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Madhya Pradesh High Court · body

2021 DIGILAW 469 (MP)

X v. State of M. P.

2021-05-13

VIVEK RUSIA

body2021
ORDER 1. The petitioner has filed the present petition seeking termination of pregnancy. Accordingly to her he has become pregnant due to commission of rape at that time she was minor. Since, she is victim of rape, therefore, she is not willing to continue the pregnancy and hence, she is before this Court seeking direction to the respondents to terminate her pregnancy. 2. Vide order dated 8.5.2021 this Court has directed for medical examination of the petitioner and in compliance of the said order she was examined on 12.5.2021 . Today learned Panel Lawyer has submitted the report in Court and as per the opinion given by the team of doctors the pregnancy of the petitioner can be terminated safely and there would be no harm to her. The report is reproduced below : To, The CMHO, District Mandsaur, Subject: regarding clinical examination of Ms. X, daughter of Ram Vilas Resident of Indira Colony, Mandsaur for medical termination of pregnancy. Reference: WP No.9279/20212 Date 8.5.2021. Sir, We Dr.P.Rathore (Gynecologist), Dr.Mena Verma (MO) Dr.Sunil Kumawat (PGMO) examined this patient identification mark over forehead and found that her vitals pulse 90/min, BP 120/80, spo2 98% are normal. Her investigation HIV-NR-VDRL-NR hemoglobin 10.3%, UPT Positive. P/A soft P/V os closed Uterus 12 week size Sir, MTP can be done safely at the level of District Hospital. Dr.Sunil Kumawat Medical Officer Jila Chikitsalaya, Mandsaur Dr.P.Rathore (Gynecologist) Jila Chikitsalaya Mandsaur 3. Learned counsel for the petitioner submits that in view of the explanation of sub-section (2) of section 3 the termination of pregnancy is permissible. 4. The apex Court in case of Ms. X Vs. Union of India & Others, reported in AIR 2016 SCC 3525 has held that section 5 of the Act lays down the exception to section 3 if as per opinion of less than 2 registered Medical Practitioner gives the opinion of in good faith in respect of termination of pregnancy to save the life of pregnant women. By placing reliance over the aforesaid section the apex Court has granted liberty to the petitioner to terminate her pregnancy. Relevant portion of the aforesaid judgement is reproduced below : "5. The question that arises for our consideration is, whether it would be justified and legal, to terminate the pregnancy of the petitioner, which the Medical Report itself shows, as of 24 weeks duration? Relevant portion of the aforesaid judgement is reproduced below : "5. The question that arises for our consideration is, whether it would be justified and legal, to terminate the pregnancy of the petitioner, which the Medical Report itself shows, as of 24 weeks duration? Learned Attorney General representing the Union of India has invited our attention to section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act') which is extracted below : 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 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 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 a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment. (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 to 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 [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. A perusal of the above provision reveals, that the provision deals with termination of pregnancies of different durations, and the procedure contemplated therefor. Section 3 leaves no room for doubt, that it is not permissible to terminate a pregnancy, after 20 weeks. However, section 5 of the Act lays down exceptions to section 3. section 5 of the Act is also reproduced hereunder: 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 a registered medical practitioner in a 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 pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified. (3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years. (4) Any person being owner of a place which is not approved under Clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years. (4) Any person being owner of a place which is not approved under Clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years. Explanation 1.-For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act. Explanation 2.-For the purposes of this section, so much of the provisions of Clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply. A perusal of section 5 of the Act reveals, that the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible." 5. In light of the aforesaid verdict, considering the age of the petitioner, and the agony which she is going through at present and also keeping in view the report of Medical Board the case of the petitioner is covered under explanation of sub-section (2) of section 3 of the Act of 1971, the writ petition is allowed . Since in this FIR has been registered by the petitioner against the accused hence termination of pregnancy be carried out at Government District Hospital at Mandsour under the supervision of Chief Medical & Health Officer . 6. If the petitioner is minor then at the time of termination of pregnancy, the consent of her father and mother be also taken. 7. The qualified doctors are directed to carry out termination of pregnancy of the petitioner if her health condition permits to do so. The Doctors specialized in the field are the best experts to take decision about health condition of girl before and after termination of pregnancy. This Court is only giving permission for termination of pregnancy in view of judgement passed by the apex Court in cases (supra), but subject to the health condition and consent under the Act. The Doctors specialized in the field are the best experts to take decision about health condition of girl before and after termination of pregnancy. This Court is only giving permission for termination of pregnancy in view of judgement passed by the apex Court in cases (supra), but subject to the health condition and consent under the Act. The Chief Medical & Health Officer Mandsour is directed to admit the petitioner and get her examined the health condition before termination of pregnancy positively as per the consent given by her or parents as required under sub-section (4) of section 3 of the Medical Termination of Pregnancy Act, 1971 & health condition. 8. It is needless to mention that the Gynecologist , Anesthetic and all other specialist doctors shall remain present at the time of termination of pregnancy looking to the tender age, threat of life of the petitioner and covid -19 guidelines issued by the Government be followed. 9. Learned Panel Lawyer submits that since the petitioner is a rape victim, therefore, police is required to preserve the fetus of the petitioner for the purpose of matching DNA. 10.The I.O is directed to make a request in advance in this regard to the Chief Medical & Health Officer who shall do the needful. With the aforesaid, present writ petition stands allowed.