Abc vs State Of Chhattisgarh

Sachin Singh Rajput, J

A major victim of forcible sexual intercourse/rape by accused in Crime No.306/2024 registered at Police Station Dabhra District Sakti has filed this writ petition seeking the following reliefs:-

i. To kindly call for the entire records in the present case.

ii. To permit the petitioner to terminate her ongoing pregnancy through registered medical practitioners at any approved private or government centre of hospital.

iii. To direct then State to form a panel of experts doctors either 0at the District Hospital Janjgir-Champa, District Sakti or any Government Medical Hospital including Raipur as early as possible for termination of pregnancy of the petitioner.

iv. To kindly make any other order that may be deemed fit and just in the facts and circumstances of the case including awarding of the costs to the petitioner.

This writ petition has come up for hearing on 30.09.2023 and on the said date, this Court directed the respondent No.3 to constitute a Medical Board to ascertain the medical condition of the petitioner and submit a report before this Court on 07.10.2024.

In compliance of said order, a medical Board was constituted by respondent No.3 on 01.10.2024 consisting of one Gynecologist, pediatrician and a medicine expert . The medical Board examined the petitioner on 04.10.2024. The doctors, who medically examined the petitioner, have opined that as gestation age is between 19 weeks 2 days as on 05.10.2024, therefore, medical termination of pregnancy can be performed according to the Medical Termination of Pregnancy Act, 1971.

Relevant portion of medical report reads thus:-

“ As per examination of the patient, Blood report investigation and ultrasound, we have reached a conclusion that patient can be taken for medical termination of pregnancy under MTP Act, 2021 which require opinion of two Gynecologist as per MTP Act 2021 as per patient is 20 weeks. Patient has high risk of perforation of uterus, heavy bleeding during and after procedure and chances of hysterotomy in case of failure of induction, so termination should be done is tertiary care center.”

I have heard learned counsel for the parties and perused the documents available in record.

In order to appreciate the prayer made in this writ petition, Section 3 of the Medical Termination of Pregnancy Act, 1971, as amended time to time is noticed herein-below:-

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 the 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 twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty four weeks, in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are of the 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 to her physical or mental heath; 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.

(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 to 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 [mentally ill person], shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.”

The above quoted provision permits termination of pregnancy by a registered medical practitioner with regard to circumstances, formed in good faith, specified in sub-clauses (i) & (ii) of sub-section (2) of Section 3 of the Act of 1971 and when the length of pregnancy does not excess 24 weeks. Likewise, Explanation-I to sub-section (2) of Section 3 also provides that in no uncertain terms that where the 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. The termination of pregnancy under the provisions of the Act of 1971 is not the rule, but it is only an exception.

Section 5 of the MTP Act provides for the situation when Sections 3 & 4 would have no application. According to this Section, the provisions of Section 4 and so much of the provisions of sub-section (2) of Section 3, relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a 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. Thus, where the life of pregnant woman is at risk, termination of pregnancy would be permissible despite the provision contained in sub-section (2) of Section 3 of the MTP Act.

In the case of Suchita Srivastava and Another v Chandigarh Administration, reported in (2009) 9 SCC 1, the Hon'ble Supreme Court has laid down the guidelines based on the principle of “best interests” theory and held that the Court is required to ascertain the course of action which would serve the best interests of the person in question. Relevant portion of the said decision is quoted below for ready reference:-

"36. Courts in other common law jurisdictions have developed two distinct standards while exercising "parens patriae" jurisdiction for the purpose of making reproductive decisions on behalf of mentally retarded persons. These two standards are the "best interests" test and the "substituted judgment" test.

As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights."

In case of X v. Union of India and others, reported in (2016) 14 SCC 382, the Hon'ble Supreme Court has held that in case of grave danger to physical and mental health, termination of pregnancy of a pregnant woman (an alleged rape victim), is permissible, and observed as under:-

“13. Having perused the medical report (relevant extracts whereof have been reproduced herein above), we are satisfied that a clear finding has been recorded by the Medical Board, that the risk to the petitioner of continuation of her pregnancy can gravely endanger her physical and mental health. The Medical Board has also expressed an advice that the patient should not continue with the pregnancy. In view of the findings recorded in Para 6 of the report, coupled with the recommendation and advice tendered by the Medical Board, we are satisfied that it is permissible to allow the petitioner to terminate her pregnancy in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. In view of the above, we grant liberty to the petitioner, if she is so advised, to terminate her pregnancy."

