Bombay High Court
X (Since Minor Through Her Father) vs The State Of Maharashtra And ... on 13 October, 2017
Bench: R.M. Borde
(Judgment) (1) W.P. No. 12408 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 12408 of 2017
District : Aurangabad
"X"
(Since minor through her father) .. Petitioner.
versus
The State of Maharashtra & another. .. Respondents.
...........
Mr. Deepak K. Rajput, Advocate, for the petitioner.
Mr. S.P. Sonpawale, Asst. Government Pleader, for
the respondents.
...........
CORAM : R.M. BORDE &
SMT. VIBHA KANKANWADI, JJ.
DATE : 13TH OCTOBER 2017
JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :
01. Rule. Rule made returnable forthwith.
02. Heard finally with the consent of learned
counsel for the respective parties.
03. The unfortunate victim who has already
suffered physical abuse and mental torture has
approached this Court seeking direction in the nature
of writ of mandamus directing respondent no. 3 to
carry out termination of unwanted pregnancy which is
(Judgment) (2) W.P. No. 12408 of 2017
result of physical abuse thrust against her.
04. The petitioner contends that she is the
victim in Crime No. I-211/17 registered with Sillod
Police Station, Sillod, District Aurangabad, which has
been registered on 03.10.2017. After her medical
examination was conducted during the course of
investigation, it is found that she is pregnant and
length of the pregnancy is beyond 20 weeks.
05. Taking into consideration the contentions
raised in the petition, by order dated 10.10.2017, we
had directed and referred her for medical examination
before the Board constituted at Government Medical
College & Hospital, Aurangabad.
06. Petitioner, at her request, was referred for
medical examination to the Board constituted at
Government Medical College and Hospital, Aurangabad.
Petitioner was medically examined by five members
Expert Committee constituting of --
1) Dr. Sonali Deshpande (Chairman), HOD Dept. of OBGY,
2) Dr. P.S. Patil (Member), Prof. & HOD Paediatrics.
3) Dr. Varsha Rote (Member) Prof. & HOD, Radiology.
4) Dr. Suhas Jewalikar (Member) HOD, Anaesthesia.
5) Dr. Sanjay Ghuge (Member) HOD, Psychiatry.
07. The Committee has recorded following findings
in the report tendered to this Court :
(Judgment) (3) W.P. No. 12408 of 2017
1. From general examination she has no active
medical complaints.
2. On examination her vital parameters are within
normal limits. With of 20 to 22 weeks of
pregnancy.
3. Ultrasonographic examination suggestive of
single live intrauterine foetus of approximate 20
weeks 2 + or - days.
4. Psychiatric examination, Clinically she is of
average intelligence. No active current
psychopathology. Her concept and judgement are
intact. She is aware about the incident and the
consequences about the continuation of pregnancy.
08. The conclusions of the Committee are as
follows :
1. Current pregnancy, on clinical and
ultrasonographical examination is around 20 weeks
2 + or - 10 days by gestation. No gross lethal
congenital anomalies in the foetus.
2. Her Physical and Mental Health is within
normal limits.
3. Risk of termination of pregnancy is within
normal acceptable limits.
09. The Medical Termination of Pregnancy Act,
1971 provides for termination of certain pregnancy by
the registered Medical Practitioner. Sections 3, 4
(Judgment) (4) W.P. No. 12408 of 2017
and 5 of the Act are relevant which read thus :
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
twelve weeks, if such medical practitioner is, or
(b) where the length of thepregnancy exceeds twelve
weeks but does not exceed twenty weeks, if not less than
two registered medical practitioners are, of 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 such physical or mental abnormalities
as to be seriously handicapped.
Explanation I - Where any pregnancy is alleged by the
pregnant woman to have been caused by rape, the anguish
caused by such pregnancy shall be presumed to constitute a
grave injury to the mental health of the pregnancy woman.
Explanation II - Where any pregnancy occurs as a result of
failure of any device or method used by any married woman
or her husband for the purpose of limiting the number of
children, the anguish caused by such unwanted pregnancy
may be presumed to constitute a grave injury to the mental
health of the pregnancy woman.
(3) in determining whether the continuance of a
pregnancy would involve such risk of injury to the health as
is mentioned in sub-section (2), account may be taken of
the pregnant woman's actual or reasonable foreseeable
environment.
