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2024 DIGILAW 322 (CHH)

Xyz Nil v. State of Chhattisgarh

2024-04-12

RAKESH MOHAN PANDEY

body2024
ORDER : (Rakesh Mohan Pandey, J.) By way of this petition, the petitioner has sought the following relief(s):- "10.1. This, Hon'ble Court may kind enough to issue an appropriate writ by directing the respondent no.3 to permit the petitioner for abortion of her pregnancy as early as possible. 10.2. Any other relief or relief(s) which this Hon'ble Court may think proper in view of the facts and circumstances of the case may also kindly be granted." 2. The present writ petition has been filed by the petitioner (ABC, minor girl) through her natural guardian XYZ, seeking permission for the termination of pregnancy of the petitioner (ABC Minor). 3. The brief facts of the present case are that the complainant/mother of the victim lodged an FIR on 26.03.2024 against the minor accused, who committed sexual assault on the person of the victim on false pretext of marriage. The petitioner conceived and at present, she is carrying pregnancy of 21-22 weeks. On such complaint, the police registered the FIR for commission of offence punishable under Section 376(2)(n) of IPC. 4. The petitioner approached the police authorities, who, in turn, advised her to approach this Court seeking permission for termination of unwanted pregnancy. On 9.4.2024, this matter was taken up for hearing and a direction was issued to the Chief Medical and Health Officer, Korba to constitute a Board according to the provisions of Rule 3 of the Medical Termination of Pregnancy Rules, 2003 and to submit a report according to the Section 3(2) of the Medical Termination of Pregnancy Act, 1971 by 12.4.2024. 5. Today, the report has been placed on record. According to report dated 11.4.2024, the victim is carrying pregnancy of 21 weeks and with the consent of parents of the victim, the unwanted pregnancy can be terminated. 6. So far as the proceedings for termination of pregnancy are concerned, the law in this regard has been framed in the Medical Termination of Pregnancy Act, 1971 {as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021}. Section 3 of the said Act specifically deals with the conditions which are required and which have to be adhered to. For ready reference, Section 3 of the said Act is reproduced herein under:- "3. Section 3 of the said Act specifically deals with the conditions which are required and which have to be adhered to. For ready reference, Section 3 of the said Act is reproduced herein 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 (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 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. (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 subsection (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. From a bare perusal of the aforesaid provisions, it is evident that termination of pregnancy is permissible in the given circumstances as envisaged under Section 3. Undoubtedly, in the instant case, the minor victim is just about 14 years of age i.e. too young to undergo the trauma of pregnancy and the continuation of pregnancy can lead to complications at a later stage so far as the physical condition as also the psychological and mental condition of the victim are concerned. 8. In the case of Suchita Srivastav & Another v. Chandigarh Administration, reported in 2009 (9) SCC 1 , the Hon'ble Supreme Court in paragraph Nos. 36 & 37 observed as under:- "36. 8. In the case of Suchita Srivastav & Another v. Chandigarh Administration, reported in 2009 (9) SCC 1 , the Hon'ble Supreme Court in paragraph Nos. 36 & 37 observed as under:- "36. Courts in other common law jurisdictions have developed two distinct standards while exercising "parens patriae" jurisdiction for the purpose of making reproductive decisions on behalf of mentally retarded persons. These two standards are the "best interests" test and the "substituted judgment" test. 37. As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interest of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights." 9. The Supreme Court in the case of Meera Santosh Pal & others v. Union of India and others, { (2017) 3 SCC 462 }, reiterated the view taken in the case of Suchita Srivastava (supra) and observed thus in para 9, which is reproduced hereunder:- "9. In Suchita Srivastava v. Chandigarh Admn { (2009) 9 SCC 1 } a Bench of three Judges held "a woman's right to make reproductive choices is also 6 a dimension of 'personal liberty' as understood under Article 21 of the Constitution". The Court there dealt with the importance of the consent of the pregnant woman as an essential requirement for proceeding with the termination of pregnancy. The Court observed as follows:- "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. 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. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children." 10. Likewise, again in the case of X v. Union of India & others reported in 2016 (14) SCC 382 , in paragraph No. 13 it has been held as under:- "13. Having perused the medical report (relevant extracts whereof have been reproduced hereinabove), we are satisfied that a clear finding has been recorded by the Medical Board, that the risk to the petitioner of continuation of her pregnancy can gravely endanger her physical and mental health. The Medical Board has also expressed an advice that the patient should not continue with the pregnancy. In view of the findings recorded in Para 6 of the report, coupled with the recommendation and advice tendered by the Medical Board, we are satisfied that it is permissible to allow the petitioner to terminate her pregnancy in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. In view of the above, we grant liberty to the petitioner, if she is so advised, to terminate her pregnancy." 11. In the matter of Ms. X and Anr. v. State of Chhattisgarh and Ors., in WPC No. 2689 of 2019 dated 27.8.2019, the Coordinate Bench of this Court had allowed the writ petition and permitted the victim for terminating the pregnancy. 12. Bare perusal of the facts that the present case would show that the said judgment of this Court in WPC No. 2869/2019 is on similar footing and the condition of the petitioner therein and the petitioner herein also are almost similar. Considering the fact that the petitioner herein has got conceived because of the alleged crime committed against her and out of an act without her consent. Considering the fact that the petitioner herein has got conceived because of the alleged crime committed against her and out of an act without her consent. Coupled with the fact that the petitioner is an unmarried girl, the continuation of the pregnancy would involve great risk of causing grave injury to the mental health of the petitioner, which would also be detrimental to the fetus, which may further result in graver injury. This Court is therefore of the opinion that under the circumstances, the petitioner should be permitted termination of her pregnancy under the supervision of registered medical practitioners. If the petitioner is not granted this permission at this stage, she would be forced to undergo great amount of anguish, depression coupled with the social stigma of conceiving before marriage, which would further cause mental trauma to the petitioner, for this reason also the petitioner should be granted the permission. 13. In view of the aforesaid facts and circumstances of the case and also taking note of the decision of this Court rendered in WPC No. 2869/2019 decided on 27.08.2019, this Court is also inclined to take the same stand and allow the present writ petition permitting the petitioner to undergo with the termination of her pregnancy. 14. Accordingly, it is directed that let the petitioner approach the respondent No.3 within three days from today and in turn the respondent No.3 shall ensure that the petitioner is subjected to medical termination of her pregnancy under the supervision of two registered medical practitioners preferably two senior Doctors available in the district after obtaining due consent of the petitioner as well as her guardian. Accordingly, it is directed that the petitioner shall be subjected to medical termination of pregnancy under the supervision of the respondent No.3 and the team of Doctors, who have examined the petitioner. While undergoing the process of medical termination of pregnancy the respondent No.3 is directed to obtain all necessary consents and documentation part, which is otherwise required including the consent of the petitioner and that of the guardian or any other responsible member of the family of the petitioner from the same. The DNA sample of the fetus shall also be taken and preserved for further evidence as the criminal case against the accused is still pending. Let this exercise be carried without any further delay. 15. The DNA sample of the fetus shall also be taken and preserved for further evidence as the criminal case against the accused is still pending. Let this exercise be carried without any further delay. 15. With the aforesaid observation(s) and direction(s), the present writ petition stands allowed and disposed of. 16. Certified copy as per rules.