Sagun Devi Vanshkar vs State Of Madhya Pradesh And Ors.

Heard.

The petitioners have approached this Court seeking permission/direction for termination of pregnancy of minor daughter of petitioner No.1.

Petitioner No1's daughter is a rape victim. Because of the unfortunate incident, she became pregnant and as on 17.10.2019, the life of foetus is 27 weeks 2 days. Since the life of fetus has exceeded 12 weeks, therefore, in view of 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 petitioners have approached this Court by way of this writ petition as the victim does not want to continue with the pregnancy.

By order dated 17.10.2019, this Court has directed the Govt. Advocate to get the victim examined by a team of doctors and submit the medical report as to whether the pregnancy can be safely terminated at this stage and also by a Psychiatrist to assess her physical and mental condition.

The victim was examined by the team of three Doctors from the Department of Obstetrics and Gynecology, Medical College Hospital, Jabalpur, who have opined that the victim is not fit to undergo the abortion. As per her ultrasound report, the victim is antenatal with pregnancy of 27 weeks 2 days as on 17.10.2019 and the above gestational age is beyond the gestational age recommended by the MTP Act.

The victim was also examined by Dr. Atul Agrawal, Professor and Head of the Department of Psychiatry, G.R.M.C. Gwalior, who has opined that victim is currently having "Borderline Intellectual Deficit with mild depressive symptoms" at present (clinically). He has further opined that during interview, she did not show any gross psychotic symptoms or behavioral abnormalities and shows concerns regarding her pregnancy and not happy with the status of the pregnancy.

The learned counsel for the petitioners submits that though the Medical Board is of the opinion that the pregnancy should not be terminated but it has not given its opinion regarding the impact of bearing a child on a 11 years old girl, threat to her life and consequences of bearing the child of a rapist. He has placed reliance on the order dated 19.07.2019, passed in W.A. 1161/2019, wherein under similar situation, the Division Bench has directed for termination of pregnancy of a 13 years old girl.

The Court has observed as under :-

"In view of the facts and circumstances of the case and as we have held that the case of the appellant's daughter falls within the provisions of Section-5 of the Act in view of the medical report placed before us, it is directed that the respondents shall undertake steps to immediately terminate the pregnancy of the appellant's daughter in a Government hospital/college under the supervision of the experts. The appellant's daughter would also be provided all the necessary facilities and care in the Government Medical College/Hospital. As it would be the duty of the respondent authorities to provide the best and safest medical assistant to the appellant's daughter, we leave the choice of College or Hospital to the respondent authorities for undertaking the exercise of termination of pregnancy. The respondents are also directed to ensure that the DNA sample of the foetus and the consequent reports thereof shall be duly preserved in accordance with the provisions of law so that the same would be legally admissible and available for future reference in the criminal case that has been filed by the appellant and her daughter.

We make it clear that the aforesaid directions are issued on the clear and unequivocal undertaking and statement made by the learned counsel for the appellant, on personal instructions of the appellant, that they are willing to take full responsibility and risk for undertaking medical termination of pregnancy and that they expressly indemnify and exonerate the respondent authorities, doctors and all others involved, of any responsibility or liability in respect of the outcome of the same. The learned counsel for the appellant, on instructions from the appellant, also states that the appellant and her daughter fully understand and are mentally prepared to accept not just the responsibility for termination of pregnancy of the appellant's daughter but the risk and result thereof as well."

In the instant case, apart from the report of the team of Doctors that there is a risk to health and life of the victim, it is also undisputed that the victim is only 11 years of age and the trauma that she would face as a consequence of child bearing and raising would be tremendous.

It is also apparent that the termination of the pregnancy as well as continuation of the same carries risk to the health of the 11 years old victim, who herself is a child. Under the circumstances, it is directed that the respondents shall undertake steps to immediately terminate the pregnancy of victim/daughter of petitioner No.1 in a government hospital/college under the supervision of the experts. The victims would also be provided all the necessary facilities and care in the government medical college/hospital. It would be the duty of the respondent authorities to provide the best and safest medical assistance to the victim, for undertaking the exercise of termination of pregnancy. The respondents are also directed to ensure that the DNA sample of the foetus and the consequent reports thereof shall be duly preserved in accordance with the provisions of law so that the same would be legally admissible and available for future reference in the criminal case that has been filed by the Petitioner No.1 and her daughter.

It is made clear that the aforesaid directions are issued on the clear and unequivocal undertaking and statement made by the learned counsel for the petitioners, on personal instructions of the petitioner No.1 and her daughter that they are willing to take full and risk for undertaking medical termination of pregnancy and that they expressly indemnify and exonerate the respondent authorities, doctors and all others involved, of any responsibility or liability in respect of the outcome of the same. The learned counsel for the petitioners, on instructions from the petitioners, also states that the petitioner No.1 and her daughter fully understand and are mentally prepared to accept not just the responsibility for termination of pregnancy of the petitioner No.1's daughter but the risk to her health and life and the result thereof as well.

Looking to the age of the foetus and the aforesaid undertaking given before this Court, the aforesaid exercise of termination of pregnancy may be taken up by the respondent authorities with active and positive assistance by the petitioner No.1 and her daughter as early as possible. For the aforesaid purpose the petitioner No.1 shall immediately contact and file an affidavit in this regard before the authorities concerned. The learned Govt. Advocate is also directed to inform the authorities and for that purpose a free copy of this order be given to him.

With the aforesaid direction, the petition filed by the petitioners, stands disposed of.

Certified copy today.