Ab (2021) vs State Of U.P. And 2 Others
2021 Latest Caselaw 11034 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 39
 

 
Case :- WRIT - C No. - 19783 of 2021
 

 
Petitioner :- Ab (2021)
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Manoj Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Deepak Verma,J.

Heard learned counsel for the petitioner and learned Standing Counsel for the State.

The petitioner is a victim of rape. She has prayed for a mandamus commanding the respondent authorities to permit her to terminate her undesirable pregnancy.

In brief, the case set up in the writ petition is that an FIR was lodged by the brother of the petitioner on 1.5.2021, under Section 363, 366, 506 IPC, alleging that she had been abducted by three named accused and two unknown persons. The police after investigation had submitted a charge sheet on 19.6.2021 against accused persons under Section 366, 376 IPC. The trial is stated to be pending. The petitioner has alleged that she is suffering from extreme mental agony caused by unwanted pregnancy. Reliance has been placed upon Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the 'Act'), in contending that the pregnancy had resulted in great anguish to her and thus involves grave risk to her mental and physical health. 

On 27.8.2021, after hearing counsel for the petitioner and learned Standing Counsel, we passed the following order: -

"On oral mention made by learned counsel for the petitioner that the matter is extremely urgent and shall be rendered infructuous, if not taken immediately, the file was called for.

Heard Sri Manoj Kumar Srivastava, learned counsel for the petitioner and Sri Mohan Srivastava, learned Standing Counsel and Sri Sandeep Kumar Singh (State Law Officer) on behalf of respondents.

The petitioner claims to be a rape victim. She has approached this Court for a mandamus directing the respondents to permit her to terminate her undesirable pregnancy.

Reliance has been placed on Explanation-I to sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act') in contending that the pregnancy has resulted in such extreme anguish to her that it constitutes grave injury to her mental health.

As per High School mark-sheet, the date of birth is 01.07.1997 and thus, she is a major. Reliance has also been placed on the amendment made to the 'Act' by the Medical Termination of Pregnancy (Amendment) Act, 2021, dated 25.03.2021 whereby the outer limit for abortion has been enhanced to twenty four weeks.

It is submitted that as per report of medical examination held on 20.05.2021 at District Women Hospital, Rampur, the age of fetus was eight weeks and one day at that time and as of date, the age of fetus is around twenty two weeks, two days i.e. less than twenty four weeks.

Section 3 of the 'Act' permitted termination of pregnancy in accordance with the provisions of the said Act. The outer limit prescribed for termination of pregnancy was twenty weeks. The same has been increased to twenty four weeks by the Amendment, Act of 2021. The Explanation-I to Section 3 of the Act, permits termination of pregnancy of a victim of rape by raising a presumption that the anguish caused by pregnancy in such cases constitute a grave injury to her mental health.

Learned counsel for the petitioner states that it would be convenient for the petitioner to get her pregnancy terminated at Aligarh which is near Rampur.

Accordingly, we request the Vice Chancellor, Aligarh Muslim University, Aligarh to constitute a Board of four experts one each in the field of Gynecology, Psychiatry, Radiology or Sonology and Pediatrics.

The first Additional District Judge, Aligarh shall act as a member cum co-ordinator of the medical Board.

The petitioner shall present herself before the Medical Board for medical examination day after tomorrow i.e. 29.08.2021 at 11 am. The Board after carrying out medical examination of petitioner, shall submit its opinion/recommendation in sealed cover to the First Additional District Judge, Aligarh, who shall forthwith transmit the same to this Court. The opinion/recommendation of the Board shall inter-alia be on the following aspects:

a) Length of pregnancy;

b) Whether continuance of pregnancy would involve any risk to the life of the petitioner;

c) Whether continuance of pregnancy would otherwise result in any grave injury to the petitioner;

d) Whether there is substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

The report/recommendation of the Board shall positively be transmitted to this Court by 01.09.2021.

Sri Mohan Srivastava, learned Standing Counsel shall communicate this order to the Senior Superintendent of Police, Rampur, who shall provide full security to the petitioner and person accompanying her to medical college, Aligarh for medical examination. Sri Shashank Shekher Singh, learned counsel for Aligarh Muslim University, Aligarh, who on our request is present, has undertaken to communicate the instant order to the Vice Chancellor, Aligarh Muslim University, Aligarh within 24 hours so that it is duly complied with.

Office is directed to provide a free copy of this order to Sri Mohan Srivastava, learned Standing Counsel and Sri Shashank Shekher Singh, learned counsel for the Aligarh Muslim University, Aligarh for due communication to the authorities. The Registrar (Compliance) shall communicate the instant order to Additional District Judge, Aligarh.

Put up as fresh on 01.09.2021.

Office is directed to substitute the name of the petitioner with AB (2021) in the writ petition, in computer database and in certified copy or any other documents that is issued or put in public domain so that the identity of the petitioner does not get disclosed."

