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X Minor Through Her Mother Madhu vs State Of M.P. Through Home … on 19 March, 2020

1 W.P. No. 5521 of 2020

W.P. No. 5521 of 2020
(X Minor through her mother Madhu Vs. State of M.P and others)
Indore dated: 19-3-2020
Shri Ashish Choubey, Counsel for the petitioner
Shri Pourush Ranka, Counsel for the State
Heard finally.

This petition under Article 226 of the Constitution of India has
been filed seeking the following relief(s) :

“(i) To issue such order/writ to the respondent to

grant permission/direction for termination of
pregnancy of Victim/petitioner.

(ii) To direct respondent no.2 to carry out
termination of pregnancy immediately.

(iii) Pass any such other appropriate order as may
be deemed fit just and expedient in the interest of
justice.”

2. The necessary facts for disposal of the present petition in short
are that the petitioner lodged a FIR on 16-2-2020 against Rahul Pal,
Sunita Pal, Dhruv Pal and Manoj Pal, on the allegations that She is
aged about 17 years. Rahul Pal, on the pretext of marriage, developed
physical relations with her, as a result of which She is carrying the
pregnancy of 3 months. Thereafter, Rahul has refused to marry her.
When She made complaint to his parents, namely Smt. Sunita Pal,
and Dhruv Pal, then they also supported their son and scolded the
petitioner. Similarly, Manoj Pal, who is the brother of Rahul Pal, also
tried to outrage her modesty.

3. On this complaint, FIR No. 105/2020 has been registered at
Police Station Dwarikapuri, Distt. Indore for offence under Sections
363,366-A,376(2)(n), 376-D,323,294, 354(A) of I.P.C., under Section
2 W.P. No. 5521 of 2020

5,6,11,12 of POCSO Act, 2002 and under Section 3(1)(gh),3(1)(w)(i),

(ii),3(2)(v),(va) of Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act, 1989.

4. This petition has been filed seeking permission to terminate the
pregnancy. The petitioner claims herself to be a minor aged about 17
years.

5. This Court, by order dated 13-3-2020, directed the petitioner to
appear before the Medical Board on 14-3-2020 at 11:00 AM in M.Y.
Hospital Indore for medical examination by a Medical Board.

6. The Medical Board has submitted the following report:

“1. According to her USG report (dated on
16.03.2020) her pregnancy is 16 weeks +6 days.

2. According to two expert gynaecologists,
patient has 16 week 6 day pregnancy, by sonography and
according to MTP act she can undergo termination of
pregnancy with anaemia correction.

3. As per psychiatric point of view petitioner
on preliminary history and systematic examination shows
no features of any psychiatric illness at present. She
seems to posses age appropriate mental capacity and is of
sound mind.

4. As per medicine opinion patient can be
taken for termination procedure(medical/surgical) after
correction of anemia (haemoglobin10gm)

5. As per anesthetic opinion patient is
clinically fit for now after correction of anemia.
(haemoglobin10gm).

6. In medical board members opinion, the
petitioner is fit for termination of pregnancy after
correction of anemia.”

3 W.P. No. 5521 of 2020

7. Considered the submissions as well as the report submitted by
the Medical Board.

8. 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 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
4 W.P. No. 5521 of 2020

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
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 W.P. No. 5521 of 2020

9. This Court is dealing with the case of a child aged about 17
years, who is carrying a child of a person, against whom the
allegations of rape have been made and a criminal case also been
registered. Not only this, the child will also have social stigma
throughout his life and the girl, who is 17 years of age, has to deliver
a child which will certainly result in life threat to the pregnant minor
girl.

10. 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
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
6 W.P. No. 5521 of 2020

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.”

11. 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
Medical Board, MY Hospital, Indore, this Court is of the opinion that
the prayer made by the petitioner deserves to be allowed and is
accordingly allowed.

12. The respondents are directed to carry out termination of
pregnancy immediately. The Chief Medical Health Officer, District
Indore is directed to admit the child (prosecutrix) latest by
7 W.P. No. 5521 of 2020

tomorrow, i.e.20/03/2020, and termination of pregnancy be carried
out as early as possible subject to the medical complications
specifically after correction of anemia.

13. 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).

14. 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 held as under :-

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.”

15. 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
8 W.P. No. 5521 of 2020

Department of Anesthesia are not present, senior Doctors having
experience in the field shall carry out the termination of pregnancy.

16. With the aforesaid, writ petition stands allowed.

(G.S. Ahluwalia)
Judge
MKB*

Digitally signed by MAHENDRA
KUMAR BARIK
Date: 2020.02.03 21:52:16 +05’30’

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