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P.Savithiri vs State Of Tamil Nadu on 13 February, 2020

W.P(MD)No.2184 of 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13.02.2020

CORAM:

THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA

W.P(MD)No.2184 of 2020
and
WMP(MD)No.1841 of 2020
P.Savithiri … Petitioner

Vs.

1.State of Tamil Nadu,
rep.by its Principal Secretary,
Home Department,
Fort St. George,
Chennai.

2.The District Collector,
Sivagangai District,
Sivagangai.

3.The Dean,
The Government Medical College,
Sivagangai.

4.The Inspector of Police,
All Women Police Station,
Sivagangai. … Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Mandamus directing the
3rd respondent to terminate the petitioner’s daughter Sasikala
pregnancy within time framed by this Court.

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W.P(MD)No.2184 of 2020

For Petitioner : Mr.J.John
For Respondents : Mrs.J.Padmavathi Devi
Special Government Pleader

ORDER

This writ petition is filed seeking a direction to the 3 rd

respondent to terminate the pregnancy of the petitioner’s daughter

Sasikala.

2.The case of the petitioner in brief is as follows:

The petitioner is a shepherd, whose husband died in the

month of May 2019, leaving behind him the petitioner and two

daughters. Elder daughter viz., Uma got married already and the

younger daughter Sasikala, aged about 26 years is a spastic person

from her childhood and she was never allowed to go outside. While

so, on seeing the unusual bulge of her stomach and body symptom,

she was taken to hospital for medical check up on 24.01.2020,

where, it was found that she was pregnant. On enquiry, it was found

that she was raped by a neighbour one Kasi and based on a

complaint given by Ganesan, an FIR was registered in Crime No.1 of

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W.P(MD)No.2184 of 2020

2020 for the offence under Section 376 IPC. In the above

circumstances and in the interest of the victim, the petitioner prayed

for termination of the illegal pregnancy of her daughter.

3.Earlier, when the matter came up for hearing on

04.02.2020, this Court passed an order directing the third

respondent to file Medical Expert’s report, which reads as follows:

“In this regard, it is necessary to constitute
a Committee of Medical Experts to find out the
possibility of termination of pregnancy and to file a
detailed report before this Court. Admittedly, the
pregnant woman is undergoing psychiatric treatment,
as she is mentally unstable. It is stated that owing to
the pregnancy and delivery of the baby, would be
hazardous to the mother and the child. Therefore, the
third respondent/The Dean, Government Medical
College, Sivagangai is directed to constitute a
Committee consisting of Medical Experts including the
Gynecologist and file a detailed report before this
Court about the age of the foetus and also the Medical
Experts recommendation for medically terminating the
Petitioner’s daughter’s pregnancy.

4.Post the matter on 12.02.2020, for filing
such Medical Expert’s report.”

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W.P(MD)No.2184 of 2020

4.Today, the Certificate of Examination for Sexual Offence

Cases dated 24.01.2020 has been produced along with the

communication from the Dean of Medical College Hospital,

Sivagangai. On medical examination, it was opined as under:

“A case of (Miss.Sasikala, 31 years, mental
retardation) unmarried, primi, 24 weeks of gestational
age (5 months) pregnancy is confirmed. Complete
physical examination and blood investigations done
and she is fit for termination now.”

5.As per the said report, the petitioner’s daughter is 24

weeks of pregnancy and she is fit for termination now. Inspite of

knowing the consequences, the petitioner has approached this Court

for medical termination of pregnancy of her daughter.

6.As per Section 3(2)(a) of the Medical Termination of

Pregnancy Act, 1971 (in short MTP Act), if the length of pregnancy

does not exceed twelve weeks, the medical termination of

pregnancy (MTP) can be done by a medical practitioner. As per

Section 3(2)(b) of the MPT Act, if the length of pregnancy exceeds

twelve weeks, but does not exceed twenty weeks, it should be done

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W.P(MD)No.2184 of 2020

by not less than two registered Medical Practitioners and that in

their opinion, formed in good faith, the continuance of the

pregnancy would involve a risk to the life of the pregnant woman or

of grave injury to her physical and mental health and also there is a

substantial risk that if the child were born, it would suffer from

physical and mental abnormalities as to be seriously handicapped.

