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2021 DIGILAW 99 (MP)

Victim A v. State of Madhya Pradesh

2021-02-03

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:- "(I) Issue a writ in the like nature commanding the concerned respondent for the termination of pregnancy of the petitioner to secure life and future of the petitioner. (II) To grant any other relief deemed proper to the facts and circumstances of the case." 2. The facts necessary for disposal of the present petition in short are that the petitioner has filed this petition on the allegation that she came to Jabalpur on 1.6.2020 for training as Community Health Officer and during verification of the documents, she met with accused Sonu Chouraya, R/o. District Chhindwara, who helped her out in verification of the documents. Thereafter, they became friends and exchanged their mobile numbers. On various occasions, accused Sonu Chouraya expressed his feelings that he is in love with her and wants to marry her. When the petitioner informed that she belonged to scheduled caste then accused Sonu Chouraya expressed that he is ready for inter-caste marriage. On 26.6.2020, on the date of the birth of the petitioner, accused Sonu Chouraya proposed her and inspite of her reluctance, he had physical relations with her. It was also expressed by Sonu Chouraya that from today she is his wife and on the pretext of marriage, Sonu Chouraya had physical relations with her. On 25.11.2020 at about 10:00 p.m., Sonu Chouraya informed that tomorrow he would talk to his parents about the marriage and also had physical relations with her on the said date. On 26.11.2020, Sonu Chouraya went back to his house and now she has come to know that she is pregnant. When the fact of pregnancy was informed to Sonu Chouraya then he refused to marry her on the ground that he cannot marry her without permission of his parents and also insisted that now the prosecutrix must look after her and should not rely on him. On the basis of the report made by the petitioner, the police has registered Crime No. 452/2020 at Police Station Omti, District Jabalpur for the offence under Sections 376, 376(2)(n), 417 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. On the basis of the report made by the petitioner, the police has registered Crime No. 452/2020 at Police Station Omti, District Jabalpur for the offence under Sections 376, 376(2)(n), 417 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. It is submitted by learned counsel for the petitioner that the petitioner was infact raped by Sonu Chouraya by misconception of fact that he would marry her and, therefore, the consent of the petitioner is no consent as per the provision of Section 90 of the Indian Penal Code. It is further submitted that now the petitioner has got the appointment and in case if she is compelled to deliver a child then it would amount to mental trauma and agony to the petitioner as well as it would be impossible for the petitioner to upbring the child. 4. This Court by order dated 28.1.2021 had directed the respondent No. 4 to constitute a Medical Board for medical examination of the petitioner as well as to produce the report of the Medical Board whether termination of the pregnancy may cause any medical complication or not and whether at this stage the termination of pregnancy is possible or not. 5. Learned Panel Lawyer for the State has produced the medial report prepared by the Medical Board in a sealed cover, which reads as under:- The CMO Jabalpur Sub:- Opinion regarding termination of pregnancy of victim-A (the name of the victim is not being mentioned) D/o Umakant, Age 28 years Case No. WP-1008-2021 Sir, In reference to your letter No. 1175/Legal/2021 dated 29.1.2021, we have examined the Victim-A, D/o Umakant, Age 28 years and findings are as follows. She is having amenorrhea of 3 months. LMP=4.1.2020. She is unmarried. She is k/c/o Hypothyroidism: 10 years taking Tablet Thyroxin 75 mp. 1 OD On examination GC – fair T-afebrile Pollor-+ Edema-Nil Ictrus-Nil P= 82/min BP=110/70 mhg CVS-NAD RS-chest clean P/A soft P/V- ut A/V 12 wk size B/L formix free No significant surgical or medical illness found. She is having amenorrhea of 3 months. LMP=4.1.2020. She is unmarried. She is k/c/o Hypothyroidism: 10 years taking Tablet Thyroxin 75 mp. 1 OD On examination GC – fair T-afebrile Pollor-+ Edema-Nil Ictrus-Nil P= 82/min BP=110/70 mhg CVS-NAD RS-chest clean P/A soft P/V- ut A/V 12 wk size B/L formix free No significant surgical or medical illness found. Investigations UPT positive BT=1:30 Pelvic USG:-2.2.2021 CBC HB+8.4 gm% CT+4.30 min MGA-13 wk+/-2/3 days ESR 45mm/hr RBS 79 mg/dL Blood Urea 24 mg/dL Serum Creatinine TLC=8300/wmm Cardiac activity-+ Fetal weight-75 gm Placenta- Anterior Amniotic fluid-Adequate SGOT 17 U/L SGPT 32 U/L VDRL NR HIV NR HBSAG NR Blood Group O+ve OPINION:- We have examined the above case and found that she is having pregnancy of 13 week 3 days by USG. She is found to be medically fit, so pregnancy can be terminated according to MTP Act keeping in view of common complications of Abortion Dr. R.K. Khare Dr. Bhawna Mishra Dr. Veena Jain (Superintendent) (Gynecologist) (Gynecologist) 6. Considered the submissions made by learned counsel for the parties as well as the medical report submitted by the Medical Board. 