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2023 DIGILAW 1630 (ALL)

Pratibha Devi v. State of U. P.

2023-07-10

MAHESH CHANDRA TRIPATHI, PRASHANT KUMAR

body2023
JUDGMENT : Heard Sri Rahul Mishra, learned counsel for the petitioners and Ms. Uttara Bahuguna, learned Additional Chief Standing Counsel for the State-respondents. 2. The petitioners have prayed for the following reliefs :- "(i) issue a writ, order or direction in the nature of mandamus directing the respondents authorities to terminate the pregnancy of victim/petitioner No. 1 (Minor daughter of the petitioner no. 2) who is a raped victim provided under the relevant provisions of the Medical Termination of Pregnancy Act, 1971. Further prayer has also been made for directing the respondent authorities to accord suitable compensation to the petitioner No. 1 under the U.P. Rani Laxmibai Mahila Samman Kosh Niyamawali, 2015. (ii) issue a writ, order or direction in the nature of mandamus directing the respondent nos. 1 and 4 to conduct medical examination of pregnancy of the petitioner no. 1/victim with two qualified surgeon including Gynaecologist/ Obstetrician in presence of qualified physician with due care, so as to avoid any harm to the physical or mental health of petitioner no. 1/victim after carrying out necessary medical check-up." 3. Learned counsel for the petitioners submits that as per the High School certificate of the first petitioner, her date of birth is 02.07.2005 and presently, she is more than 18 years old. For the first time, the second petitioner (father of the first petitioner ) came to know on 11.05.2023 that her daughter has been sexually assaulted and at the time of incident, she was minor. Consequently, the second petitioner had lodged an FIR against the accused Dileep Kumar @ Golu and the same was registered as Case Crime No.145/2023 under Sections 363 and 366 IPC, P.S. Thariyaon, District Fatehpur on 11.05.2023. During the investigation, Section 376 IPC and Section 5/6 of POCSO Act was added against the accused Dileep Kumar @ Golu. Thereafter, the first petitioner moved an application before the District Magistrate, Fatehpur on 29.05.2023 stating that since the first petitioner was forcefully raped by the accused, therefore, they want to terminate the pregnancy of the first petitioner. She has also moved an application before the Chief Medical Officer, Fatehpur on 23.05.2023 for redressal of her grievance. It is submitted that the first petitioner is suffering from mental agony due to her pregnancy, and as such, this Court should come for rescue and reprieve the petitioners. 4. She has also moved an application before the Chief Medical Officer, Fatehpur on 23.05.2023 for redressal of her grievance. It is submitted that the first petitioner is suffering from mental agony due to her pregnancy, and as such, this Court should come for rescue and reprieve the petitioners. 4. In support of his submission, learned counsel for the petitioner has placed reliance upon the decision in Venkatalakshmi v. State of Karnanata Civil Appeal No.15378/2017 dated 21.09.2017, wherein the Hon'ble Supreme Court had allowed the termination of pregnancy of rape victim beyond the gestational age of 24 weeks. The order is reproduced herein below:- "Leave granted. The appellant calls in question the legal propriety of the order dated 31st August, 2017 passed in Writ Petition No.38015 of 2017 whereby the High Court of Karnataka at Bengaluru has declined to entertain the prayer of the petitioner seeking termination of pregnancy. When the matter before this Court was listed on 18th September, 2017, the following order came to be passed: Let a copy of this special leave petition be served on Mr. V.N.Rathupathy, learned standing counsel for the State of Karnataka. Signature Not Verified Let a copy of the special leave petition be also provided to Mr.Ranjit Kumar, learned Digitally signed by ASHOK RAJ SINGH Date: 2017.09.21, 19:21:32 IST Reason: Solicitor General who shall assist us in this matter. In the meantime, Bangalore Medical College and Research Institute shall constitute a Medical Board to examine the victim as confirmed by Mr.Nikhil Nayyar. The victim shall appear before the Medical Board on Wednesday, 20th September, 2017 at 11.30 a.m. Mr.Ranjit Kumar, learned Solicitor General has assured this Court that he shall communicate the concerned competent authority about the order passed today. Let the matter be listed again on Thursday, 21st September, 2017.? In pursuance of our order, the Medical Board of Bangalore Medical College and Research