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Madhya Pradesh High Court · body

2021 DIGILAW 233 (MP)

Narayani Bai Kushwaha v. State of M. P.

2021-02-24

G.S.AHLUWALIA

body2021
ORDER 1. This petition under Article 226 of the Constitution of India has been filed seeking permission for medical termination of pregnancy on the ground that the minor daughter of the petitioner was subjected to rape. Crime No.525/2020 has been registered at Police Station Dharnavada, District Guna and the accused is behind the bars. However, her minor daughter aged about 12 years is pregnant and her pregnancy is detrimental to her health. 2. This Court by order dated 17.2.2021 had directed the CMHO, Guna to constitute a Medical Board including a Gynecologist within a period of two days to submit a report as to whether the termination of pregnancy of the daughter of the petitioner is possible or not. Furthermore, the counsel for the State was also directed to requisition the Case Diary. 3. Today, vide Document No.2272/2021, the State has filed the report of CMHO, Guna along with the opinion of the Medical Board, which is reproduced as under :- izfr] Jheku flfoy ltZu egkns;] ftyk fpfdRlky;] xquk ¼e-iz-½ lnaHkZ%& dzekda@esMhdy cksMZ@2021@xquk fnukda 18-2-21 ¼ In Reference to eq-fp- ,oa Lok- vf/kdkjh i=½ fo"k; %& ekuuh; mPp U;k;ky; ds fjV~ fiVh’ku Øekad 3629@2021 vkns’k fnukad 17-2-2021 ds ikyu esa Fkkuk /kjukonk ds vijk/k Øekad 525@2020 dh ihfMr+k 12 o"khZ; euh"kk dq’kokg iq=h ukjk;.kh ckbZ dq’kokg dh xHkZikr ds lcaèk esa fuf’pr tk¡p fd, tkus ckor~A ekuuh; egkns;] mijksDr lnafHkZr i= ds fo"k; esa euh"kk dq’kokg 12 o"khZ; iq=h ukjk;.kh dq’kokg ds xHkZikr ds laca/k esa vfHker izLrqr gSA 1- miyC/k nLrkostksa o ijh{k.k mijkra 12 o"khZ; euh"kk dq’kokg vfr ukckfyx o vifjiDr yM+dh gS ftls 18 lIrkg 4 fnu dk (USG Report ftldh izfrfyfi layXu gS o ijh{k.k ds vuqlkj½ xHkZ gSA dkuwuh MTP Act. ds vuqlkj 20 lIrkg rd xHkZikr dh vof/k gksrh gSA vr% ;g xHkZikr dh lhek esa vkrk gSA xHkZikr o izlo nksuksa gh bl voLFkk dh yM+dh ds fy;s tfVyrk o xaHkhjrk fy, gks ldrh gSA vr% xHkZikr fd;k tkuk mfpr gksxkA 2- mDr yM+dh ds tuukax vifjiDo gS iwoZ fodflr ugha gS ¼tSls lfoZDl vR;ra NksVh gS½ bl fLFkfr esa xHkZikr procedure high risk o High Morbidity fy, gSA vr% yM+dh dk xHkZikr procedure mPpre laLFkku ¼esfMdy dkWyst½ es Skilled Management o Continious Monitoring esa 20 lIrkg gS ls iwoZ fd;s tkus dk vfHker gSA vr% OPD Ticket o jsQj fd, tkus dh lgefr ds lkFk izfrfyfi layXu gSA 3- bl yM+dh dk dsl ijh{k.k 15 LkIrkg 4 fnu xHkZ ij 28-1-2021 dks L=hjksx fo’ks"kK dks bl gsrq lacaf/kr procedure Medical College esa djk;s tkus ds fy, Refer dk vfHker fn;k tk pqdk gSA ijh{k.k vfHker dh izfrfyfi layXu gSA layXu izfrfyfi %& 1- ;w- ,l-th fjiksVZ 2- vks-ih-Mh- fVfdV o jsQj daluZV 3- iwoZ ijh{k.k vfHker i= fnukad 18-2-2021 gLrk{kj gLrk{kj gLrk{kj MkW- 'kkjnk Hkksyk MkW- vkjk/kuk fot;oxhZ; MkW- m"kk pkSjfl;k fu’psruk fo’ks"kKk L=hjksx fo’ks"kK L=h jksx fo’ks"kK ft-fp- xquk ft-fp-xquk ft-fp- xquk 4. It is submitted by the Counsel for the State that the prosecutrix is minor, aged about 12 years and she went missing on 10.10.2020 and was recovered on 12.1.2021 and as per the school certificate, her date of birth is 25.7.2006. 5. Considered the submissions regarding Medical Termination of Pregnancy. 6. The relevant statutory provisions, i.e. sections 3 and 5 (1) of the Medical Termination of Pregnancy Act 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 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 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. 3as 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.” 