Chattisgarh High Court

Xyz vs State Of Chhattisgarh on 26 August, 2022

                                     1

                                                                     NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                      Writ Petition (C) No. 3485 of 2022
    XYZ

                                                             ---- Petitioner

                                  Versus

  1. State of Chhattisgarh Through The Secretary, Home Afairs (Police)
     Department, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District :
     Raipur, Chhattisgarh.

  2. The Superintendent of Police Ambikapur, District : Surguja
     (Ambikapur), Chhattisgarh.

  3. The Station House Ofcer, Police Station, Lakhanpur, District :
     Surguja (Ambikapur), Chhattisgarh.

  4. The Chief Medical and Health Ofcer Ambikapur, District : Surguja
     (Ambikapur), Chhattisgarh.

                                                           ---- Respondents

For Petitioner : Shri Amit Singh Chouhan and Shri Chandradeep Prasad, Advocates.

For State/Respondents : Shri Ghanshyam Patel, G.A.

Hon'ble Shri Justice Arvind Singh Chandel Order On Board

26/08/2022

1. Petitioner is a victim of forcible sexual intercourse committed with

her by the accused of Crime No.157/2022 registered at Police

Station Lakhanpur, District - Surguja, (C.G.). As a result of the said

forcible sexual intercourse, the petitioner is carrying pregnancy

which she wants to abort, as the said pregnancy is causing her

anguish and she does not want to have a child born out of a person

who has ravished her without her consent.

2. This petition was fled on 05.08.2022 seeking a direction to the

authorities to make available two registered medical practitioners

for the purpose of termination of petitioner's pregnancy. This Court

had summoned for a report as to the length of pregnancy and as to

whether the same is legally terminable in accordance with the

provisions contained in the Medical Termination of Pregnancy Act,

1971 (for short 'the MTP Act').

3. The Chief Medical & Health Ofcer, District Hospital Ambikapur,

District - Surguja, (C.G.), has submitted a report dated 17.08.2022

stating that as on 17.08.2022, the petitioner was carrying pregnancy

between 16-18 months. It is further reported that pregnancy of the

petitioner can be terminated and for this purpose petitioner is

mentally and physically ft.

4. I have heard learned counsel appearing for the parties and perused

the record.

5. To deal with the prayer made in the writ petition, it would be

necessary to refer to Section 3 of the MTP Act, which is extracted

hereunder:

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

ofence under the 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 the pregnancy

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 heath; or

(ii) there is a substantial risk that if

the child were born, it would sufer

from such physical or mental

abnormalities as to be seriously

handicapped.

Explanation 1.- 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

pregnant woman.

Explanation 2.- 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

pregnant woman.

(3) In determining whether the continuance of

pregnancy would involve such risk of injury to

the health as is mentioned in sub-section (2),

account may be taken to the pregnant

woman's actual or reasonable foreseeable

environment.

(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.

6. A reading of the above extracted provision would discern that a

pregnancy may be terminated by registered medical practitioners

where the length of the pregnancy does not exceed twenty weeks, if

such medical practitioner is of the opinion, formed in good faith, (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 sufer from such physical or mental abnormalities as to be

seriously handicapped. It is also noteworthy to mention here that

under explanation (1) 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 pregnant woman.

7. Section 5 of the MTP Act provides for the situation when Sections 3

& 4 would have no application. According to this Section, the

provisions of Section 4 and so much 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. Thus, where the life of pregnant

woman is at risk, termination of pregnancy would be permissible

despite the provision contained in sub-section (2) of Section 3 of the

MTP Act.

8. Relying the judgment of Suchita Srivastava and Another v

Chandigarh Administration (2009) 9 SCC 1, Hallo Bi @ Halima v

State of M.P. and Others 2013 (1) MPHT 451, Meera Santosh Pal

and Others v Union of India and Others (2017) 3 SCC 462 and X and

Others v Union of India and Others (2017) 5 SCC 458, the Co-

ordinate Bench of this Court in WPC No.1988/2019 allowed the

concerned woman therein to terminate her pregnancy.

9. In the case at hand, there is no dispute amongst the appearing

parties that the petitioner is victim of forcible sexual

intercourse/rape. She is a minor girl and she along with the consent

of her legal guardian desires to terminate her pregnancy as she does

not want to give birth to the child of a rapist. It is her personal choice

to terminate pregnancy which the Court must respect as it is a facet

of her personal liberty as has been held by the Supreme Court in

Suchita Srivastava (supra).

10. As per the report submitted by the Civil Surgeon-cum-Chief

Medical Superintendent, District Hospital, Ambikapur, District -

Surguja, (C.G.) dated 17.08.2022, the victim girl is carrying pregnancy

of about 16-18 weeks. It is further reported that pregnancy of the

petitioner/victim can be terminated and for this purpose petitioner

is mentally and physically ft.

11. Looking to the above, I am of the considered opinion that present is

a ft case where the Court should allow the petitioner to terminate

her pregnancy.

12.Accordingly, this petition is allowed with the following terms :

 The petitioner shall be admitted to the District Hospital

Ambikapur, District - Surguja, (C.G.) on Tuesday i.e.

30.08.2022 in the early hours and thereafter, the Chief

Medical Ofcer and Health Ofcer/Civil Surgeon of the

Hospital shall depute two registered medical practitioners

i.e. two senior Doctors to cause termination of petitioner's

pregnancy by obtaining consent of the petitioner and her

legal guardian, as petitioner is a minor girl.

 The DNA sample of the fetus shall be preserved for further

reference as the criminal case against the accused is

pending.