Cd (2021) vs State Of U P And Another
2021 Latest Caselaw 11050 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 39
 

 
Case :- WRIT - C No. - 19983 of 2021
 

 
Petitioner :- CD (2021)
 
Respondent :- State Of U P And Another
 
Counsel for Petitioner :- Nipun Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Deepak Verma,J.

Heard Sri Nipun Singh, learned counsel for the petitioners and Sri Manish Goel, learned Additional Advocate General, Sri Suresh Singh, learned Additional Chief Standing Counsel, assisted by Sri Hari Keshav, learned Standing Counsel, for the respondents.

The first petitioner is a victim of gang rape. She has prayed for a mandamus commanding respondent 2 to permit her to terminate her unwanted pregnancy.

In brief, the case set up in the writ petition is that petitioner no. 1 while on her way to school, was kidnapped. Petitioner 2, who is father and natural guardian of petitioner no. 1, got registered a FIR (Case Crime No. 0036 of 2021) on 29.1.2021, under Section 363 IPC, against one Manjit. When even after expiry of five months, the police failed to trace out petitioner no. 1, a writ petition bearing number 4571 of 2021 was filed before this Court, wherein direction was given to the police authorities to ensure recovery of the victim girl. On 22.7.2021, petitioner no. 1 was recovered from the custody of named accused. She was produced before Child Welfare Officer, Bulandshahr and after completing legal formalities, her custody was handed over to her parents. It has transpired during investigation that she was ravaged by named accused Manjit and two others. On 24.7.2021, petitioner no. 1 got herself examined at B.B.D. Government Hospital, Bulandshahr and according to ultrasonography report, her pregnancy was of 14 weeks at that time. Her age has been determined to be sixteen years by CMO, Bulandshahr, as is evident from a certificate issued in that regard dated 13.7.2021. The investigating officer upon discovery of evidence regarding rape added Sections 376, 507 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act 2012. The matter is still under investigation. The petitioner is stated to be 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, this Court after hearing counsel for the petitioners and learned Standing Counsel, passed the following order: -

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

Heard Sri Nipun Singh, learned counsel for the petitioners and Sri Manish Goel, learned Additional Advocate General assisted by Sri Mohan Srivastava, learned Standing Counsel and Sri Sandeep Kumar Singh (State Law Officer) on behalf of respondents.

The petitioner no. 1 claims to be a rape victim. She has approached this Court, through her guardian-petitioner no. 2 (father) 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 radiological report of Chief Medical Officer, Bulandshahr, the date of birth of victim is around 16-17 years and thus, she is a minor. 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 permissibility has been enhanced to twenty four weeks.

It is submitted that as per report of medical examination held on 24.7.2021 at B.B.D. Government Hospital, Bulandshahr, the age of fetus at that time was 14.6 weeks meaning thereby that as of date the pregnancy is of about nineteen 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 Lala Lajpat Rai Memorial Medical College, Meerut.

Accordingly, we direct the Principal, Lala Lajpat Rai Memorial Medical College, Meerut 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, Meerut shall act as a member cum co-ordinator of the medical Board.

The petitioner shall present herself before the Medical Board for medical examination on 31.08.2021 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, Meerut, 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 no. 1;

c) Whether continuance of pregnancy would otherwise result in any grave injury to the petitioner no.1;

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 02.09.2021.

Sri Mohan Srivastava, learned Standing Counsel shall communicate this order to the Senior Superintendent of Police, Bulandshahr, who shall provide full security to the petitioner and person accompanying her to medical college, Meerut for medical examination. Sri Manish Goel, learned Additional Advocate General, who on our request is present, has undertaken to communicate to the instant order to the Principal, Lala Lajpat Rai Memorial Medical College, Meerut 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 for due communication to the authorities. Registrar (Compliance) shall communicate the instant order to Additional District Judge, Meerut.

Put up as fresh on 03.09.2021.

Office is directed to substitute the name of the petitioner with CD (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 31.8.2021 at Lala Lajpat Rai Medical College, Meerut, before a Medical Board constituted for such purpose. The report of the Medical Board has been submitted in a sealed cover through 1st Additional District Judge, Meerut. The report of the Medical Board is as follows: -

A. Length of pregnancy:- on the basis of last menstrual period, examination and ultrasonography period of gestation seems to be 20.3 weeks.

B. Whether continuance of pregnancy would involve any risk to life of the petitioner no. 1: -

As such petitioner is not suffering from any organic disease but indirectly there are risks to life because: -

i. Teenager pregnancies have higher risk of complications like anemia, hypertension, haemorrhage, malnutrition, sexually transmitted infections (STI), cervical cancers, etc.

ii. More prone for depression, psychosis and suicidal tendencies.

C. Whether continuance of pregnancy would otherwise result in any grave injury to petitioner no. 1.

YES, Anguish caused by sexual assault would result in grave injury to her mental health.

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

Couldn't be commented.

The Medical Board recommends medical termination of pregnancy of petitioner no. 1 CD (2021).

     Dr. Tarun Pal					    Dr. Yasmeen Usmani 
 
Asst. Professor and Head			   Assoc. Prof. And Head
 
Dept. of Psychiatry				  Dept. of Radiodiagnosis
 
LLRM Medical College, Meerut	   LLRM Medical College, Meerut
 
Member, Medical Board				  Member, Medical Board
 

 

 
    Dr. Vijay Jaiswal 				       Dr. Urmila Karya
 
   Professor and Head			              Professor and Head 
 
   Dept. of Paediatrics				  Dept. of Obst. & Gynae.
 
LLRM Medical College, Meerut	   LLRM Medical College, Meerut
 
Member, Medical Board				  Member, Medical Board
 

It is clear from the above report that the length of pregnancy as per last menstrual period, examination and ultrasonography period of gestation has been reported to be 20.3 weeks, 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. The report clearly opines that in case the pregnancy is permitted to continue, there is risk to the life of the petitioner and that the unwanted pregnancy had resulted in grave injury to the mental health of the petitioner.

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, the petitioner being a minor, the 'substituted judgment' test would apply. As noted above, the petitioner who is only sixteen years of age, does not want to continue with her pregnancy. The medical opinion is unequivocally in favour of fetus being aborted to prevent risk to the life of the petitioner. First Explanation to sub-section 2 of Section 3 of the Act engrafts a presumption that where a pregnancy has resulted on account of rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. The second petitioner who is father and natural guardian of the first petitioner, has consented to the termination of pregnancy, having joined the instant petition as a co-petitioner.

In totality of the facts and circumstances of the instant case, we are of considered opinion that petitioner no. 1 should be permitted to terminate the unwanted pregnancy. We accordingly allow and permit the 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.

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 :- 3.9.2021

Jaideep/-