7. This Court is dealing with the case of a child aged about 12 years, who is carrying a child of a person, against whom the allegations of rape have been made and a criminal case also been registered. This Court is dealing with the case of a child aged about 12 years, who is carrying a child of a person, against whom the allegations of rape have been made and a criminal case also been registered. Not only this, the child will also have social stigma throughout her 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 minor girl. 8. The Supreme Court in the case of Murugan Nayakkar v. Union of India & Ors. in Writ Petition (Civil) No.749/2017 by order dated 6.9.2017 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 GULSHANKUMAR that the termination of pregnancy should be carried out. That ARORA Date: 2017.9.6 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, learned 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. 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.” 9. 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 submitted by Medical Board, District Hospital, Guna, this Court is of the opinion that the prayer made by the petitioner deserves to be allowed and is accordingly allowed. 10.It is submitted by the Counsel for the petitioner that the daughter of the petitioner is already hospitalized in JA Group of Hospitals, Gwalior. 11.In view of the opinion given by the Medical Board regarding the high risk and high morbidity, the respondents are directed to medically terminate the pregnancy of the daughter of the petitioner in any institute of Super-specialty. Since high risk and high morbidity is involved, therefore, the petitioner is also directed to give an undertaking that in case of any medical complication he would not allege and take any action against the doctors involved in the termination process. Accordingly, the petitioner is directed to appear before the 12. CMHO, Guna on 25th February, 2021 for further procedure for medical termination of pregnancy of the daughter of the petitioner. The CMHO, Guna shall decide that in which hospital, the medical termination of pregnancy of the daughter of the petitioner would be secured and accordingly, she would be shifted to the said hospital. 13. Looking to the urgency, it is expected that the pregnancy of the daughter of the petitioner shall be terminated within a period of one week from today. 14. Since a criminal case has already been registered against the accused, therefore, the doctors are directed to preserve the DNA of fetus. 13. Looking to the urgency, it is expected that the pregnancy of the daughter of the petitioner shall be terminated within a period of one week from today. 14. Since a criminal case has already been registered against the accused, therefore, the doctors are directed to preserve the DNA of fetus. 15.It is needless to mention that the Head of the Department of Gynecologist, Head of the Department of Anesthesia and all other Specialists will remain present at the time when termination of pregnancy will be carried out, as the girl is of tender age and as there may be a threat to the life of the girl also. Not only this, after the termination of pregnancy is carried out, the State of Madhya Pradesh shall ensure postoperative care of the girl (prosecutrix). 16.The High Court of Bombay in the case of Shaikh Ayesha Khatoon v. Union of India and Others reported in 2018 SCC OnLine Bom 11 has held as under :- ‘’28. It is clarified at this stage that the petitioner has been sensitized 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.” 17.In light of the aforesaid judgment, though this Court has already granted permission to carry out termination of pregnancy, but still it is directed that the Doctors who will be 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 the Department of Anesthesia are not present, senior Doctors having experience in the field shall carry out the termination of pregnancy. 18.In view of the aforesaid, this petition is finally disposed of.