Bombay High Court
Xyz vs The State Of Maharashtra Thro. The ... on 5 September, 2024
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:36485-DB
Gitalaxmi 3-wp-12147-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 12147 OF 2024
Miss "XYZ" .....Petitioner
Vs.
The State of Maharashtra
Through the Principal Secretary,
Public Health Department,
Mantralaya, Mumbai-400 023. .....Respondent
Ms. Snehal Chaudhari (Through Legal-Aid) for the Petitioner.
Mrs. M. P. Thakur, A.G.P. for the Respondent-State.
CORAM : A. S. GADKARI AND
DR. NEELA GOKHALE, JJ.
RESERVED ON : 3rd SEPTEMBER 2024.
PRONOUNCED ON : 5th SEPTEMBER 2024.
JUDGMENT :
-
1) The Petitioner, a minor of 17 years of age, is in the 26 th week of
pregnancy, being a victim of child abuse. There is a F.I.R. filed against the
accused in the said crime. She seeks permission for medical termination of
the pregnancy.
2) By an Order dated 28th August 2024, this Court directed the
Authorities of J.J. Group of Hospitals and Grant Medical College, Mumbai
to constitute a Medical Board in terms of the provisions of Section 3(2-D) of
the Medical Termination of Pregnancy (Amendment) Act of 2021 (M.T.P.
Gitalaxmi 3-wp-12147-2024.doc
Act) read with the Medical Termination of Pregnancy Act, 1971, to examine
the Petitioner and to submit a report to this Court. The Medical Board
while forming its opinion was also requested to evaluate the physical and
emotional well-being of the Petitioner as well as the impact and
repercussions of the continuance/termination of pregnancy.
3) Accordingly, a Medical Board was constituted by the J.J. Group
of Hospitals and Grant Medical College, Mumbai and a report dated 2 nd
September 2024 is submitted before us today. We have perused the report.
It is taken on record and marked "X" for identification. The report is
unanimous.
4) The conclusive Committee opinion is as under:
"On interviewing the victim and her mother, the following
facts were revealed:
- That the mother is widowed since past two years.
- That she is the sole breadwinner and also has two
other children (an older son and a younger daughter)
dependent on her.
- That they were seeking treatment in K.E.M.
Hospital which is not only close by to their residence but
is also very convenient.
- That this pregnancy is an incidental finding while
seeking treatment for fever. It is begotten from a
consensual relationship with a 22 year old male, named
Sujit Sonkar, a known person and that the victim and her
male partner are willing to marry, settle down and accept
Gitalaxmi 3-wp-12147-2024.doc
the child as their own in due course of time, a scheme of
arrangement that has blessings of the mother.
- That travelling up to J.J. Hospital every day is a
harrowing experience for the mother resulting in the loss
of daily earnings. She'd much rather prefer receiving
further treatment at K.E.M. Hospital.
After thorough investigation and examination of the
patient, the committee has found that at present the
mother is 17 year old, unmarried primigravida with BD?
BS 24 weeks + 5 days of gestational age with no
congenital anomaly in the fetus.
As the patient has filed a complaint under section 376 of
I.P.C. and sought High Court Order for the opinion of the
Medical Termination of Pregnancy, the Committee is of the
opinion that as mother is underage and a case of
P.O.C.S.O., carrying unwanted pregnancy to term will
cause mental stress to the teenage-mother. The patient, in
her current state of health, is not fit for undergoing the
procedure as opined by specialists in the discipline of
Medicine & Anaesthesia. Patient needs to be stabilized
and revaluated for fitness which can be done in 2 to 3
weeks.
Medical termination of pregnancy may be undertaken
thereafter pursuant to the final decision of the Honourable
High Court."
5) Ms. Chaudhari, learned counsel appears for the Petitioner and
Ms. Thakur, learned A.G.P. represents the State.
6) The report of the Board was shared with both the counsels.
Gitalaxmi 3-wp-12147-2024.doc
Ms. Chaudhari requested one day's time to take instructions from the
Petitioner and her mother. Accordingly, the matter was listed today on 3 rd
September 2024.
7) Ms. Chaudhari on instructions submits that, considering the
opinion of Medical Board, the Petitioner and her mother have shown their
inclination to continue the pregnancy and take it to its full term. Ms.
Thakur submitted that, appropriate orders in the interest of justice may be
passed considering the findings and opinion of the Medical Board.
