Bombay High Court
Dr Rajendra Ratilal Chawhan And Anr vs The State Of Maharashtra And Anr on 7 May, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
907. WPST-10276-2024.doc
Digitally signed
by RUPALI
RUPALI RAJESH
RAJESH WAKODIKAR
WAKODIKAR Date:
2024.05.07
18:08:53 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 10276 OF 2024
Dr.Rajendra Ratilal Chawhan & Anr. ...Petitioners
Versus
The State of Maharashtra & Anr. ...Respondents
Mr. Meenaz Kakalia for the Petitioners.
Mrs. P.P.Shinde, A.P.P for the Respondent-State.
Mr. Anant C. Parad, Police Inspector, Palghar Police Station, present.
CORAM : REVATI MOHITE DERE &
MANJUSHA DESHPANDE, JJ.
DATE : 7th MAY, 2024
P.C. :
1. Heard learned Counsel for the parties.
2. By this petition, the petitioners seek a direction that the
petitioner No.1 be permitted to undertake/perform medical
termination of pregnancy (MTP) of 14 weeks on the minor girl, aged
16 years, without disclosing her name and identity in terms of the
judgment of the Apex Court in the case of X. V/s. The Principal
Secretary, Health and Family Welfare Department, Government of
907. WPST-10276-2024.doc
NCT Delhi & Anr1.
3. Learned Counsel for the petitioners orally submits that any
forensic evidence generated by the medical termination of pregnancy,
be collected and stored by the petitioner No.1, only if the minor and
her guardian give their informed consent for the same in terms of the
guidelines issued by the Ministry of Health and Family Welfare
Department.
4. We have perused the judgment of the Apex Court as stated
aforesaid. Para 81 of the said judgment reads thus;
"81. To ensure that the benefit of Rule 3B(b) is extended
to all women under 18 years of age who engage in
consensual sexual activity, it is necessary to harmoniously
read both the POCSO Act and the MTP Act. For the
limited purposes of providing medical termination of
pregnancy in terms of the MTP Act, we clarify that the
RMP, only on request of the minor and the guardian of the
minor, need not disclose the identity and other personal
details of the minor in the information provided under
Section 19(1) of the POCSO Act. The RMP who has
provided information under Section 19(1) of the POCSO
Act (in reference to a minör seeking medical termination of
a pregnancy under the MTP Act) is also exempt from
1 (2022) 7 SCT 686
907. WPST-10276-2024.doc
disclosing the minor's identity in any criminal proceedings
which may follow from the RMP's report under Section
19(1) of the POCSO Act. Such an interpretation would
prevent any conflict between the statutory obligation of the
RMP to mandatorily report the offence under the POCSO
Act and the rights of privacy and reproductive autonomy
of the minor under Article 21 of the Constitution. It could
not possibly be the legislature's intent to deprive minors of
safe abortions."
5. The Apex Court also recognised the medical practitioner's
fear of prosecution under POCSO, thereby hindering access to safe
and legal abortion. The Hon'ble Supreme Court noted in the very
said judgment, in para 20 as follows;
"20. .......A fear of prosecution under this complex
labyrinth of laws, including linking of the MTP Act with the
IPC, acts as a major barrier to safe abortion access, by
having a chilling effect on the behaviour of RMPs. The
chilling effect -- historically associated with protection of
freedom of speech and expression under Article 1925 --
has an impact on the decision- making of medical
professionals acting under the MTP Act and consequently
impedes access to safe and legal abortions and the
actualization of women's fundamental right to reproductive
autonomy."
907. WPST-10276-2024.doc
6. The Apex Court further in para 80 noted as under;
"80. ......If there is an insistence on the disclosure of the
name of the minor in the report under Section 19(1) of
POCSO, minors may be less likely to seek out RMPs for
safe termination of their pregnancies under the MTP Act."
7. It appears that on 23rd April, 2024, a 16 year old girl and
her mother approached the petitioner No.1 at his clinic. The girl was
about 14 weeks pregnant. The girl and her mother disclosed to the
petitioner No.1 that the girl was in a relationship with a boy and that
the relations between the girl and the boy were consensual, pursuant
to which, the girl became pregnant. The victim girl, keeping in mind
her age and her being underweight and undernourished, sought
termination of pregnancy. Since the girl was a minor, the petitioner
No.1 was under an obligation to report the commission of an offence
under Section 19(1) of the POCSO Act.
8. Thus, it is clear, from the aforesaid judgment, that an RMP
on the request of the minor and the guardian need not disclose the
identity or the personal details of the minor in the information
907. WPST-10276-2024.doc
provided under Section 19(1) of the POCSO Act. The directions were
issued by the Apex Court keeping in mind the rights of privacy and
reproductive autonomy of a minor under Article 21 of the
Constitution. Infact, the Apex Court observed in the aforesaid
judgment that if there is any insistence of the disclosure of the name of
the minor in the report under Section 19(1) of the Act, minor may be
less likely to seek out RMPs for safe termination of pregnancy under
the MTP Act.
9. Learned Counsel for the petitioners submits that the
minor's mother has given an affidavit to the petitioner No.1 dated
23rd April, 2024. A copy of which, was shown by the learned Counsel
to us. In the said affidavit, the the victim's mother has stated that the
relations between her daughter and the boy, in question, were
consensual and the pregnancy cannot be continued having regard to
her daughter being under nourished and underweight. In the said
affidavit, she has requested that the identity of her daughter shall not
be disclosed to any person.
907. WPST-10276-2024.doc
10. When the learned APP as well as the officer was
confronted with the aforesaid judgment and the guidelines issued by
the Ministry of Health and Family Welfare, learned APP submitted
that the Police will abide by the same and Police will not compel the
petitioner No.1 i.e. the Doctor performing the MTP on the minor, to
disclose the identity of the minor.
11. Accordingly, we permit the petitioner No.1 to undertake
MTP of the minor girl, aged 16 years, without disclosing her name
and identity in terms of the judgment of the Apex Court as stated
aforesaid. We also direct that if any forensic evidence which is
generated from the said MTP, be collected and stored by the petitioner
No.1, only if there is an informed consent of the minor and her
guardian for the same.
12. At this stage, learned Counsel for the petitioners seeks
leave to amend the petition. Leave granted. Amendment to be carried
out during the course of the day.
907. WPST-10276-2024.doc
13. For consideration of the other prayers in the petition,
stand over to 26th June, 2024.
14. All concerned to act on the authenticated copy of this
order.
MANJUSHA DESHPANDE, J. REVATI MOHITE DERE, J.