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. 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 Section 4 and so much of the provisions of sub suction (2) of Section 3 as 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 girl aged about 28 years, who is alleged to have given her consent for physical relationship with Sonu Chouraya on the assurance given by him for marriage. This Court is dealing with the case of a girl aged about 28 years, who is alleged to have given her consent for physical relationship with Sonu Chouraya on the assurance given by him for marriage. It is the case of the petitioner that now Sonu Chouraya has refused to marry her and accordingly the Crime No. 452/2020 at Police Station Omti, District Jabalpur for the offence under Sections 376, 376(2)(n), 417 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been registered against him. Under these circumstances, if the petitioner is compelled to deliver a child then the child will also have social stigma throughout the life and the petitioner will also be compelled to undergo a mental trauma and agony. 8. Now the question for consideration is as to whether a girl has liberty of refusing to give birth to a child or under every circumstance, she is under obligation to give birth to a child. The Hon'ble Supreme Court in the case of X & Others Versus Union of India & Others reported in (2017) 3 SCC 458 has held as under:- "8. We have already vide order dated 16.1.2017 upheld the right of a mother to preserve her life in view of foreseeable danger in case the pregnancy is allowed to run its full course. This Court in that case relied upon Suchita Srivastava v. Chandigarh Admn, where a Bench of three Judges held: (SCC P.15, Para 22) 22. ....a woman's right to make reproductive choices is also a dimension of "personal liberty" an understood under Article 21 of the Constitution." 9. Thus, it is clear that the right of choice of reproduction is also a dimension of personal liberty as enshrined under Article 21 of the Constitution of India. In the present case, the petitioner is alleged to have entered into physical relationship with Sonu Chouraya under a misconception of fact that he would marry her but later on it is alleged that he has resiled from his promise. A criminal case has also been registered against Sonu Chouraya. Under these circumstances, if the petitioner has exercised her choice not to give birth to the child then her fundamental right under Article 21 of the Constitution of India has to be respected. 10. A criminal case has also been registered against Sonu Chouraya. Under these circumstances, if the petitioner has exercised her choice not to give birth to the child then her fundamental right under Article 21 of the Constitution of India has to be respected. 10. In the light of the aforesaid judgment and considering the allegations made by the petitioner against Sonu Chouraya as well as her choice not to give birth to the child coupled with the report of the Medical Board to the effect that the medical termination of her pregnancy is possible as well as the agony which she is going through at present, this Court is of the considered opinion that the prayer made by the petitioner deserves to be allowed and is accordingly allowed. 11. The respondents are directed to carry out termination of pregnancy immediately. The Chief Medical & Health Officer, District Jabalpur is directed to admit the petitioner latest by 6.2.2021 and termination of pregnancy be carried out as early as possible subject to the medical complications specifically after correction of anemia. 12. 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 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). 13. The High Court of Bombay in the case of Shaikh Ayesha Khatoon Vs. Union of India and Others 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." 14. 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." 14. 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. 15. With the aforesaid, this writ petition stands allowed.