Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 942 (ALL)

AB(2022) v. State Of U. P.

2022-06-08

CHANDRA KUMAR RAI, MANOJ KUMAR GUPTA

body2022
JUDGMENT : 1. Heard Sri Mahendra Pratap, learned counsel for the petitioner, Mrs. Subhash Rathi, learned Additional Chief Standing Counsel and perused the record. 2. The instant petition has been filed by a minor through her father and natural guardian praying for a mandamus directing the State respondents to permit the petitioner to terminate her pregnancy. 3. The facts of the case are extracted in our previous order dated 03.06.2022 and the same is reproduced below:- "Heard Sri Mahendra Pratap, learned counsel for the petitioner, Sri Mohan Srivastava assisted by Sri Hari Keshav for the State-respondents and perused the record. The instant petition has been filed by a minor through her father and natural guardian praying for a mandamus directing the respondents to permit her to terminate her pregnancy. As per High School Examination Marks Sheet-cum-Certificate dated 27.06.2020, the date of birth of the petitioner is 3.1.2005. She is therefore still a minor having not attained majority under the provisions of Indian Majority Act, 1875 whereunder the age is 18 years. The petitioner is alleged to be a rape victim. A first information report was lodged by her father on 10.4.2022 in relation to the incident dt. 3.3.2022 registered as Case Crime No.0089 of 2022. Initially the first information report was registered under Section 363 IPC but during course of investigation, Section 376 IPC and 3/4 Protection of Children from Sexual Offences Act 2012 have been added. Learned counsel for the petitioner has placed reliance on Explanation I of sub-Section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971, as amended from time to time (hereinafter referred to as 'the Act') in contending that the pregnancy has resulted in great anguish to the petitioner and the entire family. It is submitted that continuance of pregnancy would risk the life of the petitioner as well as her physical and mental well being. He has also placed reliance on Explanation II whereunder in a case of rape, anguish caused by pregnancy, is presumed to constitute a grave injury to the mental health of the pregnant woman. As per sonography report, the pregnancy was of sixteen weeks five days on 21.4.2022 and is thus now of twenty two weeks five days (+ -1 day). As the pregnancy does not exceed twenty four weeks, it could be terminated as per Section 3 of the Act. As per sonography report, the pregnancy was of sixteen weeks five days on 21.4.2022 and is thus now of twenty two weeks five days (+ -1 day). As the pregnancy does not exceed twenty four weeks, it could be terminated as per Section 3 of the Act. It is pertinent to note that under Section 3 it is permissible to allow a pregnant woman to terminate pregnancy if its continuance involves a risk to her life or grave injury to her physical or mental health. Under Explanation I, the Court is empowered to presume that such a pregnancy constitutes a grave injury to mental health of the pregnant woman. Under sub-section (4) of Section 3 in case of a minor the pregnancy could be terminated with the consent in writing of her guardian. Section 3 (2C) mandates that every State Government or Union Territory by notification in Official Gazette, shall constitute a Board to be called a Medical Board for the purposes of this Act. It should consist of a Gynaecologist, a Paediatrician, a Radiologist or Sonologist and 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. Sri Mohan Srivastava, learned Standing Counsel has received instructions from the Chief Medical Officer, Allahabad that so far the State Government has not notified constitution of the Medical Board. Learned counsel for the petitioner submitted that since the petitioner is a resident of district Baghpat, therefore, it would be convenient for her to get her pregnancy terminated at Lala Lajpat Rai Medical College, Meerut. Accordingly, we direct the Principal, Lala Lajpat Rai Memorial Medical College, Meerut to constitute a Board of four experts one each in the field of Gynecology, Psychiatry, Radiology or Sonology and Pediatrics. The first Additional District Judge, Meerut shall act as a member cum co-ordinator of the medical Board. The petitioner shall present herself before the Medical Board for medical examination on 06.06.2022 at 11 am. The Board after carrying out medical examination of petitioner, shall submit its opinion/ recommendation in sealed cover to the First Additional District Judge, Meerut, who shall forthwith transmit the same to this Court. The petitioner shall present herself before the Medical Board for medical examination on 06.06.2022 at 11 am. The Board after carrying out medical examination of petitioner, shall submit its opinion/ recommendation in sealed cover to the First Additional District Judge, Meerut, who shall forthwith transmit the same to this Court. The opinion/ recommendation of the Board shall inter-alia be on the following aspects: a) Length of pregnancy; b) Whether continuance of pregnancy would involve any risk to the life of the petitioner; c) Whether continuance of pregnancy would otherwise result in any grave injury to her physical and mental health; d) Whether there is substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. The report/recommendation of the Board shall positively be transmitted to this Court by 07.06.2022. Sri Mohan Srivastava, learned Standing Counsel shall communicate this order to the Superintendent of Police, Baghpat, who shall provide full security to the petitioner and person accompanying her to medical college, Meerut for medical examination. The father of the petitioner shall produce before the Superintendent of