8) Conscious of the right of Petitioner to reproductive freedom,
her autonomy over the body and her right to choice and having considered
the findings and opinion of the Medical Board, we permit the Petitioner to
medically terminate the pregnancy, if she so desires. However since she has
expressed her willingness and desire to continue with the pregnancy, she is
fully entitled to do so. The present case squarely falls within the purview of
the Explanation-2 to Section 3(2) of the M.T.P. Act read with Rule 3-B(a)
and (b) of the M.T.P. Rules of 2003.
9) The Petitioner and her mother have indicated their desire that,
the delivery procedure, etc. to be done in the K.E.M. Hospital, Mumbai,
which is close to their residence and convenient to them. In these facts and
circumstances, we issue the following directions:
i) We permit the Petitioner to medically terminate the pregnancy,
if she so desires.
Gitalaxmi 3-wp-12147-2024.doc
ii) The finding of the Medical Board indicates that, the minor-
Petitioner, in her current state of health is not fit for undergoing the
procedure as opined by the specialist and she needs to be stabilized
and revaluated for fitness, which can be done in 2-3 weeks. It is only
thereafter that, the termination procedure can be done. Thus in case,
the Petitioner opts to terminate the pregnancy, the procedure shall be
carried out only at such time as advised by the doctors concerned
with the procedure.
iii) The Hospital shall also provide post-delivery care to the
Petitioner including neo-natal care for the baby, if so required.
Considering that, the Petitioner is a victim of sexual abuse, the
Hospital Authorities shall also provide for counseling, post-delivery.
iv) Given that there is an allegation of sexual assault, the
Authorities of the Hospital will preserve the appropriate tissue/DNA
sample of the fetus/child after its birth and forward the same to the
Investigating Officer for ensuing criminal trial.
v) In the event that the Petitioner desires to give the child in
adoption after the delivery, the State and its agencies will assume
responsibility of the child and take such steps as necessary to
rehabilitate the child including exercising the option of placing the
child in foster care/adoption by following the due legal process. This
shall not however be construed as a direction of this Court binding
Gitalaxmi 3-wp-12147-2024.doc
the Petitioner and the State shall abide by the wishes as expressed at
the appropriate stage.
10) The Petition is allowed in the aforesaid terms.
11) All concerned to act on the production of authenticated copy of
this order.
(DR. NEELA GOKHALE, J.) (A. S. GADKARI, J.)
12) While we allow the present Petition, we find the predicament
of young women finding themselves in these situations disturbing. Their
plight in dealing with the situation, without support from their families and
more importantly the partner, who is equally responsible for the situation, is
disquieting. It is distressing to see the victim being left alone to fend for
herself while understanding the nuances of the pregnancy itself, accepting
the anatomical changes brought about by the pregnancy, the dilemma of
disclosing the fact to her parents and the partner leading to the pregnancy
advancing beyond 24 weeks and thereby compelling her to approach the
Court for permission to terminate the pregnancy, facing a Medical Board
alone and finally undergoing the procedure of either termination or the
delivery all by herself.
13) In our recent Order dated 8 th July 2024 passed in Civil Writ
Petition No. 8920 of 2024, we had already expressed our anguish in respect
Gitalaxmi 3-wp-12147-2024.doc
of the difficult circumstances in which women such as the Petitioner find
themselves. We were hopeful that the Government would address this
complexity by devising proactive measures and putting in place an effective
mechanism to provide much needed succor to the women victims.
14) We now intend to ensure that, the victims are not left without
support to face the challenges presented by such pregnancies. We thus
deem it appropriate to appoint amicus curiae to assist the Court in its
endeavor to determine a suitable mechanism so as to facilitate involvement,
accountability and participation of the partner in these testing times of the
women.
15) We have thus requested Dr. Abhinav Chandrachud, learned
counsel to assist us in regard to the aforesaid issue.
15.1) The Registry is directed to supply a copy of complete
compilation of present Petition alongwith the report of Medical Board. We
request Dr. Chandrachud to submit his note within a period of two weeks
from today.
16) List the matter on 20th September 2024 for further
consideration.
(DR. NEELA GOKHALE, J.) (A. S. GADKARI, J.)
GITALAXMI KRISHNA
KRISHNA KOTAWADEKAR
KOTAWADEKAR Date:
2024.09.06
18:23:36 +0530