Pursuant to our above order, the petitioner presented herself for medical examination on 29.8.2021 at Jawahar Lal Nehru Medical College Hospital, AMU, Aligarh, before a Medical Board constituted for such purpose by the Vice Chancellor. The report of the Medical Board has been submitted in a sealed cover through 1st Additional District Judge, Aligarh. The report of the Medical Board is as follows: -

A. Length of pregnancy?

Ans: As per last menstrual period - 20 weeks 4 days

As per USG parameters - 21 weeks 02 days

B. Whether continuance of pregnancy would involve any risk to the life of the petitioner?

Ans. Based on history and examination there are no apparent risk factors that may pose significant risk to her life at present. However, her urine examination shows persistent ketone bodies which is likely to be due to poor oral intake (since she travelled from Rampur to Aligarh and had motion sickness as told by her). For this abnormal lab report she is advised for observation and management.

C. Whether continuance of pregnancy would otherwise result in any grave injury to the petitioner?

Ans: As per history and mental status examination, she had a traumatic experience and is under stress but she doesn't have any diagnosable mental health problem at present.

However, she may be at high risk to develop mental health problems (like Depression, Anxiety Disorders) as she does not want to continue her pregnancy. This may lead to mental disorder necessitating medicines with potential harmful effect on her growing fetus and after delivery to her new born child as well.

D. Whether there is a substantial risk that if the child were born it would suffer from any serious physical or mental abnormality?

Ans: Based on the examination and USG report there is no physical abnormality in the fetus at present.

As per the evidence in medical literature, children born out of rape are more likely to suffer from physical and mental health problems (like Low Birth Weight Failure to thrive, Depression, Personality Disorders) due to poor mother-child relationship, abusive parenting or neglect by the mother. Also children born out of rape face great social stigma and are other ostracized by families and communities.

Impression: The member of the board concluded that at present there is no risk to the life of the victim or physical abnormality in the fetus. As told to the board, the victim does not want to continue her pregnancy and compelling her to do so may pose a risk for developing mental health problems in her and consequent physical and mental health problems to the child.

(Dr. Seema Hakim)				    (Mr. Shahid Raza) 
 
Professor						1st Additional Distt Judge
 
(Chairman of the Board)        (Member-cum-Coordinator of the Board)
 
Dept. of Obst. & Gynaecology				   Aligarh
 
J.N. Medical College
 

 

 
(Dr. Shagufta Wahab)					   (Dr. Uzma Firdaus)
 
Professor						            Dept. of Paediatrics
 
Dept. of Radiodiagnosis				    J.N. Medical College Hospital
 
J.N. Medical College
 

 

 
(Dr. Mohd. Reqazuddin)
 
Dept. of Phychaitry
 
J.N. Medical College
 

 

It is clear from the above report that the length of pregnancy as per last menstrual period was 20 weeks 4 days and as per ultrasonography parameters, 21 weeks 02 days, thus, less than 24 weeks (the outer limit prescribed under Section 3(2) of the Act). The report also clearly states that in case of continuance of pregnancy, the petitioner will be at higher risk of developing mental health problems as she does not want to continue her pregnancy. The child, if born, is likely to suffer from physical and mental health problems due to various reasons mentioned in the report. The report also clearly opines that since the petitioner does not want to continue her pregnancy, compelling her to do so, may pose a risk to her mental health and consequent physical and mental health problems to the child.

Section 3 of the Act provides that a pregnancy could be terminated by a registered medical practitioner, if he is of opinion, formed in good faith, that continuance of the pregnancy would involve a risk to the life of pregnant woman, or grave injury to her physical or mental health, or there is a substantial risk of child suffering from physical or mental abnormalities, if born. The first explanation to sub-section 2 of Section 3 creates a legal presumption that pregnancy caused by rape would result in anguish to the pregnant woman and would constitute a grave injury to her mental health.

In Suchita Srivastava & Others vs. Chandigarh Administration, AIR 2010 SC 235, the Supreme Court laid down two tests, namely the 'best interests' test and the 'substituted judgment' test for determining whether the pregnancy should be permitted to be continued or not. The 'best interest' test requires the court to ascertain the course of action which would serve the best interest of the person in question. The 'substituted judgment' test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so.

In the instant case, concededly the victim as per high school mark sheet is major and thus the 'best interest' test has to be applied to the facts of the instant case. 

Applying the said test, we find that apart from the presumption that is engrafted under the first Explanation to sub-section 2 of Section 3 of the Act, the report of Medical Board is unequivocally in favour of fetus being aborted to prevent risk to the life of the petitioner. We accordingly allow and permit termination of the pregnancy. 

The pregnancy shall be terminated by a registered medical practitioner at a hospital established or maintained by Government or a place for the time being approved for the purpose of this Act by Government, as contemplated under Section 4 of the Act. The hospital where the pregnancy is terminated shall maintain confidentiality, as required under Section 5-A of the Act.

We further direct that in terms of the request made by the petitioner by filing supplementary affidavit, the tissues and blood samples of the fetus shall be preserved by the hospital where pregnancy is terminated. It shall be forwarded to the nearest Government approved forensic laboratory for preservation and testing, as may be directed by the trial court seized of the matter.. The permission given hereinabove for termination of pregnancy shall last only until the fetus attains age of 24 weeks and consequently, the petitioner is directed to present herself for termination of pregnancy at recognized medical centre, as stipulated under Section 4 of the Act, well before expiry of 24 weeks, failing which the instant order shall automatically lapse.

The Registrar General is directed to preserve the report of Medical Board in sealed cover for future reference, if needed.

The petition stands disposed of accordingly.

(Deepak Verma, J.)  (Manoj Kumar Gupta, J.)

Order Date :- 1.9.2021

Jaideep/-