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2019 DIGILAW 329 (RAJ)

Nisha Vaishnav v. State of Rajasthan

2019-01-29

ASHOK KUMAR GAUR

body2019
JUDGMENT : ASHOK KUMAR GAUR, J. The instant writ petition has been filed by the petitioner for seeking a direction of this Court to conduct medical termination of pregnancy of the petitioner in a recognized hospital with qualified Doctors. The petitioner has also prayed for direction to provide necessary medical care for pre & post termination of pregnancy. 2. This Court on 24th January, 2019 after considering the urgency of the matter had directed Mr. Pankaj Sharma, Additional Advocate General to accept notices and further order was passed to constitute a medical board of five Doctors. 3. On directions being given by this Court, the Principal, Medical College, Udaipur constituted a medical board of Doctors to examine the petitioner and further it was to find as whether the termination of pregnancy of the petitioner can be done or not. This Court had sought report of the Board through the learned Additional Advocate General. 4. Mr. Pankaj Sharma, Additional Advocate General today has produced the report/opinion of the Board dated 25.01.2019 in a sealed cover and the same is taken on record. 5. This Court finds that a team of five Doctors, after examining health of the petitioner, found that as per the existing law, medical termination of pregnancy is not permissible beyond 20 weeks of gestation, even in the case of rape and USG report on 25.01.2019 shows the gestational age of the foetus 22 weeks. The Board has further opined that the general condition of the petitioner is normal and in case this Court permits termination of pregnancy at 22 weeks of gestation (beyond the MTP Act), the same can be done at a tertiary hospital with the consent of petitioner's parents as early as possible. 6. Learned counsel for the petitioner submitted that after receipt of report, it is necessary that required permission may be granted by this Court for terminating pregnancy of the petitioner as she is a rape victim. 7. Learned counsel for the petitioner has placed reliance on a judgment dated 15.10.2017 passed by the High Court of Jharkhand in Writ Petition (Criminal) No. 399/2017 wherein the High Court of Jharkhand has permitted the termination of pregnancy and further the fetus of the person concerned was ordered to be preserved for the purpose of conducting DNA Test. 8. 7. Learned counsel for the petitioner has placed reliance on a judgment dated 15.10.2017 passed by the High Court of Jharkhand in Writ Petition (Criminal) No. 399/2017 wherein the High Court of Jharkhand has permitted the termination of pregnancy and further the fetus of the person concerned was ordered to be preserved for the purpose of conducting DNA Test. 8. Learned counsel has further placed reliance on a judgment passed by the Apex Court in the case of Meera Santosh Pal and Ors v. Union of India and Ors [Writ Petition (Civil) No.17/2017] dated 16.01.2017. Learned counsel submitted that the Apex Court considered the necessity of issuing directions to undergo medical termination of pregnancy. 9. Learned counsel further placed reliance on a judgment of the Apex Court in the case of Ms. Chanchala Kumar v. Union of India [Writ Petition (Civil) No. 871/2017] dated 21st September, 2017. 10. Mr. Pankaj Sharma, Additional Advocate General submitted that as per the legal provisions contained in the Medical Termination of Pregnancy Act, 1971 (in short ‘the Act of 1971’), pregnancy cannot be terminated where length of pregnancy exceeds 20 weeks. Learned counsel submitted that as per sub-section (2) of Section 3 of the Act of 1971, the registered medical practitioner can only perform termination of the pregnancy in certain contingencies and as per the facts which have come in the present case, the petitioner is pregnant for more than 20 weeks. 11. Learned counsel further submitted that in the instant case, the present petitioner has leveled allegation of rape against certain persons and as such the pregnancy is alleged to have been caused by rape and the anguish caused by such pregnancy has been presumed to be a grave injury to the mental health of a pregnant woman. The relevant provision of the Act of 1971 is reproduced hereunder:— “3. When pregnancies may be terminated by registered medical practitioners.- (1) xx.xxxxx (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.” 12. This Court finds that prior to constitution of Medical Board under orders of this Court, the petitioner was examined by a team of three Doctors and they had also opined vide their report dated 19.01.2019 that as per the MTP Act, abortion of petitioner was not possible and the general condition of the petitioner was found to be normal and the said Board further observed that as the petitioner was under 18 years, full term pregnancy and delivery may be dangerous for her own life. 13. This Court has looked into the earlier report, placed for perusal of this Court by Mr. Pankaj Sharma and Mr. K.S. Rajpurohit, Addl. Advocate General and the report which has been produced in pursuance of directions given by this Court by a team of Doctors who examined the petitioner on 25.01.2019. 14. This Court finds that the Act of 1971 lays down certain restrictions for termination of pregnancy, however, the Apex Court as well as other High Courts have given directions in respect of rape victims permitting the termination of pregnancy. 15. This Court following the law laid down by the Apex Court in the cases of Meera Santosh Pal & Ms. Chanchala Kumari (supra), deems it proper that a suitable direction is required to be given permitting termination of pregnancy of the petitioner even if the fetus is of 22 weeks, as per the report given by the Medical Board dated 25.01.2019. Chanchala Kumari (supra), deems it proper that a suitable direction is required to be given permitting termination of pregnancy of the petitioner even if the fetus is of 22 weeks, as per the report given by the Medical Board dated 25.01.2019. This Court finds that the Board has found the general physical condition of the petitioner to be normal and further the termination of the pregnancy can be done at tertiary hospital with the consent of petitioner's parents as early as possible. 16. This Court finds that the rape victim not only undergoes the mental torture but also suffers physically even to the extent of losing her own life due to the unfortunate incident which takes place beyond the control of rape victim. 17. Learned Additional Advocate General, on instructions, submitted that as per report, the termination of pregnancy of petitioner can be performed at RNT Medical College and attached College-Maharana Bhupal Government Hospital, Udaipur provided proper consent of the parents of petitioner is given for such a procedure. 18. This Court deems it proper to permit the termination of pregnancy of the petitioner by a team of expert Doctors at RNT Medical College and attached College-Maharana Bhupal Government Hospital, Udaipur as early as possible after obtaining necessary consent of the parents of petitioner. 19. This Court further deems it proper to direct the authorities the Medical College to preserve the fetus of petitioner for the purpose of DNA Test, in case any need arises in future. This Court further deems it proper to give urgent directions in the present case as any delay would be very fatal to the petitioner. The petitioner is permitted to go to RNT Medical College, Udaipur as early as possible i.e. either today or tomorrow and immediately after reporting of the petitioner in the hospital, the hospital authorities are directed to take immediate steps to perform the necessary procedure. The present writ petition is disposed of with aforesaid direction.