(Judgment) (5) W.P. No. 12408 of 2017
(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.
4. Place where pregnancy may be terminated - No
termination of pregnancy shall be made in accordance with
this Act at any place other than -
(a) a hospital established or maintained by Government ,
or
(b) a place for the time being approved for the purpose
of this Act by Government or a District Level Committee
constituted by that Government with the Chief Medical
Officer or District Health Officer as a Chairperson of the said
Committee.
Provided that the District Level Committee shall
consist of not less than three and not more than five
members including the Chairperson, as the Government
may specify from time to time.
5. Sections 3 and 4 when not to apply -
(1) The provisions of section 4, and so much of of the
provisions of sub-section (2) of section 3 as relate to the
length of the pregnancy and the opinion of not less than
two registered medical practitioners, shall not apply to the
termination of a pregnancy by a registered medical
practitioner in a case where he is of opinion, formed in good
faith, that the termination of such pregnancy is immediately
necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian
Penal Code (45 of 1860), the termination of pregnancy by
person who is not a registered medical practitioner shall be
an offence punishable with rigorous imprisonment for a
term which shall not be less than two years but which may
extend to seven years under that Code, that Code shall, to
this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other
than that mentioned in section 4, shall be punishable with
(Judgment) (6) W.P. No. 12408 of 2017
rigorous imprisonment for a term which shall not be less
than two years but which may extend to seven years.
Explanation 1 - For the purposes of this section, the
expression "owner" in relation to a place means any person
who is the administrative head or otherwise responsible for
the working or maintenance of a hospital or place, by
whatever name called, where the pregnancy may be
terminated under this Act.
Explanation 2 - For the purposes of this section,so much of
the provisions of clause (d) of section 2 relate to the
possession, by registered medical practitioner, of experience
or training in gynaecology and obstetrics shall not apply.
10. Although section 3 of the Act provides the
limit of 12 weeks for medically terminating pregnancy
by a medical practitioner and, where the length of
pregnancy exceeds 12 weeks but does not exceed 20
weeks and if, not less than two medical practitioners
are of opinion, formed in good faith, the continuance
of pregnancy would involve a risk to the life of the
pregnant woman or grave injury to her physical or
mental health or that there is a substantial risk that
if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously
handicapped, it would be permissible to terminate the
pregnancy. It must be noted that section 5 of the Act
is not controlled by the limitation in respect of
duration of pregnancy contained in sections 3 and 4 of
the Act. If in the opinion of medical experts,
arrived at in good faith, the termination of pregnancy
is immediately necessary to save the life of the
pregnant woman, such a pregnancy can be terminated.
It also must be noted that Explanation 1 to section 3
records that where the pregnancy is alleged by the
(Judgment) (7) W.P. No. 12408 of 2017
pregnant woman to have been caused by rape, the
anguish caused by such pregnancy can be presumed to
constitute a grave injury to the mental health of the
pregnant woman. Sub-section (1)(b)(i) of section 3
refers to the risk involved to the pregnant woman
which includes even injury in respect of mental
health. There shall not be reason to doubt that since
pregnancy in the instant matter is as a result of
offence of rape, it causes a huge mental trauma and
such inference is in consonance with explanation 1 to
section 3(1) of the Act of 1971.
11. Honourable Supreme Court in the case of
Suchita Srivastava Vs. Chandigarh Administration
reported in 2009(9) SCC 1, has observed that 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
choice 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. In the instant
matter, when the victim was before the Medical Board,
she had communicated (It appears that while indicating
the psychiatric examination), that she has no other
option than to commit suicide if she is forced to
continue pregnancy. It must be noted that the
pregnancy carried by petitioner is as a result of
physical abuse thrust against her and that she has a
choice whether to continue with such pregnancy which
(Judgment) (8) W.P. No. 12408 of 2017
is result of offence against her person. The freedom
of making choice by a woman which is integral part of
personal liberty cannot be taken away. It shall also
be taken into consideration that besides physical
injury, the legislature has widened the scope of term
injury by including injury to mental health of a
pregnant woman. If continuation of pregnancy is
harmful to mental health of a pregnant woman, then it
shall be construed as a good legal ground for
permitting her to terminate pregnancy and, since in
the instant matter, pregnancy is alleged to be as a
result of physical abuse, in view of section 5 of the
Act of 1971, the choice of the victim of rape of
terminating unwanted pregnancy needs to be respected.
