Chattisgarh High Court
Abc vs State Of Chhattisgarh on 4 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 1051 of 2022
ABC, through next-kin father
---- Petitioner
Versus
1. State Of Chhattisgarh Through Secretary, Department Of Health And
Family Welfare, Mahanadi Bhawan, Naya Raipur, (C.G.)
2. The Chief Medical Officer (C.M.O.) Medical Board Of District
Hospital, Raipur (C.G.)
3. Head Officer Of Department Gynecologist (H.O.D.) - Gynaic, District
Hospital, Raipur,(C.G.)
---- Respondents
For Petitioner : Mr. Vinay Nagdev, Advocate
For State : Mr. Rahul Jha, Govt. Advocate
Hon'ble Shri Justice P. Sam Koshy
Order on Board
04/03/2022
1. This Court vide order dated 28.02.2022 had directed the
respondents to get the petitioner medically examined under the
supervision of the respondents 2 & 3 and to submit a report so far as
the health condition of the petitioner is concerned.
2. The respondents have now submitted a report dated 02.03.2022
issued by the respondent no.2 whereby two gynecologist doctors
who medically examined the petitioner have opined that the
petitioner can be subjected to termination of pregnancy as the
petitioner as of now is carrying pregnancy of 18-21 weeks.
3. The facts in brief are that the petitioner, a minor girl was allured by
accused Tukeshwar Sahu and was subjected to rape. Initially a
missing report was lodged and a case under Section 363 was
registered. However, subsequently when the petitioner was
recovered, according to the petitioner, the offence under Sections
366 & 376 (2) (n) of IPC has been registered against accused
Tukeshwar Sahu. As a result of the petitioner being subjected to
rape, she has got conceived and as of now is pregnant of 14 weeks
and 5 days as on 26.11.2019. The petitioner has approached this
Court seeking for termination of the pregnancy.
4. The petitioner has relied upon the orders passed by this Court on
27.08.2019 in WPC No. 2869/2019 and on 23.10.2019 in WPC No.
3674/2019 in support of her contention.
5. The State counsel as has been held earlier on the previous date
directed to get the medical opinion so far as the health condition of
the petitioner is concerned and the respondent No.2 has submitted
their report showing that the petitioner can be permitted 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. Bare perusal of the facts in the present case would show that the
said judgment of this Court in WPC No. 2869/2019 is on similar
footing and the condition of the petitioner therein and the petitioner
herein also are almost similar except for the period of pregnancy.
9. In view of the aforesaid facts and circumstances of the case and also
taking note of the decision of this Court rendered in WPC No.
2869/2019 decided on 27.08.2019, this Court is also inclined to take
the same stand and allow the present writ petition permitting the
petitioner to undergo with the termination of her pregnancy.
10. Accordingly, it is directed that let the petitioner approach the
respondent No.2 on 7th of March, 2022 and the respondent No.2 in
turn shall ensure that the petitioner is subjected to medical
termination under the supervision of two registered medical
practitioners preferably two senior Doctors available in the said
district after obtaining due consent of the petitioner as well as her
guardian. The DNA sample of the fetus shall also be taken and
preserved for further evidence as the criminal case against the
accused is still pending. Let this exercise be carried without any
further delay.
11. With the aforesaid observations, the present writ petition stands
allowed and disposed of.
12. Certified copy today.
Sd/-
(P. Sam Koshy)
Judge
Khatai