In case of Hallo Bi @ Halima v. State of MP & ors, reported in 2013 (2) M.P.L.J., the M.P. High Court has held that a victim of violent rape/forced sex cannot be compelled to give birth to a child of rapist. Similar proposition has been laid down by Hon'ble Supreme Court in the matter of X and Others v Union of India and Others, reported in (2017) 3 SCC 458 and Meera Santosh Pal and Others v Union of India and Others, reported in (2017) 3 SCC 462.

In the case at hand, there is no dispute that petitioner is victim of forcible sexual intercourse/rape. She is desirous of terminating pregnancy as she does not want to give birth to the child of a rapist. It is her personal choice to terminate pregnancy which the Court must respect as it is a facet of her personal liberty as has been held by the Supreme Court in case of Suchita Srivastava (supra). Continuation of pregnancy can gravely endanger her physical and mental health. Report of Medical Board, District Sakti who medically examined the petitioner, would show that pregnancy of petitioner is of 19 weeks 2 days on 05.10.2024 i.e. within the outer limit of 24 weeks prescribed in Section 3 of the Act of 1971 for termination of pregnancy.

This Court in case of ABC (Minor) through natural guardian XYZ Vs. State of chhattisgarh and others passed in WPC No.2898/2023 order dated 04.07.2023 relying upon the above states judments of the Hon’ble Supreme Court in Paragraph 12 observed as under:-

“In the above circumstances, this Court is of the considered view that not permitting rape victim in the present case to go in for medical termination of unwanted pregnancy would amount to compelling her to continue to bear such pregnancy for full duration and deliver the child, which would be violative of her bodily integrity, it would not only aggravate her mental trauma but would also have devastating effect on her overall health including on psychological and mental aspects. This is violative of her personal liberty, to borrow the words of the Supreme Court in Suchita Srivastava (supra), because "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". In the peculiar facts of the case, her personal integrity has to be respected. It may even be more dangerous to the unborn child too because the society would also not take petitioner or her child properly and respectfully”.

13.The Hon’ble Supreme Court in the case of XYZ Vs. State of Gujarat and Others reported in 2023 SCC Online SC 1573 in Para 13 observed as under:-

“13. In Indian society, within the institution of marriage, generally pregnancy is a reason for joy and celebration and of great expectation, not only for the couple but also for their families and friends. By contrast, pregnancy outside marriage, in most cases, is injurious, particularly, after a sexual assault/abuse and is a cause for stress and trauma affecting both the physical and mental health of the pregnant woman the victim. Sexual assault or abuse of a woman is itself distressing and sexual abuse resulting in pregnancy compounds the injury. This is because such a pregnancy is not a voluntary or mindful pregnancy.”

Mr. Kripal Singh Kanwar, CMHO, Sakti submits that after the examination of the petitioner, there is no risk in terminating the pregnancy of the petitioner, however, he submits that the District Hospital Sakti does not have sufficient infrastructure to carry out the termination of the pregnancy of the petitioner and she would be advised to get it done in the medical college, Bilaspur.

For the foregoing reasons and placing reliance on the judgments mentioned as aboved, this writ petition seeking permission for medical termination of pregnancy of petitioner, is allowed. Looking to the opinion of doctors, who medically examined petitioner, that it would be appropriate to terminate pregnancy of petitioner in any medical college, petitioner is permitted to approach the Superintendent of CIMS, Bilaspur who shall ensure that petitioner is subjected to termination of her pregnancy after completing all the other requisite formalities required for the same. The Superintendent is further directed to issue instructions to the hospital authorities permitting her to be subjected to termination of her pregnancy under the supervision of two registered medical practitioners including Specialist Doctors in the field i.e. Department of Gynaecology. The Superintendent is also directed to ensure that the DNA sample of the fetus shall also be taken and preserved for further evidence of criminal case.

Let this exercise be carried out without any further delay and the petitioner is directed to approach the Superintendent, CIMS, Bilaspur on 10.10.2024 for the aforesaid purpose. The Superintendent shall further take all necessary steps. The Government Counsel is also directed to intimate the Superintendent, CIMS Bilaspur as regards the next course of action that has to be taken.

The report submitted by the State counsel so far as the health condition of petitioner is taken on record.

State is directed to communicate the said order to all concerned.

Certified copy as per rules.