ABC vs State Of Chhattisgarh

This Court vide order dated 28.02.2022 had directed the respondents to get the petitioner medically examined under the supervision of the respondents 2 & 3 and to submit a report so far as the health condition of the petitioner is concerned.

The respondents have now submitted a report dated 02.03.2022 issued by the respondent no.2 whereby two gynecologist doctors who medically examined the petitioner have opined that the petitioner can be subjected to termination of pregnancy as the petitioner as of now is carrying pregnancy of 18-21 weeks.

The facts in brief are that the petitioner, a minor girl was allured by accused Tukeshwar Sahu and was subjected to rape. Initially a missing report was lodged and a case under Section 363 was registered. However, subsequently when the petitioner was recovered, according to the petitioner, the offence under Sections 366 & 376 (2) (n) of IPC has been registered against accused Tukeshwar Sahu. As a result of the petitioner being subjected to rape, she has got conceived and as of now is pregnant of 14 weeks and 5 days as on 26.11.2019. The petitioner has approached this Court seeking for termination of the pregnancy.

The petitioner has relied upon the orders passed by this Court on 27.08.2019 in WPC No. 2869/2019 and on 23.10.2019 in WPC No. 3674/2019 in support of her contention.

The State counsel as has been held earlier on the previous date directed to get the medical opinion so far as the health condition of the petitioner is concerned and the respondent No.2 has submitted their report showing that the petitioner can be permitted to termination of pregnancy.

It would be relevant at this juncture to refer to paragraph Nos. 6 to 9 of the judgment passed in WPC No. 2869/2019 on 27.08.2019, which are as under:-

“6. The Supreme Court in the case of Meera Santosh Pal & others Versus Union of India and others {(2017) 3 SCC 462} has reiterated the view taken in the case of Suchita Srivastava Vs. Chandigarh Admn {(2009) 9 SCC 1} and has observed thus in para 9, which is reproduced hereunder:-

“9. In Suchita Srivastava v. Chandigarh Admn {(2009) 9 SCC 1} a Bench of three Judges held “a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”. The Court there dealt with the importance of the consent of the pregnant woman as an essential requirement for proceeding with the termination of pregnancy. The Court observed as follows :-

“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. 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.”

Reading of section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act of 1971') makes it clear that where length of pregnancy does not exceed 20 weeks and not less than two registered medical practitioners have formed an opinion in good faith that the continuance of pregnancy would involve a risk to the life of pregnant woman or grave injury to her physical or mental health, the pregnancy can be terminated by a registered medical practitioner. This act of medical practitioner, if aforesaid conditions are satisfied, will not attract the penal provisions mentioned in Indian Penal Code. In other words, such registered medical practitioner shall not be guilty of any offence under the IPC or under any other law for the time being in force if conditions mentioned in Section 3 or Section 5 of the Act are satisfied.

Explanation 1 of the Act of 1971 purports that when 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. Sub section 4(a) of section 3 further contemplates that no pregnancy of a woman, who has not attained the age of eighteen years, for termination of the pregnancy consent has to be obtained in writing from her guardian.

The instant petition has been preferred by the mother of the victim being her natural guardian and the victim has also been made petitioner No.1 and the report which is called from the team of the two medical practitioner of Civil Surgeon, Main Hospital, Mahasamund shows that the patient is fit to undergo termination of pregnancy and the pregnancy is of 17 weeks 01 days.”

Based on the aforesaid findings, the Coordinate Bench of this Court had allowed the writ petition and permitted the petitioner for terminating the pregnancy.

Bare perusal of the facts in the present case would show that the said judgment of this Court in WPC No. 2869/2019 is on similar footing and the condition of the petitioner therein and the petitioner herein also are almost similar except for the period of pregnancy.

In view of the aforesaid facts and circumstances of the case and also taking note of the decision of this Court rendered in WPC No. 2869/2019 decided on 27.08.2019, this Court is also inclined to take the same stand and allow the present writ petition permitting the petitioner to undergo with the termination of her pregnancy.

Accordingly, it is directed that let the petitioner approach the respondent No.2 on 7th of March, 2022 and the respondent No.2 in turn shall ensure that the petitioner is subjected to medical termination under the supervision of two registered medical practitioners preferably two senior Doctors available in the said district after obtaining due consent of the petitioner as well as her guardian. The DNA sample of the fetus shall also be taken and preserved for further evidence as the criminal case against the accused is still pending. Let this exercise be carried without any further delay.

With the aforesaid observations, the present writ petition stands allowed and disposed of.

Certified copy today.