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2023 DIGILAW 2297 (ALL)

Abc D/o Deep Chand v. State of U. P.

2023-10-06

SALIL KUMAR RAI, SURENDRA SINGH-I

body2023
JUDGMENT : Surendra Singh-I, J. On the previous date i.e. on 27.9.2023 considering the advance stage of pregnancy of the survivor which was 21 weeks and 5 days and the fact that the Court was to remain closed for the next five days i.e. from 28.9.2023 to 2.10.2023, the Court after considering the Medical Report dated 26.9.2023, directed the CMO Ghaziabad to carry out medical termination of pregnancy of the victim and send his report to this Court. It was also mentioned that the reasons for the order will be given later. 2. In pursuance to the order dated 27.9.2023 passed by us, the reasons for the said order are being stated below. 3. The provisions regarding medical termination of pregnancy is provided under Section 3 of the Act No. 34 of 1971 which as follows : ''3. When pregnancies may be terminated by registered medical practitioners.-(1) Notwithstanding anything contained in the India 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. (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. (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 Neutral Citation No. 2023:AHC:193291-DB (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.'' 4. Thus, Section 3 of the Act No. 34 of 1971 provides that the termination of pregnancy of a woman having duration between 20 weeks and 24 weeks can be carried out only on the recommendation of Medical Board consisting of not less than two registered medical practitioners. Thus, Section 3 of the Act No. 34 of 1971 provides that the termination of pregnancy of a woman having duration between 20 weeks and 24 weeks can be carried out only on the recommendation of Medical Board consisting of not less than two registered medical practitioners. Report of Medical Board should mention that the continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health. In Explanation-II of Section 3 a statutory presumption has been raised that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Clause 4 and 5 of Section 3 provides that consent in writing of a pregnant woman, who has attained the age of majority, is necessary. 5. In the case of XYZ v. The State of Gujarat and others, 2023 Live Law (SC) 680, the Hon'ble Apex Court had held that in Indian society, pregnancy outside the marriage in most cases, is injurious particularly, after a sexual assault/abuse and is cause of stress and trauma affecting both physical and mental health of the pregnant women/survivor. It was also observed that the pregnant women has the fundamental right under Article 21 of the Constitution of India to decide whether to get her pregnancy terminated or give birth to a child. The relevant paragraph Nos. 14,15,16,17,18 and 19 of the said judgment is quoted as under : ''14. In Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1 , this Court expressed that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution. She has a sacrosanct right to her bodily integrity. 15. In Sarmishtha Chakrabortty and another v. Union of India Secretary and others, (2018) 13 SCC 339 ; this Court, considered the medical report and held that unless the pregnancy was terminated, the life of the mother and that of the baby to be borne would be in great danger and, therefore, permitted termination of the pregnancy. 16. 15. In Sarmishtha Chakrabortty and another v. Union of India Secretary and others, (2018) 13 SCC 339 ; this Court, considered the medical report and held that unless the pregnancy was terminated, the life of the mother and that of the baby to be borne would be in great danger and, therefore, permitted termination of the pregnancy. 16. A three-Judge Bench of this Court in Murugan Nayakkar v. Union of India and others, Writ Petition (Civil) No. 749 of 2017, disposed of on 6.9.2017, while considering the case of a minor petitioner-survivor of alleged rape and sexual abuse, held that it would be appropriate that termination of pregnancy be allowed in accordance with the opinion of the Medical Board constituted by an order of this Court, to the effect that termination of pregnancy should be carried out. A direction was issued that on a very next date i.e. 7.9.2017, the petitioner was to be present so that on 8.9.2017 the termination of pregnancy could be carried out. 17. More recently, in the case of X v. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and others, AIR 2022 SC 4917 ; this Court, in another three-judge Bench lead by Dr. D.Y. Chandrachud, J. (as the learned Chief Justice then was) observed that a woman can become pregnant by choice irrespective of her marital status. In case the pregnancy is warranted, it is equally shared by both the partners. However, in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion. 18. In the context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women. 19. The whole object of preferring a Writ Petition under Article 226 of the Constitution of India is to engage with the extraordinary discretionary jurisdiction of the High Court in exercise of its constitutional power. Such a power is vested with the constitutional Courts and discretion has to be exercised judiciously and having regard to the facts of the case and by taking into consideration the relevant facts while leaving out irrelevant considerations and not vice versa.'' 6. The Medical Termination of Pregnancy Rules 2003 has been framed under the Provisions of Act No. 34 of 1971. The Rule 3-B of the said Rules is as follows : 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.] 7. Since the pregnancy of the petitioner/survivor has been caused due to rape, thus her case is covered by Clause (a) of Rule 3-B of the aforesaid Rule. 8. In X v. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and others, AIR 2022 SC 4917 ; this Court, in a three-judge Bench lead by Dr. Since the pregnancy of the petitioner/survivor has been caused due to rape, thus her case is covered by Clause (a) of Rule 3-B of the aforesaid Rule. 8. In X v. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and others, AIR 2022 SC 4917 ; this Court, in a three-judge Bench lead by Dr. D.Y. Chandrachud, J. (as the learned Chief Justice then was) has analysed the provisions of Section 3 of the Act No. 34 of 1971 as it was before and after its amendment in 2021 with reference to Rule 3-B of the aforesaid Rules and has stated that the provisions of Section 3-B shall be applicable even to an unmarried pregnant women. It shall be also applicable where the pregnancy has been caused not due to any sexual assault/rape but due to consensual relationship, the relevant paragraphs of the aforesaid judgment is as follows. ''19. A woman's right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity. In Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 , this Court has recognized that a woman's right to reproductive autonomy is a dimension of Article 21 of the Constitution: ''22. There is no doubt that a woman's right to make reproductive choices is also a dimension of ''personal liberty'' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.'' In Justice K.S. Puttaswamy (Retd.) and another v. Union of India and others, (2017) 10 SCC 14, the decision of a woman to procreate or abstain from procreating has been recognized as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution: ''298. [p]rivacy of the body entitles an individual to the integrity of the physical aspects of personhood. [p]rivacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised.'' The Bombay High Court in High Court on its Own Motion v. State of Maharashtra, 2017 Cr LJ 218 (Bombay HC) observed as follows: ''14. A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health'' (Emphasis Supplied) 20. Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom. Live-in relationships have been recognized by this Court. In S. Khusboo v. Kanniammal, (2010) 5 SCC 600 , this Court observed that criminal law should not be weaponized to interfere with the domain of personal autonomy. 21. On the above premises, we are inclined to entertain the Special Leave Petition. In the meantime, we are of the view that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament. 21. On the above premises, we are inclined to entertain the Special Leave Petition. In the meantime, we are of the view that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament. Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman. The distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act. The petitioner had moved the High Court before she had completed 24 weeks of pregnancy. The delay in the judicial process cannot work to her prejudice.'' 9. In the light of the aforesaid statutory provisions and the judgments of the Hon'ble Supreme Court, the petitioner was entitled to get her pregnancy medically terminated.