Mukesh Patidar vs State Of M. P. And Others

The petitioner before this Court has filed present petition for issuance of an appropriate writ, order or direction directing the respondents / State to

carry out termination of pregnancy in respect of petitioner's minor daughter, who is aged about 12 years. The date of birth of the girl in question is

05/01/2006 and she is a rape victim and a crime has been registered at Crime No.30/2018 at Police Station Kalukheda, Distt. Ratlam for offence

under Section 376 of the Indian Penal Code, 1860 read with Section 5(j)(ii) and 6 of the Protection of Children from Sexual Offences Act, 2012.

Because of the unfortunate incident, the girl is carrying a child in her womb and the age of the foetus is 29 weeks.

02- This Court in light of the prayer made by the father of the girl as well as by the girl has directed the learned government advocate to conduct a

medical examination by Medical Board of M.Y. Hospital (which is a Government Hospital). It was also directed that Medical Board will include a

Senior Gynecologist.

03- The petitioner's daughter was examined on 19/04/2018 and the age of the foetus as per the Medical Board is 29 weeks and it has been observed

by the Doctors that abortion can be carried out with the permission of the High Court and at the same time it has been observed that it can cause of

risk to the health of the patient.

04- The report submitted by the Office of the Civil Surgeon, Ratlam dated 12/04/2018 reads as under:-

**dk;kZy; flfoy ltZu lg eq[; vLirky v/kh{kd jryke dzekad@izlqrh foHkkx@2018@011 jryke] fnukad 12-04-2018

izfr]

,p- ok;- esgrk] 'kkldh; vf/koDrk] dk;kZy; egkf/koDrk e- iz- mPp U;k;ky;]

[k.MihB bUnkSj e- iz- A

fo""k;%&fjV fiVh'ku uEcj 7701@2018 eqds'k firk 'kksHkkjke ikVhnkj fo:) e- iz- 'kklu A

lanHkZ%&dk;kZy; egkf/koDrk e- iz- mPp Up;k;ky; [k.MihB bUnkSj fnukad 10-04-2018 A

mi;ksDr lanfHkZr fuosnu gS fd ;kfpdkdrkZ dh iq=h dh fpfdRldh; ijh{kk fnukad 12-04-2018 dks 'kke 04%45 cts ftyk fpfdRlky; ¼,e-lh-,p-dUsnz½]

jryke esa ofj""B L=h jksx fo'ks""kK ,oa efgyk fpfdRlk vf/kdkjh ds }kjk fd;k x;k A ijh{k.k esa fuEukuqlkj fu""d""kZ fy;s x;s%&

1- ijh{k.k esa 30 lIrkg 5 fnu ¼+ - 3 lIrkg½ dk xHkZ ik;k x;kA

2- bl vof/k dh xHkkZoLFkk esa xHkZikr ugha fd;k tk ldrk gS] D;ksafd blls xHkZorh ds thou dks [krjk gks ldrk gS A

3- egkjktk ;'koar jko fpfdRlky; bUnkSj ds L=h jksx foHkkx dh fo'ks""kKksa }kjk ijh{k.k i'pkr~ fnukad 20-03-2018 dks mDr xHkZ dks vkxs tkjh j[ks

tkus dh lykg nh xbZ gS A vr% pkgh xbZ lgk;rk ,oa mipkj gsrw ,oa fo""ksKrk lykg gsrq ,e- ok;- ,p- gkLihVy bankSj Hkstk tk ldrk gS A

