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Mradula @ Roshni Dubey vs The State Of Madhya Pradesh on 10 February, 2020

1 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

Gwalior, Dated :10/02/2020

Shri R.S. Yadav, Advocate for petitioner.

Shri P.S. Raghuvanshi, Government Advocate for

respondents/State.

This petition under Article 226 of the Constitution of India has

been filed seeking the following reliefs:-

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2. According to the petitioner, the facts necessary for disposal of

the present petition in short are that the petitioner lodged an oral

report on 23/9/2019 alleging that her daughter (X) aged about 15

years is missing from 26/7/2019. It was alleged that the petitioner had

gone to get her son Mohit admitted in a school and her daughter (X)

was in the house. When she came back at about 1:30 PM, her

daughter (X) was not found in the house and, therefore, it was alleged

that either she has went away without informing anybody or she has

been kidnapped. It was further mentioned that she has enquired from

her relatives, but she could not search out the whereabouts of her

daughter. It was further mentioned that somebody is making a call on

her mobile phone and is alleging that her daughter is with him.

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
2 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

Accordingly, Crime No.491/2019 for offence under Section 363 of

IPC was registered by Police Station Thatipur, District Gwalior.

Thereafter, the petitioner filed a habeas corpus petition before this

Court which was registered as Writ Petition No.1620/2020 and the

daughter of the petitioner (X) was recovered by the police from the

custody of the accused Rinku alias Rajesh and she was produced

before this Court on 29/1/2020 and the habeas corpus petition was

disposed of with a direction to hand over the custody of the daughter

of the petitioner (X) to the petitioner. It is further submitted that the

girl was recovered from Kaithal, Haryana. It is submitted that at the

time of handing over the custody, the girl was got medically

examined and it was found that she is pregnant and thus, this petition

has been filed for the relief mentioned above.

3. This Court by order dated 6/2/2020 had directed the State

counsel to make necessary arrangement for medical examination of

the daughter of the petitioner within two days and accordingly, today

the State counsel has produced a letter dated 9/2/2020 sent by the

Chief Medical Health Officer, District Gwalior to the Additional

Advocate General alongwith the medical certificate issued by Dr.

Jakiya Rehman, Assistant Professor, Department of Obs Gynae,

G.R. Medical College, Gwalior. As per the Usg report dated

3/2/2020, a single live intrauterine fetus of mean gestation age 17

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
3 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

weeks 5 days was found and the uterus has been found to be

approximately 18 weeks size. The following opinion has been given

by the doctor:-

“As per MTP Act, the victim can undergo
abortion till 20 weeks of pregnancy.”

4. The letter written by the CMHO, District Gwalior to the

Additional Advocate General and the medical certificate of the girl

(X) were produced in a sealed cover, which were opened in presence

of the counsel for the parties. The report submitted by Dr. Jakiya

Rehman, Assistant Professor, Department of Obs Gynae clearly

indicates that the abortion can be carried out with the permission of

the Court. The relevant statutory provisions, i.e. Sections 3 and 5 (1)

of the Medical Termination of Pregnancy Act 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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
4 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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 tothe 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.

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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
5 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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. 3as 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.”

5. This Court is dealing with the case of a child aged about 15

years, who is carrying a child of a rapist and the mother of the

prosecutrix (X) does not want that she should give birth to the child

of a rapist. Not only this, the child will also have social stigma

throughout his life and the girl, who is 15 years of age, has to deliver

a child which will certainly result in life threat to the pregnant minor

girl.

6. The Supreme Court in the case of Murugan Nayakkar Vs.

Union of India Ors. in Writ Petition (Civil) No.749/2017 by

order dated 6/9/2017 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
on28.8.2017, 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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
6 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

Board that has been constituted by the order of
this Court expressed the opinion Signature Not
Verified Digitally signed by GULSHANKUMAR
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, le%arned 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 Maharashtra.

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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
7 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

7- 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 submitted by

Dr. Jakiya Rehman, Assistant Professor, Department of Obs Gynae,

this Court is of the opinion that the prayer made by the petitioner and

her daughter deserves to be allowed and is accordingly allowed.

8- The respondents are directed to carry out termination of

pregnancy immediately. The Chief Medical Health Officer, District

Gwalior is directed to admit the child (prosecutrix) latest by

tomorrow, i.e.11/02/2020, and termination of pregnancy be carried

out as early as possible subject to the medical complications.

9- It is needless to mention that the Head of the Department of

Gynecologist, Head of the Department of Anesthesia and all other

Specialists will remain present at the time when termination of

pregnancy will be carried out, as the girl is of tender age and as there

may be a threat to the life of the girl also. Not only this, after the

termination of pregnancy is carried out, the State of Madhya Pradesh

shall ensure postoperative care of the girl (prosecutrix).

10- 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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
8 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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 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 CriL.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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
9 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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 of1971, 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
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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
10 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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. MuddalaVeeramallappa 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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
11 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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 ofthe 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 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
page59b 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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
12 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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 RefiningCo. 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…”

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
13 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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 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 of1971, 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

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
14 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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 of1973 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 of1971 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 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.

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47
15 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.3455/2020
Mridula alias Roshni Dubey Vs. State of M.P. and others

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.”

11- In light of the aforesaid judgment, though this Court has

already granted permission to carry out termination of pregnancy, but

still it is directed that the Doctors who will be 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 the

Department of Anesthesia are not present, senior Doctors having

experience in the field shall carry out the termination of pregnancy.

12- With the aforesaid, writ petition stands allowed.

(G.S. Ahluwalia)
Arun* Judge

Digitally signed by ARUN KUMAR
MISHRA
Date: 10/02/2020 18:10:47

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