Dharmendra vs State Of Madhya Pradesh & Others

The petitioner has approached this Court seeking permission/direction for termination of pregnancy of her minor daughter.

The daughter of the petitioner is a rape victim. She lodged an FIR No.90/2008 dated 11.06.2018 at Police Station Jetapur, District Khargone. The

accused was arrested under Section 363, 366 (A), 376 of IPC and 3/4 of Protection of Children from Sexual Offences Act. The statement of the

prosecutrix has been recorded under Section 64 of the Cr.P.C. Because of that unfortunate incident, she became pregnant and as on 14.06.2018,

the life of fetus was 23 weeks and six days. Since, the life of fetus has exceeded 12 weeks, therefore, under the provisions of Medical Termination

of Pregnancy Act, 1971 (hereinafter referred as ""Act of 1971"") the doctors have restrained themselves to terminate the pregnancy, Hence, the

petitioner has approached this Court by way of writ petition as victim do not want to continue with pregnancy.

By order dated 22.06.2018 this Court has directed Government Advocate to seek instructions. Thereafter, vide order dated 02.07.2018, the Team

of Doctors of M.Y. Hospital were directed to examine the health condition of the daughter of the petitioner and submit the report whether the

pregnancy can be terminated at this stage. The daughter of the petitioner was examined by the Team of Doctors Dr. Anupama Dave, Dr. Ranjana

Patil and Dr.Deepa Joshi. Thereafter, they submitted a joint report to the Superintendent of M.Y. Hospital recommending termination of

pregnancy. The report is reproduced below:

She was examined by a team of doctors. It is found that she is 26 weeks pregnancy on examination and as per ultrasound there is 25 weeks 4 day

single live fetus. As per history, she has no significant medical or surgical illness. She has been advised relevant investigations.

We are of the opinion that because pregnancy is 25 weeks 4 days termination cannot be done as it is beyond the limits of MTP rules but because

pregnancy is as a result of rape. Patient is 16 year old & continuation of pregnancy would have tremendous physical, mental, emotional & social

impact on the girl.

Medical termination of pregnancy can be done but there are chances of delivering a baby with some signs of life but delivery of a fully grown baby

at 9 month would be comparatively more traumatic to the girl.

The petitioner's daughter is a rape victim and not willing to continue with the pregnancy since the period of pregnancy is 25 weeks and termination

is not permissible under Section 3 of the Act of 1971.

Learned counsel for the petitioner submits that in view of the explanation of sub-section (2) of Section 3 the termination of pregnancy is

permissible.

The Apex Court in case of Ms. X Vs. Union of India & Others, reported in AIR 2016 SCC 3525 has held that Section 5 of the Act lay down the

exception to Section 3 if as per opinion of less than 2 registered Medical Practitioner gives the opinion of in good faith in respect of termination of

pregnancy to save the life of pregnant women. By placing reliance over the aforesaid section the Apex Court has granted liberty to the petitioner

to terminate her pregnancy. Relevant portion of the aforesaid judgement is reproduced below:

The question that arises for our consideration is, whether it would be justified and legal, to terminate the pregnancy of the Petitioner, which the

Medical Report itself shows, as of 24 weeks duration? Learned Attorney General representing the Union of India has invited our attention to

Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act') which is extracted below:

When pregnancies may be terminated by registered medical practitioners.-

(1) Notwithstanding anything contained in the IndianPenal 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 pregnancymay be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does notexceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelveweeks 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 arisk to the life of the pregnant woman or of grave injury to her 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.

(3) In determining whether the continuance of apregnancy would involve such risk of injury to the health as is mentioned in Subsection (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.

A perusal of the above provision reveals, that the provision deals with termination of pregnancies of different durations, and the procedure

contemplated therefor. Section 3 leaves no room for doubt, that it is not permissible to terminate a pregnancy, after 20 weeks. However, Section 5

of the Act lays down exceptions to Section 3. Section 5 of the Act is also reproduced hereunder: 5. Sections 3 and 4 when not to apply.-

(1) The provisions of Section 4, and so much of theprovisions of Sub-section (2) of Section 3 as 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 woman.

(2) Notwithstanding anything contained in theIndian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered

medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may

extend to seven years under that Code, and that Code shall, to this extent, stand modified.

(3) Whoever terminates any pregnancy in a placeother than that mentioned in Section 4, shall be punishable with rigorous imprisonment for a term

which shall not be less than two years but which may extend to seven years.

(4) Any person being owner of a place which is notapproved under Clause (b) of Section 4 shall be punishable with rigorous imprisonment for a

term which shall not be less than two years but which may extend to seven years.

Explanation 1.-For the purposes of this section, the expression ""owner"" in relation to a place means any person who is the administrative head or

otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated

under this Act.

Explanation 2.-For the purposes of this section, so much of the provisions of Clause (d) of Section 2 as relate to the possession, by registered

medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.

A perusal of Section 5 of the Act reveals, that the termination of pregnancy, which is necessary to save the life of the pregnant woman, is

permissible.

In case of Tapasya Umesh Pisal Vs. Union of India, reported in AIR 2017 SC 3931 the Apex Court has permitted termination of pregnancy where

the girl was into her 24 week of pregnancy. Relevant portion of the aforesaid judgement is reproduced below:

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 fetus 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.

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.â€​

In case of Meera Santosh Pal & Others Vs. Union of India and Others, reported in 2017(I) MPWN 44, the Apex Court has permitted the

termination of pregnancy even after 24 weeks. Relevant portion of the aforesaid judgement is reproduced below:

“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.....†The crucial consideration in the present case is whether the right to bodily

integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the

continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as

required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though, the pregnancy is into the 24th week, having regard to the

danger to the life and the certain inability of the fetus to survive extra uterine life, we consider it appropriate to permit the petitioner to terminate

the pregnancy. The overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the

avoidable danger to it. â€​

In recent judgement passed by the constitution bench of the Supreme Court in case of Murugan Nayakkar Vs. Union of India & Others, passedin

W.P(Civil). No.749/2017 the Court has permitted termination of pregnancy of a 13 year old victim of rape and sexual abused, considering the

trauma which she has suffered. Relevant portion of the aforesaid judgement is reproduced below:

“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 Signature Not Verified Digitally

signed by GULSHAN KUMAR 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 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.â€​

In light of the aforesaid judgment, considering the age of the girl, trauma which she has to suffer and the agony she is goingthrough 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. The case of the petitioner is covered under explanation of sub-section (2) of

Section 3 of the Act of 1971,

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 daughter of the petitioner (prosecutrix) as she is present and termination of pregnancy be carried out within 7 days positively

as per the consent given by her parents as required under sub Section (4) of Section 3 of the Medical Termination of Pregnancy Act, 1971 .

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).

With the aforesaid, present writ petition stands allowed. CC as per rules.