Jheku~ dh vkSj lwpukFkZ izsf""kr A layXu%& 26 i`""B 1

gLrk@&Â gLrk@& MkW- lksuy vksgjh MkWa- eerk 'kekZ

efgyk fpfdRlk vf/kdkjh

ftyk fpfdRlky; jryke L=h jksx fo'ks""kK ¼izHkkjh izLkqrh foHkkx½

ftyk fpfdRlky; jryke

flfoy ltZu lg eq[; vLirky v/kh{kd ftyk jryke

 dzekad@izlqrh foHkkx@2018@12&13 jryke@fnukad 12-

04-2018

izfrfyfi%&

1- dysDVj ftyk jryke A

2- eq[; fpfdRlk ,oa LokLF; vf/kdkjh ftyk jryke A

gLrk@&

MkW- lksuy vksgjh efgyk fpfdRlk vf/kdkjh ftyk fpfdRlky; jryke gLrk@&

MkWa- eerk 'kekZ

L=h jksx fo'ks""kK ¼izHkkjh izLkqrh foHkkx½

ftyk fpfdRlky; jryke

flfoy ltZu lg eq[; vLirky v/kh{kd ftyk jrykeâ€​

05- Subsequent report submitted by the MGM Medical College, Indore and M. Y. Hospital, Indore reads as under:-

**L=hjksx ,oa izlqrh foHkkx

 dzekad 916@L=hjksx@18 bUnkSj] fnukad 20@4@18

izfr]

v/kh{kd egksn;]

e- ;- fpfdRlky;]

bUnkSj fo""k;%&WP No- 7701/2018, Mukesh Patidar Vs State & Others lanHkZ%&vkidk i= dz- 6367@fn- 19-04-18 A egksn;]

mijksDr fo""k; esa crk;k tkrk gS fd ejht jkuw firk eqds'k ikVhnkj] mez 12 o""kZ ¼vk/kkj dkMZ ds vuqlkj½ ,oa 16 o""kZ ¼,MoksdsV czts'k 'kekZ ds

i=kuqlkj½ MLC no.2034 fnukad 20-04-18 dks lqcg 9 cts L=h jksx ,oa izlwfr foHkkx dh vksihMh esa esfMdy ihj{k.k gsrw mifLFkr gqbZ aA

xfBr desVh }kjk mDr ejht dk ijh{k.k fd;k x;k gS] desVh ds le{k fuEu fcUnq vk, gS A

1- lksuksxzkQh dh tkWap djus ij irk pyk dh ejht dks 29 lIrkg 1 fnu + - 2 g¶rs dk xHkZ gS A

2- MTP Act ds rgr dsoy 20 g¶rs (20 Week) rd dk gh xHkZikr fd;k tk ldrk gSA

3- 20 g¶rs ls T;knk dk xHkZikr] gkbZdksVZ dh vuqefr ls gh laHko gS A 20 g¶rs ls T;knk dk xHkZikr djus esa ejht dks ijs'kkuh ,oa gkfu gks ldrh

gS A

/kU;okn~ A

MkW0 eksfudk oekZ lgk;d izk/;kid

L=hjksx ,oa izlfwr foHkkx e0;0fpfdRlky; bUnkSj MkWa0 iwue ekFkqj lg-izk/;kid

L=hjksx ,oa izlwfr foHkkx e0;0fpfdRlky; bUnkSj MkWa0fuys'k nyky izk/;kid

L=hjksx ,oa izlfwr foHkkx

e0;0fpfdRlky; bUnkSjâ€​

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.

(3) In determining whether the continuance of pregnancywould involve such risk of injury to the health as is mentioned in subsection (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.â€​

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 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€​

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. 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:

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.

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

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].

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:

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 people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept

the nonrebuttable 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)

A statute must be interpreted having regard to the purportand 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.

The two principles of construction - one relating to casusomissus 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).

As has been observed by the Supreme Court in thematter 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:

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 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...

Generally speaking, Statutes are classified in fourfoldmanner. 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.

On analysis of the judgments and the narrations, asrecorded 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.

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 subsection (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) & (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.

The Ministry of Health and Family Welfare, Governmentof 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.

Considering the above proposed amendment, accordingto 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.

The petitioner has restricted the claim in the petition inrespect 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.

For the reasons recorded above, the Writ Petition isallowed. 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.

The Counsel appearing for the petitioner states, oninstructions, that the petitioner will bear the medical expenses of the procedure of medical

termination of pregnancy at a medical facility of her choice.

It is clarified at this stage that the petitioner has beensensitized 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.â€​

13- In light of the aforesaid judgment, though this Court has already granted permission to carry out termination of 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.

14- With the aforesaid, writ petition stands allowed.

15- Certified copy be delivered to the learned counsel, today itself by 01:30 PM.