Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 750 (MP)

Hansa Gurjar v. State of M. P.

2020-07-30

S.C.SHARMA

body2020
ORDER 1. The petitioner before this Court, who are parents of a minor girl. Have filed present petition for termination of pregnancy in respect of their minor daughter. It has been stated that she was subjected to rape through her Facebook friend and on account of forceful intercourse the pregnancy has taken place. It has beenstated that pregnancy is causing great trauma to their minor daughter and if the pregnancy is allowed to continue it is going to gravely endanger the women's physical and mental health 2. This Court, as the girl is minor, has subjected the girl to medical examination and a report has been received through Joint Director-cum-Superintendent, M. Y. Hospital, Indore. The Board of Directors have opined that the age of foetus is about 25 weeks and there is possibility that in case pregnancy is terminated, the child can be a living child born while terminating the pregnancy. A prayer has been made by the Medical Board that in case girl deliver a normal child, the Pediatric Department be directed to take care of the child and thereafter, the State be directed to take care of the child. As the petitioner nor the girl in question wants the child, the pregnancy be terminated. 3. The statutory law governing the field i.e. Medical Termination of Pregnancy Act, 1971 does provide for termination of pregnancy. Section 3 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 theprovisions of this Act. 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 theprovisions 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 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 I.—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 II.—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 a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably 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. (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.” The Hon'ble Supreme Court in the similar circumstances in the case of Murugan Nayakkar v. Union of India and Others [Writ Petition (C) No.749 of 2017] has allowed the termination of pregnancy. In the aforesaid case, the pregnancy was 32 weeks old. 4. In the considered opinion of this Court, as stated by the learned Deputy Advocate General, the petitioner is a rape victim and also keeping in view the fact that continuance of pregnancy is going to gravely endanger the women's physical and mental health, permission is granted for termination of pregnancy, however, in case a living child is born as inform by the Medical Board, the Pediatric Department of the M.Y. Hospital shall take care of the child and shall later on handover the child to appropriate authority for giving the child in adoption. 5. The petitioner shall appear before the Joint Director-cum- Superintendent, M. Y. Hospital, Indore tomorrow i.e. on 31.7.2020. Termination shall be carried out by the senior doctors and specialists on the subject. The entire expenditure in respect of termination of pregnancy and in case the child is born a live, expenditure in respect of the child shall be looked after by the State of Madhya Pradesh through Collector, Indore. With the aforesaid, writ petition stands disposed of. Neeraj Gaur for petitioners; Ms. Archana Kher, Deputy Advocate General for respondent/State.