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Ritika Prajapat Minor Thr. Father … vs Women And Child Development … on 18 July, 2019

W.P. No.12138/2019 1

THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.12138/2019
(Ritika Prajapat minor through father Jitendra Prajapat Vs. State of M.P. and others)

Indore, Dated : 18/07/2019
Shri Amit Dubey, learned counsel for the
petitioner.
Shri Paresh Joshi, learned counsel for the
respondents/State.

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 his daughter is
aged about 14 years, she is a student of class 7 th, she was
subjected to rape by respondent no.5, a resident of her
village and has accordingly conceived. Now the petitioner
wants the termination of pregnancy, hence the present writ
petition has been filed.

As per the report received from the Department
of Obstetrics Gyanecology, MY Hospital and MGM
Medical College Indore, dated 02/07/2019, the pregnancy
of the petitioner’s daughter is about 22 weeks and 4 days
old and she is fit for termination of pregnancy but Pre-
anesthetic medical checkup and opinion of consultant
Anesthesia and Medicine, Psychiatry will be required in
case if medical method of termination fails and surgical
intervention is required (Hysterotomy under spinal or
General Anesthesia), however, the pregnancy can be

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 2

terminated under the MTP Act, 1971 at M.Y. Hospital and
M.G.M. Medical College, Indore.

Leaned counsel for the petitioner submits that
the coordinate bench of this Court in a case where the
pregnancy was of 29 weeks, had 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.

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 3

(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
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 that the termination of
pregnancy should be carried out. That 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.

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 4

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 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.

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 5

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 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 6

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 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 7

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 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 8

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 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)

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 9

(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 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

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45
W.P. No.12138/2019 10

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 context of the aforesaid judgment passed
by this Court and looking to the facts that in the present
case the pregnancy is 22 weeks and 4 days old and
termination can be done at M.Y. Hospital MGM,
Medical College, Indore, this petition is allowed and the
petitioner’s daughter is permitted for medical termination of
the pregnancy and she is directed to approach the HOD of
the Gynaecology Department of MY Hospital, Indore
within a period of three days from the date of receipt of
certified copy of this order, where Senior Doctors having
experience in the field shall carry out the termination of
pregnancy of petitioner’s daughter after medical fitness and
they can take the assistance from consultant Anesthesia and
Medicine, in case if medical method of termination fails
and surgical intervention is required (Hysterotomy under
spinal or General Anesthesia). Let the DNA sample of the
foetus be preserved.

With the aforesaid, writ petition No. 12138/2019
stands allowed.

Certified copy as per rules.

(S.K. Awasthi)
Judge
sumathi

Digitally signed by Sumati Jagadeesan
Date: 18/07/2019 15:20:45

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