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Gauhati High Court · body

2017 DIGILAW 1393 (GAU)

Bhatou Boro v. State of Assam

2017-10-31

HRISHIKESH ROY

body2017
ORDER : 1. Heard Mr. Z. Rahman, the learned, counsel appearing for the petitioner. The respondent Nos. 1 and 2 are represented by Mr. B. Gogoi, the learned standing counsel for the Health Department. The Government advocate, Mr. S.S. Roy appears for the O.C., Khetri RS. (respondent No. 3). The learned counsel Mr. R. Mazumdar has rendered assistance to the court as an amicus curiae. 2. The matter pertains to a minor girl of around 11 years, who is carrying an unwanted pregnancy. The victim was sexually assaulted over a period of time by an elderly neighbour and the family recently learnt of the victim's plight. 3. After lodging the FIR on 15.9.2017 (Annexure 1), leading to registration of the Khetri RS. Case No. 106/2017, under section 376 IPC, read with section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’), the father of the victim approached the Gauhati Medical College & Hospital (GMCH) authorities for termination of pregnancy of the minor but the Doctors did not accede to the said request. Therefore, this petition is filed with prayer for constitution of a Medical Board, to examine the feasibility of terminating the pregnancy, of the minor victim. 4. Following the court's direction issued on 25.10.2017, for constitution of the Medical Board by the Superintendent of the Gauhati Medical College & Hospital (GMCH), the victim visited the Hospital and the Doctors at the GMCH examined her on 28.10.2017. The report under the signature of the Chairman of the Medical Board, produced by Mr. B. Gogoi, reflects that the ultrasound test conducted on 26.10.2017, revealed that the girl was undergoing 26 weeks + 1 day of gestation period. Therefore, the Medical Board opined that under the existing norms, the patient is unfit to undergo medical termination of pregnancy. 5. The above opinion of the Medical Board is with reference to the legal restriction on medical termination of pregnancy, imposed by the Medical Termination of Pregnancy Act, 1971 (‘the MTP Act’). But the Board did not state whether it is medically feasible, to attempt termination of pregnancy of the child victim. In other words, if the Doctors were at liberty to independently decide without being impeded by the MTP Act, whether the procedure for termination of pregnancy can be attempted. But the Board did not state whether it is medically feasible, to attempt termination of pregnancy of the child victim. In other words, if the Doctors were at liberty to independently decide without being impeded by the MTP Act, whether the procedure for termination of pregnancy can be attempted. This aspect is being considered by the court, as the petitioner, who is the father of the victim, has indicated that the victim child does not wish to carry the pregnancy, to its full term. 6. The MTP Act was substantially structured on the Abortion Act of 1967, which was the law in England. The Legislature intended to provide only a qualified right to abortion and the Indian Law does not recognize termination of pregnancy, as a normal recourse, for expecting mother. In Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 , the Supreme Court declared that a woman's right to make reproductive choices is also a dimension of “personal liberty”, under article 21 of the Constitution of India. Reading the provisions of the MTP Act, the court held that in case of pregnant woman, there is also “compelling State interest”, in protecting the life of the prospective child. Hence, it was observed that the MTP Act should be viewed as reasonable restriction placed by law on the exercise of reproductive choices. 7. At this stage, the relevant provisions of the MTP Act should be referred to and they are extracted hereinbelow for quick reference: “3. When Pregnancies may be terminated by registered medical practitioners. ********* (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. 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. ********* (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. ********* 5. Sections 3 and 4 when not to apply. - (1) The provisions of section 4 and so much of the provisions 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 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. (2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.” 8. The perusal of the above provisions of the MTP Act, makes it clear that normally, pregnancy can be terminated only when a medical practitioner is satisfied that continuation of the pregnancy, involve risk to the life of the pregnant woman or a grave injury to her physical or mental health. Legal presumption of grave injury to the mental health to the pregnant woman must be drawn, under the Explanation (I) of section 3(2), which says that if pregnancy is the result of rape, grave injury to the mental health is the logical legal presumption. 9. Legal presumption of grave injury to the mental health to the pregnant woman must be drawn, under the Explanation (I) of section 3(2), which says that if pregnancy is the result of rape, grave injury to the mental health is the logical legal presumption. 9. In the recent judgment in Meera Santosh Pal v. Union of India, (2017) 3 SCC 462 , the Supreme Court, while considering the case of a pregnant lady in the 24th week, reflected on the right of the mother to protect and preserve her own life and allowed her to undergo medical termination of pregnancy, well beyond the 20 weeks bar, stipulated by the MTP Act. 10. In a more recent order, delivered on 6.9.2017, in the case of Murugan Nayakkar v. Union of India WP(C) No. 749/2017, the Supreme Court noted that the termination at a mature stage of pregnancy, will have equal risk for the mother and the child. However, considering the age of the child mother and the trauma, she is suffering as a victim of sexual abuse and keeping in mind the report of the Medical Board, the court permitted termination of pregnancy, for the young victim. 11. In another matter, the Supreme Court, on 7.2.2017, in the case of X v. Union of India, (2017) 3 SCC 458 , after referring the earlier decision in Suchita Srivastava (supra) and Meera Santosh Pal (supra), while noting that continuation of pregnancy involves risk to the life of the petitioner and possible grave injury to her physical or mental health, allowed termination of pregnancy, even after 24 weeks of gestation. 12. The key aspect which needs to be borne in mind in the instant case, filed by the victim's father is that the sexually abused pregnant girl is aged around 11 years only. Naturally, this is an unwanted pregnancy and, therefore, the victim approached the GMCH, for abortion but the same was refused on account of the MTP Act. The last week's opinion given by the Medical Board is with reference to the existing norms under the MTP Act and Rules. But it is obvious that the Medical Board had not taken into account the anguish and trauma of the child victim of sexual abuse and her sufferings in carrying the unwanted pregnancy. The last week's opinion given by the Medical Board is with reference to the existing norms under the MTP Act and Rules. But it is obvious that the Medical Board had not taken into account the anguish and trauma of the child victim of sexual abuse and her sufferings in carrying the unwanted pregnancy. The impact on the mental health of the young victim presumed in law, under Explanation (I) of section 3(2) of the MTP Act, have also not been taken into account, by the Medical Board. 13. Considering the above, while issuing returnable notice, the Medical Board of the GMCH is directed to immediately evaluate the feasibility of termination of pregnancy of the child mother, focusing on her interest, without being shackled by the MTP Act. The continuation of pregnancy for the child mother has certainly compromised her mental health and, therefore, it should be assessed by the Medical Board if the risk of termination of pregnancy is within the acceptable limits, with institutional backup of the GMCH. In that event, with the consent of the father of the minor victim, the appropriate procedure should be attempted in the present case. If termination of pregnancy can reasonably be attempted, the Medical Board is at liberty and should take an appropriate decision, after re-evaluating the patient. If medically feasible, the necessary steps should then be taken, to relieve the child mother of the anguish and trauma, on account of the unwanted pregnancy. It is ordered accordingly. 14. To facilitate the exercise, the victim be produced by the petitioner, on 1.11.2017, at 11:00 a.m. before the Superintendent of the GMCH, to determine the feasibility of the exercise ordered by the court. 15. In the meantime, interim compensation of Rs. 1,00,000 is ordered to be paid to the rape victim's family, under the Assam Victim Compensation Scheme, 2012, which under the notification dated 15.7.2014, has enhanced the quantum of compensation for rape victims. The Registry should immediately forward a copy of this order to the Assam State Legal Services Authority, for doing the needful. 16. A copy of this order be furnished to all the counsel for the parties, in course of the day 17. The notice is made returnable on 15.11.2017.