
constitutional duties in good faith. This
formulation allows the interpreter to inquire not
into the subjective intent of the author, but rather
the intent the author would have had, had he or
she acted reasonably.”

(Aharon Barak, Purposive Interpretation in Law
(2007) at pg. 87)

17. A statute must be interpreted having regard to the
purport and object of the Act. The doctrine of purposive
construction must be resorted to. It would not be permissible
HIGH COURT OF MADHYA PRADESH
7 WP No.10809/18

for the Court to construe the provisions in such a manner
which would destroy the very purpose for which the same was
enacted. The principles in regard to the approach of the Court
in interpreting the provisions of a statute with the change in the
societal condition must also be borne in mind. The rules of
purposive construction have to be resorted to which would
require the construction of the Act in such a manner so as to
see that the object of the Act is fulfilled.

18. The two principles of construction – one relating to
casus omissus and the other in regard to reading the statute
as a whole appear to be well settled. In regard to the latter
principle, the following statement of law appears in Maxwell at
page 47:

“A statute is to be read as a whole – “It was resolved in
the case of Lincoln Colleges case (1595) 3 Co Rep.
58B, at page 59b that the good expositor of an Act of
Parliament should make construction on all the parts
together, and not of one part only by itself. Every
clause of a statute is to be construed with reference to
the context and other clauses of the act, so as, as far
as possible, to make a consistent enactment of the
whole statute. (Per Lord Davey in Canada Sugar
Refining Co. Ltd. v. R. 1898 Act 735 (Canada).”

19. As has been observed by the Supreme Court in the
matter of RBI Vs. Peerless General Finance and Investment
Co. Ltd., reported in (1987) 1 SCC 424, the textual
interpretation that matches the contextual is known to be best
interpretation. It is observed in paragraph 33 of the judgment,
thus:

“33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a
whole and then section by section, clause by clause,
phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context,
its scheme, the sections, clauses, phrases and words
may take colour and appear different than when the
statute is looked at without the glasses provided by the
context. With these glasses we must look at the Act as
a whole and discover what each section, each clause,
each phrase and each word is meant and designed to
say as to fit into the scheme of the entire Act. No part of
a statute and no word of a statute can be construed in
isolation. Statutes have to be construed so that every
word has a place and everything is in its place…”

20. Generally speaking, Statutes are classified in
fourfold manner. Firstly, the statutes are remedial, secondly
they are declaratory, thirdly they are procedural and lastly they
are penal or disentitling. One has to find out the character of
HIGH COURT OF MADHYA PRADESH
8 WP No.10809/18

the statute as to whether it is penal or not, so as to apply
principles of strict construction. In the instant matter it cannot
be said that the provisions of the enactment which are relevant
for consideration are penal in character. In a way, the provision
is remedial and procedural. The provision, therefore, cannot
be applied the standards as regards interpretation of a Statute
which is penal in character.

21. On analysis of the judgments and the narrations, as
recorded above, one must while interpreting the provisions of
law, bear in mind that the provision as to be interpreted by
reading all of its parts together and it is not permissible to omit
any part thereof. The golden rule of interpretation is that the
provisions of law have to be read as it is without adding or
subtracting anything therefrom. In an appropriate case, the
Court can only iron out the creases but while doing so, it must
not alter the fabric, of which an Act is woven.

22. In the instant matter, on reading of Section 5 of the
Act of 1971, it does transpire that the contingencies and the
parameters laid down in clauses (i) (ii) of sub-section (2)(b)
of Section 3 shall have to be read in Section 5 except the bar
of limitation as provided in Section 3(2)(b) of the Act of 1971. It
would not be appropriate to over look the contingencies laid
down in clauses (i) (ii) of sub-section (2) (b) of Section 3
while considering the request of a pregnant woman for
termination of the pregnancy if the conditions laid down in
clauses (i) (ii) of sub-section (2)(b) of Section 3 are satisfied
it would provide a good ground for exercise of jurisdiction
under Section 5 of the Act of 1971.

23. The Ministry of Health and Family Welfare,
Government of Maharashtra has prepared the MTP
(Amendment) Bill and the notification in that regard was
published on 29.10.2014. The State Government has
proposed amendment to Section 3 of the Act of 1973 and
clause (C) is proposed to be added which reads thus :

“(C) the provisions of sub-section (2) of section 3 as
relate to the length of the pregnancy shall not apply to
the termination of a pregnancy by a registered health
care provider where the termination of such pregnancy
is necessitated by the diagnosis of any of the
substantial foetal abnormalities as may be prescribed.”

24. Considering the above proposed amendment,
according to us, the interpretation which we have put to
Section 5 of the Act of 1971 appears to be a logical and same
is in consonance with the proposed changes as suggested by
the State in the MTP (Amendment) Bill notified on 29.10.2014.

25. The petitioner has restricted the claim in the petition
in respect of prayer clause (b)(ii) of paragraph-56 of the
Petition. The other prayers recorded by the petitioner in the
instant petition are not pressed. Even otherwise, in view of the
interpretation which we have put to Section 5 of the Act of
1971, prayer clause (a), as requested by the petitioner, does
not need consideration.

26. For the reasons recorded above, the Writ Petition is
allowed. The petitioner is permitted to undergo medical
HIGH COURT OF MADHYA PRADESH
9 WP No.10809/18

termination of pregnancy at a medical facility of her choice.
The petitioner undertakes to report to the approved center for
carrying out the procedure of medical termination of
pregnancy within two days from today.

27. The Counsel appearing for the petitioner states, on
instructions, that the petitioner will bear the medical expenses
of the procedure of medical termination of pregnancy at a
medical facility of her choice.

28. It is clarified at this stage that the petitioner has
been sensitized by the Committee/Medical Board about the
risk factors involved and it would be open for the petitioner 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 Petition.”

13- In light of the aforesaid judgment, though this
Court has already granted permission to carry out
termination of pregnancy, is of the opinion that the
Doctors who are part of the process shall have immunity
in the event of occurrence of any litigation arising out of
the order passed by this Court. It is needless to mention
that in case, the Head of the Gynecologist and Head of
Department of the the Anesthesia are not present, senior
Doctors having experience in the field shall carry out the
termination of pregnancy.”

In the present case since it has been found that the
pregnancy is only 13-14 weeks old and it is safe to terminate
the pregnancy, therefore, the writ petition is allowed and the
petitioner is permitted to approach Dr. Sandhya Pancholi
along with his daughter within a period of one week for
termination of the pregnancy. Let the DNA sample of the
foetus be preserved.

C.C. as per rules.

(Prakash Shrivastava)
Judge
trilok/-

Digitally signed by
Trilok Singh Savner
Date: 2018.05.17
17:37:39 +05’30’

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