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Madhya Pradesh High Court · body

2025 DIGILAW 90 (MP)

A v. State Of Madhya Pradesh

2025-02-05

VISHAL DHAGAT

body2025
ORDER : VISHAL DHAGAT, J. 1. Petitioner has filed this petition under Article 226 of the Constitution of India making a prayer for granting permission for medical termination of pregnancy of a minor girl, who is represented by her guardian, father. Prosecutrix was subjected to rape and become pregnant. 2. Counsel appearing for the petitioner submitted that FIR was lodged on 29.11.2024 of rape on a minor mentally challenged girl aged about 14 years. MLC was done on 30.11.2024 and she was pregnant about 21 weeks and 3 days and as on 30.1.2025, she was pregnant for 30 weeks and 1 day. Father is sole guardian, labourer and he will not be able to handle the grave situation. Looking to the age of a girl and impact of pregnancy on her physical, mental and psychological well being and societal repercussions, petitioner may be permitted to terminate the pregnancy. Minor girl is not capable of taking care of herself and bringing up of child. Petitioner is having reproductive autonomy. Petitioner is a woman and she is having right to take decision to give birth or not. It is submitted by her that opinion of Medical Board must not be restricted to the criteria under Section 3(2)(B) of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to `Act of 1971') and may also evaulate physical and emotional well being of pregnant person. In these circumstances, prayer is made for medical termination of pregnancy. 3. Govt. Advocate for the State has produced the medical report of examination of victim. Report was not clear and nothing has been said, therefore, to help Court to decide on medical termination of pregnancy, second opinion was called for vide order dated 4.2.2025. Second medical opinion report dated 5.2.2025 is received and same is reproduced as under:- 1. On the basis of examination & available reports, the fetus seems normal and has not apparent anomaly that is incompatible with life. 2. Continuation of Pregnancy does not pose any grave risk to the health of survivor/prosecutrix. 3. Termination of pregnancy at 30 weeks may be riskier to the survivor than spontaneous labour at a later period of gestation. Govt. Advocate submitted that Court may take decision on the basis of medical opinion given by the Board regarding termination of pregnancy. 4. Heard learned counsel for the parties. 5. 3. Termination of pregnancy at 30 weeks may be riskier to the survivor than spontaneous labour at a later period of gestation. Govt. Advocate submitted that Court may take decision on the basis of medical opinion given by the Board regarding termination of pregnancy. 4. Heard learned counsel for the parties. 5. Medical termination of pregnancy can be done irrespective of age of fetus provided that case is covered under Section 3(2-B) or under Section 5(1) of the Act of 1971. As per aforesaid provision, if Medical Board forms an opinion that termination is necessitated by diagnosis of substantial foetus abnormalities or in cases where medical practitioner in good faith is of opinion that termination of pregnancy is immediately necessary to save the life of pregnant woman. From perusal of the report, it is found that fetus is normal and there is no apparent abnormality that is in- compatible with life. Further medical board has also formed an opinion that pregnancy does not pose any grave risk to health of survivor i.e. prosecutrix. This is coupled with the opinion that termination of pregnancy at 30 weeks may be riskier to the survivor. Since termination of pregnancy is not permissible under the Act of 1971, therefore, writ petition has been filed under Article 226 of the Constitution of India seeking permission of High Court to terminate the pregnancy of a rape survivor who is minor mentally challenged. Survivor or sexual assault of rape victim or incest can get pregnancy terminated up to period of 24 weeks in accordance with the Act and Rules. 6. Explanation 2 to Section 3 lays down that where pregnancy is said to have been caused by rape, the anguish caused by pregnancy shall be presumed to constitute a grave injury to mental health of pregnant woman. Under the Act pregnancy can be terminated only up to 24 weeks and Legislature in its prudence did not permit termination of pregnancy beyond period of 24 weeks despite the fact that there is an explanation that survivor of rape victim is anguished by the pregnancy and same constitute injury to mental health of pregnant woman. Legislature has lifted the bar of length of pregnancy only in cases where pregnancy will cause risk to life of the woman and termination of pregnancy is immediately necessary to save life or in cases where there are substantial foetal abnormalities. 