Chattisgarh High Court

Xyz vs State Of Chhattisgarh on 4 July, 2022

                                        -1-

                                                                               NAFR
               HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Writ Petition (C) No. 2868 of 2022

   1. XYZ
                                                                  ---Petitioner(s)
                                      Versus
   1. State of Chhattisgarh Through Superintendent of Police Mahasamund
      Chhattisgarh.
   2. Station House Officer P.S. Basna, District Mahasamund Chhattisgarh.
   3. Collector Mahasmund Chhattisgarh
   4. Chief Medical Health Officer District Hospital, District Mahasamund
      Chhattisgarh.
                                                                 ---Respondents

      For Petitioner              :      Ms. Sareena Khan, Advocate.
      For Respondents             :      Shri Ghanshyam Patel, Govt. Advocate.

                       Hon'ble Shri Justice P. Sam Koshy
                                Order on Board

04.07.2022

1. This court on 29.06.2022 had asked the respondent-Chief Medical Officer,

Mahasamund to submit a report so far as the health condition of the

petitioner who has filed this present writ petition seeking for termination of

her pregnancy.

2. As per the direction of this court, the State counsel has produced before

this court a report of the respondent No.4 dated 30.06.2022. As per the

said report, the petitioner has been found to be carrying with 15-16 weeks

of pregnancy. That is to say as per the medical examination she is

pregnant with 16 weeks and 4 days. At the same time, on the basis of

Ultra Sonography examination she is found to be 15 weeks and 4 days of

pregnancy.

3. The facts of the case is that the petitioner is a victim of rape committed by

one Gunsagar Pasayat. For the said offence an FIR was lodged on

23.05.2022 at Police Station Basna, District Mahasamund, for the offence

punishable under Sections 376(2)(n) of IPC and Section 3(2)(v) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 (Amended in 2015). As a result of the said act on the part of the

accused, the petitioner is said to have got conceived and she is carrying

with around 16 weeks of pregnancy. Since, the petitioner has got

conceived by an act of rape, she intends to get her pregnancy terminated

for various reasons apart from the fact that she is a unmarried girl and she

is also afraid of the social stigma that will arise on account of her getting

conceived before marriage.

4. The petitioner had tried to approach the local doctors who have refused to

terminate the pregnancy for the reason that she is a victim of rape and she

has already filed a criminal case and the said criminal case is pending

against the accused person.

5. In terms of the medical report that have received it has been found that the

respondent No.4 has got the petitioner examined vide one Dr. R.P. Bhagat,

Assistant Professor (Medicine) and Dr. Pratima Koshewara, Assistant

Professor (Gynecology) posted at Govt. Medical College Hospital

Mahasamund. Upon examination, both the Doctors have given a

concurrent finding that the petitioner is as of now is too anemic and she

needs treatment for the same. They have also opined that subject to the

court passing an order, she can be subjected to termination of pregnancy.

6. It would be relevant at this juncture to refer to paragraph Nos. 6 to 9 of the

judgment passed in WPC No. 2869/2019 on 27.08.2019, which are as

under:-

"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."

7. Based on the aforesaid findings, the Coordinate Bench of this Court had

allowed the writ petition and permitted the petitioner for terminating the

pregnancy.

8. In this regard, the Supreme Court in "Suchita Srivastava and another v.

Chandigarh Administration" [(2009) 9 SCC 1] has laid down the

guidelines based on the principle of "best interests" theory and held that

the Court is required to ascertain the course of action which would serve

the best interests of the person in question. Paragraphs 36 and 37 of the

report are relevant and are extracted herein-below: -

"36. Courts in other common law jurisdictions have developed two distinct standards while exercising "parens patriae" jurisdiction for the purpose of making reproductive decisions on behalf of mentally retarded persons. These two standards are the "best interests" test and the "substituted judgment" test.

37. As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights."

9. The Supreme Court in the matter of "X v. Union of India and others"

[(2016) 14 SCC 382] has clearly held that termination of pregnancy after

20 weeks to save life of pregnant woman (an alleged rape victim) in case

of grave danger to physical and mental health of the said woman, is

permissible, and observed as under: -

"13. Having perused the medical report (relevant extracts whereof have been reproduced hereinabove), we are satisfied that a clear finding has been recorded by the Medical Board, that the risk to the petitioner of continuation of her pregnancy can gravely endanger her physical and mental health. The Medical Board has also expressed an advice that the patient should not continue with the pregnancy. In view of the findings recorded in Para 6 of the

report, coupled with the recommendation and advice tendered by the Medical Board, we are satisfied that it is permissible to allow the petitioner to terminate her pregnancy in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. In view of the above, we grant liberty to the petitioner, if she is so advised, to terminate her pregnancy."

10. Similar proposition has been laid down recently by the Supreme Court in

the matter of "X and others v. Union of India and others" [(2017) 3

SCC 458] and also in the matter of Meera Santosh Pal and others v.

Union of India and others [(2017) 3 SCC 462].

11. In a more recent decision, Their Lordships of the Supreme Court in the

matter of Tapasya Umesh Pisal v. Union of India and others [AIR 2017

SC 3931] have permitted termination of pregnancy of a woman, aged 24

years, in her 24th week of pregnancy wherein the Medical Board opined

that baby if delivered would have to undergo several surgeries associated

with high morbidity and mortality, and thus, granted permission.

12. Similarly, in the matter of Mrs. A v. Union of India and others [AIR 2017

SC 4037], the Supreme Court has granted permission for termination of

pregnancy of a woman, aged 22 years, in her 25th to 26th weeks of

pregnancy holding that continuation of pregnancy can pose severe mental

injury to the petitioner and no additional risk to the petitioner's life is

involved if she is allowed to undergo termination of her pregnancy. Their

Lordships held as under: -

"6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 to 26 weeks. The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull.

7. Importantly, it is reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioner's life is involved if she is allowed to undergo termination of her pregnancy."

13. Considering the fact that the team of Doctors who have examined the

petitioner, found the petitioner to be an anemic and also have suggested

for necessary treatment for the same and at the same time they have also

opined that the petitioner can be permitted to get her pregnancy

terminated, further in view of the recent judicial pronouncements laid down

by the Supreme Court as also by this High Court in various judgments

cited in the preceding paragraphs, this court in the instant case also is

inclined to allow the petitioner to undergo termination of her pregnancy.

14. Accordingly, the petitioner is permitted to approach the respondent No.4

again where the respondent No.4 shall ensure that the petitioner is

subjected to termination of her pregnancy after completing all the other

requisite formalities required for the same. The respondent No.4 is further