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2022 DIGILAW 152 (UTT)

X v. State of Uttarakhand

2022-06-22

MANOJ KUMAR TIWARI

body2022
JUDGMENT : Heard learned counsel for the parties through video conferencing. 2. Petitioner is a minor girl, who was born on 27.09.2005, as per her date of birth recorded in High School Certificate. She is a victim of alleged rape and sexual abuse. In this writ petition, petitioner has sought a direction to respondents to terminate her pregnancy, as per provisions of Medical Termination of Pregnancy Act, 1971. 3. It is stated in the writ petition that she had made application to the Investigating Officer in respect of F.I.R. No. 188 of 2022 (registered on 25.05.2022 in P.S. Transit Camp, Rudrapur, Udham Singh Nagar) seeking permission to terminate the pregnancy. She had made similar request to District Magistrate, Udham Singh Nagar on 10.06.2022 by making an application, which is on record as Annexure-6 to the writ petition. 4. The relief sought in the writ petition is extracted below:- “i. Issue a writ order or direction in the nature of mandamus commanding the respondents to terminate the pregnancy of petitioner as per provisions of The Medical Termination of Pregnancy Act 1971 and further The Medical Termination of Pregnancy (Amendment) Act 2021 in pursuance to application submitted by the mother of the petitioner before the District Magistrate Udham Singh Nagar and Investigating officer of First Information Report No. 188 of 2022 under section 363 of IPC Police Station Transit Camp District Udham Singh Nagar and further direct the respondent to preserve the foetus for Deoxyribonucleic acid (DNA) analysis test.” 5. Since petitioner is a minor, therefore, this writ petition has been filed through her mother/natural guardian. 6. The ultrasonography report dated 02.06.2022 is on record as Annexure-3 to the writ petition, which reveals that length of pregnancy is 8 weeks 5 days. Section 3 of the Medical Termination of Pregnancy Act, 1971, as amended in 2021 is reproduced 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. 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 twenty weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the 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 any serious physical or mental abnormality. Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.—For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (2-A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act. (2-B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2-B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2-C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. (2-D) The Medical Board shall consist of the following, namely— (a) a Gynaecologist; (b) a Paediatrician; (c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.] (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 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. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman” 7. Clause (a) of Section 3(2) of the aforesaid Act permits medical termination of pregnancy upto 20 weeks and clause (b) permits medical termination of pregnancy upto 24 weeks in certain cases, however, it can be done, if registered medical practitioner(s) is/are of the opinion that (i) continuance of the pregnancy would involve a risk to the life of pregnant woman or of grave injury to her physical and mental health or (ii) there is a substantial risk that if the child were born, it would suffer from any physical or mental abnormality. 8. In the present case, the pregnancy is alleged to have been caused by rape, therefore, Explanation 2 to Section 3(2) would be attracted, which provides that in case, pregnancy is alleged to have been caused by rape, the anguish caused by pregnancy shall be presumed to constitute a grave injury to the mental health of pregnant woman. 9. 8. In the present case, the pregnancy is alleged to have been caused by rape, therefore, Explanation 2 to Section 3(2) would be attracted, which provides that in case, pregnancy is alleged to have been caused by rape, the anguish caused by pregnancy shall be presumed to constitute a grave injury to the mental health of pregnant woman. 9. Learned counsel for the petitioner submits that since petitioner is a minor, who is victim of rape and pregnancy has been caused by rape, therefore, continuance of pregnancy would constitute grave injury to the mental and physical health of the petitioner, therefore, respondents be directed to take necessary steps for medical termination of pregnancy as per provisions of the aforesaid Act. He further submits that pregnancy can be terminated only upto 20 weeks and if necessary directions are not immediately issued for termination of pregnancy, the window period of 20 weeks would be lost. He further submitted that although representations were made to Investigating Officer and also the concerned District Magistrate, however, they have not taken any decision in the matter, therefore, petitioner has approached this Court. 10. Learned counsel for the petitioner further submits that petitioner is under great stress due to pregnancy and she is not physically and mentally fit to bear the child. He further submits that future of the minor girl would be ruined, if pregnancy is not immediately terminated. 11. It is not in dispute that decision in the matter brooks no delay. The decision to terminate the pregnancy is to be taken, if it is in the best interest of the minor girl and it has to be ascertained that it may not cause harm to the physical health of the girl. 12. Having regarding to the peculiar facts and circumstances of the case, writ petition is disposed of with the following directions:- I. Petitioner shall be examined by the Medical Board constituted under sub-section (2D) of Section 3 of the aforesaid Act, within 24 hours and if such Medical Board is not constituted in the district so far, then Chief Medical Officer, Udham Singh Nagar shall constitute a Board, consisting of (a) Gynaecologist; (b) Paediatrician; (c) Radiologist or Sonologist; and (d) a Psychologist, if available in the district, within 24 hours. II. II. The Medical Board shall examine the petitioner to assess her mental/physical health and also to ascertain length of pregnancy, within next 24 hours. Petitioner’s medical examination shall be done in a Government Hospital having adequate facilities for such examination. III. If the Medical Board forms an opinion that termination of pregnancy is in the best interest of the petitioner and it should be carried out to prevent injury to the mental health of the petitioner, then Chief Medical Officer will make necessary arrangements for termination of the pregnancy, which shall be carried out by a Senior/experienced Gynaecologist. IV. During the procedure of medical termination, if it is found that there is any risk to the life of the petitioner, then the Gynaecologist will have the discretion to cancel the said procedure. The Medical Board shall maintain complete record of the procedure of termination of pregnancy of the petitioner. V. The Medical Board shall collect the tissue and blood sample of foetus, if removed, for conducting D.N.A. and other test. The Investigating Officer shall collect the tissue and blood sample of foetus for further necessary action. VI. Senior Superintendent of Police, Udham Singh Nagar is directed to issue necessary instructions in this regard to the Investigating Officer concerned. VII. District Magistrate, Udham Singh Nagar and Chief Medical Officer, Udham Singh Nagar shall ensure that petitioner is provided medical/health support for the period of three weeks after the medical procedure, to ensure that she is able to recover from trauma. 13. Learned counsel for the petitioner submitted that petitioner will appear before Chief Medical Officer, Udham Singh Nagar with her guardian at 12:30 p.m. on 24.06.2022. 14. Let certified copy of this order be supplied to the petitioner today itself.