Chattisgarh High Court
K (Details In Closed Envelop) vs State Of Chhattisgarh on 5 August, 2022
-1-
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WRIT PETITION (CIVIL) No. 3416 OF 2022
K (Details In Closed Envelop)
---- Petitioner
Versus
1. State Of Chhattisgarh Through Station House Officer, P.S. Saraipali,
District : Mahasamund, Chhattisgarh
2. Chief Medical Officer (CMO) District - Mahasamund (C.G.)
... Respondents
For Petitioner : Mr. Anish Tiwari, Advocate.
For Respondents : Mr. Ghanshyam Patel, Govt. Advocate.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
[05/08/2022]
1. The present Writ Petition has been filed seeking for appropriate
direction to the Respondents permitting the Petitioner-Victim to be
subjected to medical termination of her pregnancy.
2. It is a case where the Petitioner-Victim, a minor girl aged around 17
years, was physically ravished by some unknown persons for which an FIR
was lodged on 25.07.2022 for the offence punishable under Section 376(2)
(n) of IPC and Section 4 & 6 of POCSO Act at Police Station Sariapali,
District Mahasamund. During the course of medical examination of the
Victim, it has been found that she was already conceived and was pregnant
of around 24 weeks 4 days. The Victim and her parents had approached
the Respondent Authorities for terminating the pregnancy which was
refused on the ground that since there is a criminal case already lodged
and pending, it would be difficult to permit the termination of pregnancy,
which led to the filing of the present Writ Petition.
3. On the previous date of hearing i.e. on 03.08.2022, this Court had
directed the Respondent Authorities to get the Petitioner-Victim medically
examined and to find out any complication in case any order to permit the
Victim to terminate her pregnancy is passed. The Respondents have got
the Victim examined by a team of eight Doctors and the Chief Medical and
Health Officer, District Mahasamund has vide Report dated 04.08.2022
submitted the Medical Report before this Court, which is taken on record.
4. In the course of medical examination of the Victim, the Doctors have
found that she was pregnant by 24 weeks and 4 days. However, the
Doctors have opined that continuation of pregnancy at her age is generally
associated with more than average risk of complications associated with
pregnancy & child birth.
5. It would be relevant at this juncture to refer to the following
Paragraphs No.6 to 9 of the Judgment passed in W.P.(C) No. 2869/2019
on 27.8.2019:-
"6. The Supreme Court in the case of Meera Santosh Pal & others Versus
Union of India and others {(2017) 3 SCC 462} has reiterated the view taken in
the case of Suchita Srivastava Vs. Chandigarh Admn {(2009) 9 SCC 1} and
has observed thus in para 9, which is reproduced hereunder:-
"9. In Suchita Srivastava v. Chandigarh Admn {(2009) 9
SCC 1} a Bench of three Judges held "a woman's right to make
reproductive choices is also a dimension of 'personal liberty' as
understood under Article 21 of the Constitution". The Court
there dealt with the importance of the consent of the pregnant
woman as an essential requirement for proceeding with the
termination of pregnancy. The Court observed as follows :-
"22. 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 choices 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. This means
that there should be no restriction whatsoever on the exercise of
reproductive choices such as a woman's right to refuse
participation in sexual activity or alternatively the insistence on
use of contraceptive methods. Furthermore, women are also free
to choose birth control methods such as undergoing
sterilisation procedures. Taken to their logical conclusion,
reproductive rights include a woman's entitlement to carry a
pregnancy to its full term, to give birth and to subsequently raise
children."
7. Reading of section 3 of the Medical Termination of Pregnancy Act,
1971 (hereinafter referred to as 'the Act of 1971') makes it clear that where
length of pregnancy does not exceed 20 weeks and not less than two
registered medical practitioners have formed an opinion in good faith that
the continuance of pregnancy would involve a risk to the life of pregnant
woman or grave injury to her physical or mental health, the pregnancy can
be terminated by a registered medical practitioner. This act of medical
practitioner, if aforesaid conditions are satisfied, will not attract the penal
provisions mentioned in Indian Penal Code. In other words, such registered
medical practitioner shall not be guilty of any offence under the IPC or
under any other law for the time being in force if conditions mentioned in
Section 3 or Section 5 of the Act are satisfied.
8. Explanation 1 of the Act of 1971 purports that when 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 pregnant woman. Sub section 4(a) of section 3
further contemplates that no pregnancy of a woman, who has not attained
the age of eighteen years, for termination of the pregnancy consent has to
be obtained in writing from her guardian.
9. The instant petition has been preferred by the mother of the victim
being her natural guardian and the victim has also been made petitioner
No.1 and the report which is called from the team of the two medical
practitioner of Civil Surgeon, Main Hospital, Mahasamund shows that the
patient is fit to undergo termination of pregnancy and the pregnancy is of 17
weeks 01 days."
6 Based on the aforesaid findings, this High Court had allowed the said
Writ Petition and permitted the Petitioner therein for terminating her
pregnancy.
7. A bare perusal of the facts of the present case would show that the said
Judgment of this Court in W.P.(C) No.2869/2019 is on similar footing and the
condition of the Petitioner therein and the Petitioner herein is almost similar
except for the period of pregnancy.
8. In view of the aforesaid facts and circumstances of the case and also
taking note of the decision of this Court rendered in W.P.(C) No.2869/2019
decided on 27.8.2019, this Court is also inclined to take the same stand and
accordingly allows the present Writ Petition permitting the Petitioner-Victim to
undergo with the medical termination of her pregnancy.
9. Accordingly, it is directed that let the Petitioner-Victim approach the
Respondent No.2 on 6th August, 2022 and the Respondent No.2 in turn
shall ensure that the Petitioner-Victim is subjected to medical termination of
her pregnancy under the supervision of two registered medical
practitioners, preferably two senior Doctors available in the District, after
obtaining due consent of the Petitioner-Victim as well as her guardian. The
concerned Police Station where the FIR was lodged and which is
conducting the criminal case against the accused shall collect the DNA
sample of the fetus of the Victim and shall preserve the same for further
evidence as is required in a criminal case against the accused. Let the
entire exercise be carried without any further delay.
10. With aforesaid observation/direction, the Writ Petition stands
disposed of.
Sd/-
(P. Sam Koshy)
Khatai Judge