Observations made by Division Bench of this Court in
Suo Motu Public Interest Litigation no. 1/2016 in the
matter of High Court on its own motion Vs. The State
of Maharashtra reported in LEX(BOM) 2016 9 page 114,
in paragraph no. 13 of the judgment are relevant for
consideration which read thus :
13. A woman irrespective of her marital status can be
pregnant either by choice or it can be an unwanted
pregnancy. To be pregnant is a natural phenomenon
for which woman and man both are responsible.
Wanted pregnancy is shared equally, however, when it is
an accident or unwanted, then the man may not be
there to share the burden but it may only be the woman
on whom the burden falls. Under such circumstances, a
question arises why only a woman should suffer. There
are social, financial and other aspects immediately
attached to the pregnancy of the woman and if
pregnancy is unwanted, it can have serious
repercussions. it undoubtedly affects her mental health.
The law makers have taken care of helpless plight of a
woman and have enacted Section 3(2)(b)(i) by
incorporating the words "grave injury to her mental
(Judgment) (9) W.P. No. 12408 of 2017
health". It is mandatory on the registered medical
practitioner while forming opinion of necessity of
termination of pregnancy to take into account whether
it is injurious to her physical or mental health. While
doing so, the woman's actual or reasonable foreseeable
environment may be taken into account.
12. In the matter of Appellant "X" Vs. Union of
India and others reported in AIR 2016 SC 3525, the
Honourable Apex Court considering the provisions of
section 5 of the Act of 1971, permitted termination of
pregnancy of duration of 23 to 24 weeks. It is
observed in the judgment that section 3 leaves no room
for doubt that it is not permissible to terminate
pregnancy after 20 weeks however, section 5 of the Act
lays down exception to section 3. It is further
observed that termination of pregnancy which is
necessary to save life of a pregnant woman is
permissible. The Honourable Apex Court in the matter
of Appellant X Vs. union of India and others reported
in AIR 2017 SC 1055, granted permission for
termination of pregnancy of duration of 24 weeks since
it was noticed that the foetus could not survive. In
the instant matter, apart from danger to the life of
the petitioner, this Court has to take note of the
psychological trauma the petitioner is undergoing as a
result of carrying unwanted pregnancy. As has been
stated above, the freedom of petitioner to make choice
to terminate unwanted pregnancy which is result of
physical abuse needs to be respected and such freedom
of choice shall have to be construed as integral part
of her personal liberty. In the instant matter, the
(Judgment) (10) W.P. No. 12408 of 2017
medical board has reported that risk involved in
terminating pregnancy is within normal range.
Physical health of petitioner is normal and she is
above 18 years of age. In the circumstances, we do
not notice any impediment in permitting petitioner to
terminate unwanted pregnancy.
13. Learned counsel for petitioner, states on
instructions, that the petitioner would like to
complete the procedure of termination of pregnancy at
Government Medical College & Hospital, Aurangabad.
The Dean of Government Medical College & Hospital,
Aurangabad is thus directed to forthwith complete the
procedure of termination of pregnancy of petitioner
under supervision of the team of medical experts. Two
members of the team shall be experts in Obstetrics and
Gynecology.
14. Since according to petitioner, the pregnancy
carried by her is as a result of offence of rape,
complaint has already been lodged and the matter is
under investigation, the Dean, Government Medical
College & Hospital, Aurangabad is directed to preserve
tissue sample and blood sample of the foetus for
carrying out necessary medical tests including DNA,
finger printing/mapping. The Investigating Officer
conducting investigation in the matter shall ensure
that the samples of tissues and blood etc. shall be
forwarded to the Regional Forensic Laboratory,
Aurangabad, for DNA, Finger printing/mapping and for
carrying necessary tests and the samples and report
(Judgment) (11) W.P. No. 12408 of 2017
shall be preserved for the purpose of trial of the
offence.
15. Rule is accordingly made absolute. No costs.
( Smt. Vibha Kankanwadi ) ( R.M. Borde )
JUDGE JUDGE
...........
puranik / WP12408.17
