Chattisgarh High Court

Abc vs State Of Chhattisgarh on 25 November, 2022

                                     1
                                                                          NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                               WPC No. 4672 of 2022

   1. ABC

                                                                 ---- Petitioner

                                   Versus

   1. State Of Chhattisgarh Through Secretary, Department Of Health And
      Family Welfare,   Mahanadi    Bhawan,   Naya    Raipur   District   Raipur
      Chhattisgarh

   2. The Chief Executive Officer (C.M.O.), Medical Board Of Rajmata Shrimati
      Devendra Kumari Singhdeo, Governement Medical College And Hospital,
      Ambikapur District Surguja Chhattisgarh

   3. Head Officer Of Department Gynecologist (H.O.D.) Gynaic, Medical Board
      Of Rajmata Shrimati Devendra Kumari Singhdeo, Government Medical
      College And Hospital Ambikapur, District Surguja Chhattisgarh

                                                  ---- Respondents.

For Petitioner : Mr. Rajbahadur Singh, Advocate For State : Mr. Ghanshyam Patel, G.A.

Hon'ble Shri Justice P. Sam Koshy Order On Board 25.11.2022

1. The present writ petition has been filed seeking permission to under-

go termination of medical pregnancy.

2. The petitioner is aged around 24 years of age and she is a victim of

rape. An offence has been registered at the Mahila Tahana Ambikapur

vide Crime No. 41/2022. The accused is one namely Sajan Tirkey

who is being prosecuted for the offence punishable under Section

376(2)(n). As a consequence of the offence of rape upon the

petitioner, she is said to have got conceived and she has appraoched

this Court for permission to undergo termination of medical pregnancy

on 09.11.2022.

3. The matter is taken up for hearing on 10.11.2022, when the petitioner

was directed to under-go a medical examination under the

supervision of the Doctors at the Medical College Ambikapur. The

Doctors examined the petitioner as per the order of this Court and a

report was submitted on 11.11.2022 wherein the petitioner was too

anemic and for that reason, the Doctors had advised not to subject

the petitioner to undergo termination of pregancy and to wait till she

improves upon her anemic condidition.

4. This Court vide order dated 14.11.2022 had directed the petitioner to

be subjected to another examination on 25.11.2022. Meanwhile, the

Doctors were also advised to ensure that necessary treatment is

provided to the petitioner so as to improve upon her anemic condition.

In-terms-of the order of this Court, the Doctors now have filed another

report on 23.11.2022 wherein the Doctors have opined that her

hemoglobin has improved substantially and in the present condition,

the petitioner can be subjected to under-go termination of medical

pregnancy. When the earlier report dated 11.11.2022 was submitted,

the petitioner was carrying 18 weeks and one day of pregnancy which

by today as per the report of the Doctors dated 23.11.2022, she is

carrying 19 weeks and 3 days of pregrancy, which is well within the

permissiable limit under the Medical Termination of Pregnancy Act

1971.

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.

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, let the petitioner who is already admitted at