7.In the case on hand, the victim is having a foetus of 24

weeks which exceeds the termination period provided under Section

3 of the Act. One of the comments on the MTP Act, 1971 was that it

failed to keep pace with advances in medical technology that allow

for the removal of a foetus at a relatively advanced state of

pregnancy. Considering this and few other remarks, recently, the

Union Cabinet has approved the Medical Termination of

Pregnancy (MTP) (Amendment) Bill, 2020. The Bill seeks to

extend the termination of pregnancy period from 20 weeks to 24

weeks, making it easier for women to safely and legally terminate

an unwanted pregnancy. But unfortunately, the Bill is pending

before the parliament for its approval.

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W.P(MD)No.2184 of 2020

8.At this juncture, the learned counsel for the petitioner

drawn the attention of the Court to the decision of the Hon’ble

Supreme Court in the case of Tapasya Umeshpisal V. Union of

India and others, reported in (2018) 12 Supreme Court

Cases, 57, wherein it is held as follows:

“8.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 foetus 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.

9.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.”

9.This Court has also dealt with a similar issue in the case

of A.Dakshinamurthy V. The State rep.by Secretary and

others [W.P.No.957/2019] and observed as follows:

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W.P(MD)No.2184 of 2020

7. As referred earlier, the mother herself is
suffering from hypothyroidism and the Doctors have
opined that it will be a risk continue the pregnancy. At
this juncture, it is relevant to note that a Three-Judge
Bench of the Hon’ble Apex Court in Suchita Srivastava V.
Chandigarh Admn., (2009) 9 SCC 1, held that a woman’s
right to make reproductive choices is also a dimension of
personal liberty as understood under Article 21 of the
Constitution. The following paragraph is usefully quoted
from the said judgment :

22. 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 recognise that reproductive
choices can be exercised to procreate as well
as to abstain from procreating. 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.

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W.P(MD)No.2184 of 2020

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.”
Ultimately, this Court allowed the petitioner’s daughter
therein to undergo termination of pregnancy.

9(a).It is pertinent to point out that there should be a

permanent Committee constituted for setting up a protocol

procedure or permanent mechanism for expediting the termination

of pregnancy involving rape victims and abnormal foetus cases.

10.Considering the decisions cited supra, the mental and

physical condition of the victim and in order to respect the personal

liberty of a woman, the welfare of the unborn and after perusal of

the report submitted by the third respondent/Dean that the victim is

fit for pregnancy termination, this Court permits the petitioner’s

daughter Sasikala to undergo the medical termination of her

pregnancy. Accordingly, the procedure for termination of pregnancy

of Sasikala/daughter of the petitioner, shall be done by a team of

medical experts, including the experts in Obstetrics and Gynecology

under the supervision of the third respondent, after examining her

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W.P(MD)No.2184 of 2020

physical fitness at the earliest. The third respondent is also directed

to retain DNA of foetus for the purpose of criminal trial.

11.The writ petition is allowed accordingly. No costs.

Consequently, WMP(MD)No.1841 of 2020 is closed.

13.02.2020

Note : Issue order copy today (13.02.2020)

Index :Yes/No
Internet : Yes/No

mj

To

1.The Principal Secretary,
State of Tamil Nadu,
Home Department,
Fort St. George,
Chennai.

2.The District Collector,
Sivagangai District,
Sivagangai.

3.The Dean,
The Government Medical College,
Sivagangai.

4.The Inspector of Police,
All Women Police Station,
Sivagangai.

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W.P(MD)No.2184 of 2020

PUSHPA SATHYANARAYANA, J.

mj

W.P.(MD)No.2184 of 2019

13.02.2020

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