Institute has examined the appellant and eventually has come to the conclusion which reads as follows: Psychiatry Examination Patient Venkatalakshmi aged 17 years, (Psychiatry File Number 33350) was evaluated on 20/09/2017 between 12.30 pm and 3.30 pm. There were no reliable informants available for psychiatric evaluation. However, on examination, the child is intellectually within normal limits and is euthymic. She expressed remorse about her current state and wants to terminate the pregnancy. She is hopeful of continuing studies and is optimistic about future. There were no reliable informants available for psychiatric evaluation. However, on examination, the child is intellectually within normal limits and is euthymic. She expressed remorse about her current state and wants to terminate the pregnancy. She is hopeful of continuing studies and is optimistic about future. No other psychopathology could be elicited on mental status examination. Based On All The Above Examinations And Investigations, Ms.Venkatalakshmi. V Is Found To Be Of 26 Weeks Of Gestation With Mild Anaemia. We Are Of The Opinion That There Is No Medical Contraindication For Her To Undergo Termination Of Pregnancy After Correction Of Anaemia? It is absolutely necessary to state here that the appellant is a victim of rape. Regard being had to the aforesaid conclusion in the report submitted by the Medical Board, Bangalore Medical College and Research Institute, we direct as follows: (i) The appellant shall make herself available at 11.30 a.m. on 22nd September, 2017 before the competent authority of the hospital. The person in-charge of the appellant shall take her to the hospital. (ii) Mr.V.N.Raghupathy, learned counsel for the State of Karnataka shall intimate the competent authority where she is residing at present about this order. (iii) After she reports at the hospital, the Director, Bangalore Medical College and Research Institute shall admit the patient and see to it that proper steps are taken for termination of pregnancy. We may hasten to add that we are passing this order keeping in view the medical report and we are sure that the doctors while carrying out the operation procedure for termination of pregnancy, shall keep every safety aspect in view. The State shall bear all the expenses necessary for the operation, medicines, food etc. of the patient. The Institute shall preserve the terminus fetus as that may be necessary for the purpose of DNA testing with reference to Crime Case No.0247/2017 subject to order of this Court. The appeal is accordingly allowed and the order passed by the High Court is set aside." 5. Learned counsel for the petitioner has further placed reliance on the judgements of High Court of Delhi at New Delhi in W.P. (CRL) 221/2023 (Minor R The Mother v. State of NCT of Delhi & another) decided on 25.01.2023 and W.P. (C) No.5112/2023 (GDN v. Government of NCT of Delhi) decided on 28.04.2023. 6. Learned counsel for the petitioner has further placed reliance on the judgements of High Court of Delhi at New Delhi in W.P. (CRL) 221/2023 (Minor R The Mother v. State of NCT of Delhi & another) decided on 25.01.2023 and W.P. (C) No.5112/2023 (GDN v. Government of NCT of Delhi) decided on 28.04.2023. 6. In order to appreciate the contentions of the petitioner and decide the issue at hand, it would be apt to reproduce Section 3 of MTP Act 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 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 Digitally Signed By:Zeenat Praveen Signing Date:25.01.2023, 21:42:30 Neutral Citation NO. 2023/DHC/000570 (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. 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. (2A) 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. (2B) 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. (2C) 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. (2D) 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 a 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. Section 3 of MTP Act provides that termination of pregnancy of a woman where it exceeds 20 weeks but does not exceed 24 weeks can only be allowed in special categories, and where the medical practitioners are of the opinion that continuance of such pregnancy would either involve a risk to the life of the women or cause grave injury to her physical health or grave injury to her mental health. The categories, under which pregnancy can be terminated where pregnancy is between 20 to 24 weeks, has been prescribed by the Central Government under the Medical Termination of Pregnancy, Rules 2003 [as amended by Medical Termination of Pregnancy (Amendment) Rules, 2021], wherein seven categories have been provided which are as under: - "3B. Women eligible for termination of pregnancy up to twenty-four weeks.