Police, evidence relating to his identity and that of the petitioner. He shall also communicate the instant order to the Principal, Lala Lajpat Rai Memorial Medical College, Meerut within 24 hours so that it is duly complied with. Office is directed to provide a free copy of this order to Sri Mohan Srivastava, learned Standing Counsel for due communication to the authorities. Registrar (Compliance) shall communicate the instant order to Additional District Judge, Meerut. Put up as fresh on 08.06.2022. Office is directed not to divulge the name of the victim or her father to anyone nor it shall be put in public domain. The case will be shown as AB (2022) in the computer database and in all copies and correspondence made in the instant case.” 4. Pursuant to above order the petitioner presented herself for medical examination before a Medical Board constituted for the said purpose consisting of different experts in the field of Gynaecology, Psychiatry, Radiology and Pediatrics of Lala Lajpat Rai Memorial Medical College, Meerut. The report of the Medical Board has been submitted to us in a sealed cover through Incharge Additional District & Sessions Judge, Meerut. The report of the Medical Board has been submitted to us in a sealed cover through Incharge Additional District & Sessions Judge, Meerut. The report is as follows:- dz-la- fcUnq vk[;k A Length of Pregnancy AB (2022) ds Examination mijkUr o vYVklkmUM djus ij Length of Pregnancy 22 weeks 6 days ik;h x;h ¼vYVklkmUM layXu½ Annexure – 01 B Whether continuation of pregnancy would involve any risk to the life of petitioner Yes, as it is a teenager pregnancy (17 yrs 5 months and 3 days of age, till date) there is risk to life of AB (2022) because of chances of more complications. C Whether continuance of pregnancy would otherwise result in any grave injury to her physical and mental health. Yes, anguish of sexual assault will itself affect her physical and mental health. (Mental Health Assessment done by Psychiatrist is enclosed) Annexure – 02. 5. Opinion:-In view of the above facts and circumstances Medical Board approves medical termination of her pregnancy. layXud % mijksDrkuqlkj g0 vi0 g0 vi0 Mk0 oUnuk Mk0 fot; tk;loky ¼lnL; tkap lfefr½ ¼lnL; tkap lfefr½ vkpk;Z ,oa ihlhih,uMhVh] uksMy vkfQlj vkpk;Z ,oa foHkkxk/;{k xk;fud foHkkx ckyjksx foHkkx] esfMdy dkyst] esjB esfMdy dkyst] esjB g0 vi0 g0 vi0 Mk0 r:.k iky Mk0 vk:"kh ¼lnL; tkap lfefr½ ¼lnL; tkap lfefr½ lgk;d vkpk;Z ,oa foHkkxk/;{k lhfu;j jsthMsUV ekufld jksx foHkkx jsfM;ksykWth foHkkx] esfMdy dkyst] esjB esfMdy dkyst esjB g0 vi0 Mk0 mfeZyk dk;kZ ¼v/;{k tkap lfefr½ vkpk;Z ,oa foHkkxk/;{k izlwfr ,oa L=h jksx foHkkx] esfMdy dkyst] esjB 6. It is clear from the above report that the length of pregnancy was 22 weeks 6 days, thus, less than 24 weeks (the outer limit prescribed under Section 3(2) of the Act). The report clearly opines that in case the pregnancy is permitted to continue, there is risk to the life of the petitioner and that the unwanted pregnancy had resulted in grave injury to the mental health of the petitioner. 7. Section 3 of the Act provides that a pregnancy could be terminated by a registered medical practitioner, if he is of opinion, formed in good faith, that continuance of the pregnancy would involve a risk to the life of pregnant woman, or grave injury to her physical or mental health, or there is a substantial risk of child suffering from physical or mental abnormalities, if born. The first explanation to sub-section 2 of Section 3 creates a legal presumption that pregnancy caused by rape would result in anguish to the pregnant woman and would constitute a grave injury to her mental health. 8. In Suchita Srivastava & Others vs. Chandigarh Administration, AIR 2010 SC 235 , the Supreme Court laid down two tests, namely the 'best interests' test and the 'substituted judgment' test for determining whether the pregnancy should be permitted to be continued or not. The 'best interest' test requires the court to ascertain the course of action which would serve the best interest of the person in question. The 'substituted judgment' test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. In the instant case, the petitioner being a minor, the 'substituted judgment' test would apply. The petitioner is only seventeen years of age. The medical opinion is unequivocally in favour of fetus being aborted to prevent risk to the life of the petitioner. First Explanation to sub-section 2 of Section 3 of the Act engrafts a presumption that where a pregnancy has resulted on account of rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. 9. In totality of the facts and circumstances of the instant case, we are of considered opinion that petitioner should be permitted to terminate the unwanted pregnancy. We accordingly allow and permit the termination of the pregnancy. 10. The pregnancy shall be terminated by a registered medical practitioner at a hospital established or maintained by Government or a place for the time being approved for the purpose of this Act by Government, as contemplated under Section 4 of the Act. The hospital where the pregnancy is terminated shall maintain confidentiality, as required under Section 5-A of the Act. 11. The permission given hereinabove for termination of pregnancy shall last only until the fetus attains age of 24 weeks and consequently, the 5 of 6 petitioner is directed to present herself for termination of pregnancy at recognized medical centre, as stipulated under Section 4 of the Act, well before expiry of 24 weeks, failing which the instant order shall automatically lapse. 12. 12. The Registrar General is directed to preserve the report of Medical Board in sealed cover for future reference, if needed. 13. The petition stands disposed of accordingly.