The Madhya Pradesh High Court, while allowing termination of pregnancy of a 19-year-old woman, has held that it is not necessary to prove the allegation of rape to invoke Section 3 of the Medical Termination of Pregnancy Act, 1971. Since the prosecutrix satisfied the requirements of Section 3(2)(b)(i), the Court permitted termination of pregnancy subject to prosecutrix consenting for the termination in writing.
Brief Facts
An appeal was filed assailing the order passed by learned Single Judge whereby the writ petition filed by appellant/petitioner seeking permission to terminate her pregnancy with a direction to respondent No.2 therein to follow the procedure of termination of pregnancy, has been rejected. Appellant/ prosecutrix (19 years) had a relationship with her neighbour accused and as a result of which she got pregnant. The prosecutrix claimed that the accused promised to marry her and on this promise, she entered into this marriage. However, the accused refused to marry her and he also threatened her that if she lodged an FIR, she along with her family would be killed.
She filed a complaint and a case was registered u/Ss.376, 376(2)(n), 506 of Indian Penal Code, 1860 and u/S. 5/6 of Protection of Children from Sexual Offences Act against the accused and the matter was investigated. During the investigation, the appellant/ prosecutrix filed the writ petition seeking to terminate her pregnancy and respondent No. 2 be directed to follow the procedure of termination of pregnancy but by the impugned order, her prayer was rejected by learned Single Judge on the ground that the appellant/prosecutrix herself involved in consensual sex with full knowledge about the consequences of such act and the allegations made in the FIR do not prima facie make out a case of consent obtained by misrepresentation of fact, therefore, medical termination of pregnancy cannot be permitted. Hence, this appeal was filed.
The Court after perusing Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 called for the latest health status report of the prosecutrix as to whether termination of pregnancy of the appellant can be acceded to or not. The report of the medical practitioners stated that termination of pregnancy can be acceded to after the hemoglobin levels are normal and after due consent of the prosecutrix.
Reasoning and Decision of the Court
The Court noted that the reason assigned by learned Single Judge for rejecting the petition was the sexual intercourse prima facie appeared, from the prosecution story, to be consensual. The prosecution case is of rape against the prosecutrix aged 19 years, who alleged that though she entered into a sexual relationship with the accused with consent but the said consent was based on the promise extended by the accused to marry her in the future.
However, the accused refused to marry her. The Court noted that whether the promise was false from the very beginning or it was a case of breach of promise, is a fact to be established by adducing evidence, which stage is yet to come. Thus, the learned Single Judge ought not to have presumed the presence of the element of consent as a dissuading factor.
The Court noted that one of the objects behind the 1971 Act is to prevent indiscriminate and unwarranted termination of pregnancies inter alia for curing one of the social maladies of female foeticide. It was opined that Section 3 overrides the provision of IPC and, thus grants immunity from penal provision to medical practitioners who terminate pregnancy after following the due process prescribed in the said provision and subject to fulfillment of conditions mandated therein. The Court also noted that Subsection (2) of Section 3 of the 1971 Act permits the medical practitioner to terminate pregnancy falling into two categories. First, when the pregnancy does not exceed 12 weeks subject, of course, to the satisfaction of sub-section (4) of Section 3 which prohibits termination of pregnancy of a minor woman or a mentally unwell woman without the consent of her guardian and further prohibits termination of pregnancy of any other woman of 18 or above years without her consent. The second category of cases where the registered medical practitioner can terminate the pregnancy is those where pregnancy exceeds 12 weeks but does not exceed 20 weeks subject to fulfillment of certain conditions.
Testing the factual matrix attending the instant case on the anvil of provision of Section 3 of the 1971 Act, it was opined that the prosecutrix has alleged that she was subjected to rape and the pregnancy arises from the said incident of rape and since the period of pregnancy is below 20 weeks and she admittedly is subjected to grave injury to her physical and mental health due to said rape, this Court cannot stand in the way of the prosecutrix in getting her pregnancy aborted/ terminated.
Held
The Court added that the Scheme of the 1971 Act is such that it allows triggering of Section 3 provision inter alia in cases where rape is alleged. It is not necessary that the allegation is proved before Section 3 can be invoked. Consequently, since the prosecutrix satisfied the requirements of Section 3(2)(b)(i), the Court permitted termination of pregnancy subject to prosecutrix consenting for the termination in writing.
Case Details
Case Name: Prosecutrix v. The State of MP and Others
Date of Decision: August 27, 2021
Bench: Hon'ble Justice Deepak Kumar Agarwal, Justice Sheel Nagu
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