-- The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:- (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)]; (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.". 8. A perusal of the aforesaid Rule reveals that clause (a) relates to victims of sexual assault, rape or incest and in the present case, the victim falls under clause (a). Therefore, the victim would fall under the special categories as enumerated by the Central Government under the rules notified as per the mandate of section 3(2)(a) of MTP Act. 9. Furthermore, Explanation 2 to the aforesaid provision explicitly provides that where pregnancy is alleged to have been caused by an act of rape, the anguish caused by such a pregnancy shall be presumed to constitute grave injury to the mental health of pregnant woman as required under Section 3(2)(i) of MTP Act. Therefore, it is not in dispute that in case of a victim, who is alleged to be sexually assaulted or raped and as a consequence of which she has conceived, the injury that is caused to her mental health is presumed even statutorily. 10. Therefore, it is not in dispute that in case of a victim, who is alleged to be sexually assaulted or raped and as a consequence of which she has conceived, the injury that is caused to her mental health is presumed even statutorily. 10. Under similar circumstances, the Hon'ble Apex Court in Venkatalakshmi v. State of Karnataka (supra), as well as the Division Benches of High Court of Delhi in Minor R The Mother v. State of NCT of Delhi & another) (supra) and GDN v. Government of NCT of Delhi (supra) had also allowed termination of pregnancies of more than 24 weeks in cases of rape victims. 11. In the case of sexual assault, denying a women right to say no to medical termination of pregnancy and fasten her with responsibility of motherhood would amount to denying her human right to live with dignity as she has a right in relation to her body which includes saying Yes or No to being a mother. Section 3(2) of the MTP Act reiterates that right of a woman. To force the victim to give birth to child of a man who sexually assaulted would result in unexplainable miseries. 12. The matter was taken up on 07.03.2023 and on the said date, this Court had directed both the petitioners to appear before the Chief Medical Officer, Fatehpur within three days and the Chief Medical Officer was directed to constitute a Committee of registered medical practitioners to examine the first petitioner for termination of her pregnancy and the matter was directed to be listed today i.e. 10.07.2023. 13. In compliance of the aforesaid order dated 03.07.2023, Ms. Uttara Bahuguna, learned Additional Chief Standing Counsel has placed the detailed instruction sent by the Chief Medical Officer, Fatehpur dated 06th July, 2023 indicating therein that the Medical Board was constituted as per provisions contemplated in Medical Termination of Pregnancy Act, 1971. The petitioner is a raped victim and is having a foetus of 12 weeks and the doctors have opined that there is no medical hazard of termination of pregnancy of the victim. The instruction is taken on record. 14. In the facts and circumstances, we direct the respondent nos. 4 and 5 for ensuring the termination of pregnancy of the first petitioner within three days from the date of placing the order before the respondent no.5 i.e. the Chief Medical Officer, District Fatehpur. 15. The instruction is taken on record. 14. In the facts and circumstances, we direct the respondent nos. 4 and 5 for ensuring the termination of pregnancy of the first petitioner within three days from the date of placing the order before the respondent no.5 i.e. the Chief Medical Officer, District Fatehpur. 15. Learned counsel for the petitioners is directed to implead "District Magistrate- Fatehpur" as respondent no.7 during the course of the day. 16. A direction is also issued to the newly impleaded respondent no.7 that adequate compensation under the U.P. Rani Laxmibai Mahila Samman Kosh Niyamawali, 2015 may be accorded to the first petitioner within six weeks from today. 17. With the aforesaid direction, the writ petition stands disposed of. 18. Let copy of the order be given to Ms. Uttara Bahuguna, learned Additional Chief Standing Counsel within 48 hours time for necessary communication and compliance of the order passed today.