Bombay High Court
Sakshi D/O Santosh Dalvi vs The State Of Maharashtra, Thr. The ... on 4 February, 2022
Bench: S.B. Shukre, Anil Laxman Pansare
24-wp-543-22- 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 543 OF 2022
PETITIONER :- Ms X.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, through the
Principal Secretary, Public Health
Services, Mantralaya, Mumbai-23.
2. District Hospital Wardha, Mahadev-Pura,
Wardha.
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Ms.S.H.Bhatia, counsel for the petitioner.
Mr.N.S.Rao AGP for the respondents.
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CORAM : SUNIL B.SHUKRE &
ANIL L. PANSARE, JJ.
DATE : 04.02.2022.
ORAL J U D G M E N T (Per :Sunil B.Shukre, J.)
Heard.
2. Opinion of the Medical Board tendered across the bar
is taken on record. It is a copy of the opinion. For identification
purpose, it is marked as Document-A collectively.
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3. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
4. The petitioner contends that she is a victim of crime
of repeated instances of rape committed during the period from
13.08.2021 to 24.01.2022 in respect of which, upon a complaint
made by her, Police Station Ramnagar, Wardha has registered an
offence punishable under section 376 (2)(n) of the Indian Penal
Code and the investigation is going on. The offence has been
registered on 24.01.2022.
5. The petitioner states that as a result of repeated acts
of rape, she got conceived and presently her pregnancy has ran
into 25-26 weeks. The petitioner contends that continuation of
such a pregnancy is a continuous cause of anguish for her and it is
affecting her mental health. She further submits that if this
pregnancy results in delivery of a child, it would only add to the
injury already caused to her mind. These are the submissions
made by the petitioner through her learned counsel.
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6. Learned AGP submits that if the parameters of Section
3 and the provisions of Section 4 of the Medical Termination of
Pregnancy Act, 1971 prescribing the procedure are followed, this
petition can be allowed. In support, he places reliance upon the
opinion of the Medical Board.
7. Section 3(2)(b) and Section 3(4)(a) of the Medical
Termination of Pregnancy Act, 1971 as amended by the Medical
Termination of Pregnancy (Amendment) Act, 2021, which has
been brought into force with effect from 25.03.2021 and also
Section 5(A) thereof as amended by Medical Termination of
Pregnancy (Amendment) Act, 2021 are relevant. Section 3(2)(b)
along with explanations and Section 3(4)(a) and section 5(A) are
reproduced as under :
"Sec.3. When Pregnancies may be terminated by
registered medical practitioners - (1) ......
(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered
Medical Practitioner, -
(a) .......
(b) Where the length of the pregnancy exceeds
twenty weeks but does not exceed twenty four
weeks in case of such category of woman as may be
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prescribed by rules made under this Act, if not less
than two registered medical practitioners are, of the
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 any serious physical or
mental abnormality.
Explanation 1 - For the purposes of clause ( a),
where any pregnancy occurs as a result of failure of
any device or method used by any woman or her
partner for the purpose of limiting the number of
children or preventing pregnancy, the anguish
caused by such pregnancy may be presumed to
constitute a grave injury to the mental health of the
pregnant woman.
Explanation 2 - For the purposes of clauses (a)
and (b), where any pregnancy is alleged by the
pregnant woman to have been caused by rape, the
anguish caused by the pregnancy shall be presumed
to constitute a grave injury to the mental health of
the pregnant woman.
(3) ......
(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.
Sec.5A. (1) No registered medical
practitioner shall reveal the name and other
particulars of a woman whose pregnancy has been
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terminated under this Act except to a person
authorised by any law for the time being in force.
(2) Whoever contravenes the
provisions of sub-section (1) shall be punishable
with imprisonment which may extend to one year,
or with fine, or with both."
8. It is clear from the above referred provisions that if
the pregnancy exists for more than 24 weeks and in the opinion
of the Registered Medical Practitioners formed in good faith,
continuation of such pregnancy would involve a risk to the life of
the pregnant woman or grave injury to her physical or mental
health, the pregnancy can be medically terminated. It is also clear
that where any pregnancy is alleged by any pregnant woman to
have been caused by rape, the anguish caused by such pregnancy
is presumed to constitute a grave injury to the mental health of
the pregnant woman. Now, if we consider the opinion of the
Medical Board, we find that the requirements of section 3(2)(b)
are fulfilled in this case. The Medical Board has opined that as the
girl is unmarried, constitution of pregnancy will harm the girl,
physically as well as mentally and if the baby is delivered, it will
not get any proper care. In addition to this, it is an admitted fact
that the pregnancy has been caused by the rape and therefore, the
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presumption of anguish and causing of grave injury to mental
health is already there in favour of the petitioner.
8. We are supported in our such view by following
cases:-
(1) "ABC" Vs. State of Maharashtra and ors. reported in
2019 (5) Mh.L.J.(Cri.) 731,
(2) Sumaiya Imran Shaikh and another Vs. State of
Maharashtra and ors. reported in 2019 SCC OnLine
Bom 4661,
(3) Sunaina Avadhesh Prasad Vs. State of Maharashtra and
ors reported in 2020 SCC OnLine Bom. 7362,
(4) Rescue Foundation through its Superintendent Sharda
Khulat and anr Vs. State of Maharashtra and ors.
reported in 2021 SCC OnLine Bom 1384,
(5) Pramod A. Solanke Vs. Dean of B.J.Govt. Medical
College and Sasoon Hospital, Pune reported in 2020
SCC OnLine Bom.639 and
(6) X Vs. State of Maharashtra reported in 2019 SCC OnLine
Bom 9965.
9. In view of above, the writ petition deserves to be
allowed and it is allowed accordingly. Permission is granted to
medically terminate the pregnancy by following the procedure
prescribed in section 3 and section 4 of the Medical Termination of
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Pregnancy Act, 1971. Before the pregnancy is actually terminated,
written consent of the pregnant woman shall be taken.
Investigating Officer shall remain present on the scheduled date at
the place where termination of pregnancy is going to take place
and shall be permitted to take appropriate samples for DNA
testing and profiling.
10. In order to maintain confidentiality of the issue, we
direct that the cause title of the petition in the judgment be stated
as Ms X Vs. State of Maharashtra.
11. Remuneration of Rs.3,500/- be paid to the learned
counsel appointed through High Court Legal Services Sub-
Committee, Nagpur.
12. Steno copy of the judgment be furnished to the
parties.
13. Rule is made absolute in the above terms. No costs.
(ANIL L. PANSARE, J) (SUNIL B. SHUKRE, J)
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Signed By:KAVITA PRAVIN
TAYADE
P. A.
Signing Date:04.02.2022 19:01