6. Legislature has lifted the bar of length of pregnancy only in cases where pregnancy will cause risk to life of the woman and termination of pregnancy is immediately necessary to save life or in cases where there are substantial foetal abnormalities. 6. Supreme Court in the case of A (Mother of X) Vs. State of Maharashtra and another reported in (2024) 6 SCC 327 :2024 SCC OnLine SC 835 has held that Medical Board while forming opinion must not restrict itself to criteria under Section 3(2-B), but must also evaluate physical and emotional well being of pregnant woman. Apex Court also held that woman is having reproductive freedom and right to get herself aborted under Article 21 of the Constitution of India, but matter is to be considered and risk is to be balanced by the Court and the authorities concerned. Woman is having reproductive autonomy and her consent is to be taken into consideration for termination of pregnancy. It has also been laid down that sole and only consideration which must weigh with Court is safety and welfare of the minor. However in said case permission was granted for termination of pregnancy but then parents want to go keep the pregnancy since victim has entered 31st week of pregnancy, therefore, orders allowing termination of pregnancy was recalled and direction was issued for her safe delivery and to give financial support. It was also held that in case rape victim or her parents desires to give child for adoption State Govt. is directed to facilitate said exercise. In case at hand rape survivor is having pregnancy of 30 weeks. By 30 weeks, brain of fetus is rapidly developing. Fetus can see and feel most of stumuli. All internal systems of fetus is developed. Lungs also developed by that time. Fetus control its body heat. All organs of the body of fetus is well formed and they move. Fetus respond to stumuli sound, pain and light. If child is born prematurely i.e. after 23 weeks it may be survive under intensive care. Heart has started beating and fetus can also breath within the body and excrete and other bodily functions are also active. Said information is available in medical journals and on Website. 7. Fetus respond to stumuli sound, pain and light. If child is born prematurely i.e. after 23 weeks it may be survive under intensive care. Heart has started beating and fetus can also breath within the body and excrete and other bodily functions are also active. Said information is available in medical journals and on Website. 7. Due to said reasons, Section 316 of Indian Penal Code (Section 92 of the Bhartiya Nagrik Suraksha Sanhita, 2023) prescribed punishment of culpable homicide, if death is caused of a quick unborn child. Quickening starts when foetal movements began in uterus i.e. at the age of 20-24 weeks. By that time child is alive and concious, therefore, his fundamental right to life under Article 21 of the Constitution of India cannot be totally ignored. Though pregnant woman has a right to abort her child under Article 21 of the Constitution of India and she is having reproductive freedom but said reproductive freedom has to be balanced with facts and circumstances of case and laws of the land. Pregnancy can be terminated up to 20 weeks with consent but thereafter elaborate procedure is prescribed in the Act of 1971 which cannot be completely ignored. 8. On going through the report, which has been produced by Medical Board no foetal abnormalities is found neither there is any risk to life of health survivor and it has been mentioned that termination of pregnancy at 30 weeks may be riskier to the survivor. In these circumstances, permission to terminate the pregnancy cannot be granted. Petition is dismissed. 9 . Directive Principles of State policy: Article 39 (f) of the Constitution of India provides that children are to be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. It is the duty of the State to see aforesaid facilities are to be provided to children. In this case, victim is a minor and mentally challenged and she is unable to bring up the child on her own without the support of the Government, therefore, State Government is directed to bear expenses of food, clothing, shelter and education of child till he attains the age of 18 years. In this case, victim is a minor and mentally challenged and she is unable to bring up the child on her own without the support of the Government, therefore, State Government is directed to bear expenses of food, clothing, shelter and education of child till he attains the age of 18 years. State Government will also facilitate the adoption of child by eligible parents if petitioner wants to give child in adoption and take all necessary steps. State Government will also bear expenses of delivery, food and safety of minor child and mother for a period of 3 months. 10. Writ Petition is disposed off. A typed copy of this order be sent to concerned Collector and Advocate General Office for compliance.