Madhya Pradesh High Court

Prosecutirx Thr. Her Legal ... vs The State Of Madhya Pradesh on 10 December, 2021

Author: Gurpal Singh Ahluwalia

                                1
         THE HIGH COURT OF MADHYA PRADESH
                         WP.26765/2021
 Prosecutrix through her legal guardian v. State of M.P. And Ors.

Gwalior, Dated: 10.12.2021

       Shri Rajmani Bansal, Counsel for the petitioner.

       Shri Sanjay Sharma, Counsel for the State.

       This petition under Article 226 of the Constitution of India has

been filed seeking the following reliefs:-

             "1. A direction may kindly be given to the
       respondents to permit the petitioner for undergo the

abortion of the child which she has succeeded due to the mis-happening at Crime No. 333/2021 at respondent no. 4 police station;

2. Further direction may kindly be given to the respondents to provide the medical facility to the prosecutrix in accordance with law; and

3. That, other relief doing justice including cost may also be ordered."

It is the case of the petitioner that she is minor below the age of

18 years and as per her school record her date of birth is 20.06.2004.

On 07.09.2021, she went along with her brother- in- law ( jeeja)

Bhagwan Singh Sahariya to Rajasthan and reached there on

08.09.2021 where the accused Bhagwan Singh had physical

relationship with her on multiple occasions. It is submitted that the

petitioner is pregnant and in case if she is compelled to deliver a

child, then a minor girl who is a victim of rape would undergo mental

agony for the entire life and the birth of the child would not be in her

interest.

Accordingly, this petition has been filed seeking the above

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

mentioned reliefs.

This Court by order dated 4.12.2021 had directed CHMO,

Guna to constitute a Medical Board and to submit a report in a sealed

cover.

The report in the sealed cover was received which was opened

in the open Court.

According to the report given by the Medical Board, the

prosecutrix is containing the pregnancy of 12 (twelve) weeks and 6

(six) days as on 7.12.2021. It is also mentioned that private parts of

the prosecutrix are immature, therefore, the medical termination of

her pregnancy may develop complications and seriousness and,

accordingly, it has been advised that since the pregnancy is of less

than 24 weeks, therefore, pregnancy can be medically terminated, but

it should be done in a Higher Center under the skilled management

and continuous monitoring. From the case diary, it is clear that date

of birth of the prosecutrix mentioned in the school record is

20.06.2004. Thus, it is clear that she was 17 (seventeen) years and 3

(three) months old on the date of incident. Furthermore, the

prosecutrix was taken away by her own brother- in- law (jeeja).

Be that whatever it may be.

The prosecutrix is minor. The moot question for consideration

is that in the light of the report given by the Medical Board, whether

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

the permission to medically terminate her pregnancy can be given or

not?

Sections 3 and 5(1) of the Medical Termination of Pregnancy

Act reads as under:-

"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 offence under that 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 physical or mental health ; or

(ii) there is a substantial risk that if the child were born, it would suffer 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

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

injury tothe 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 of 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 lunatic, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.

5.Sections 3 and 4 when not to apply.- (1) The provisions of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in 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 woman."

This Court is dealing with the case of a child aged 17

(seventeen) years and 6 (six) months who is carrying a child of a

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

rapist and the prosecutrix (X) does not want that she should give

birth to the child of a rapist. Not only this, the child will also have

social stigma throughout his life and the girl, who is 17 years of age,

has to deliver a child which will certainly result in life threat to the

pregnant minor girl.

The Supreme Court in the case of Murugan Nayakkar Vs.

Union of India & Ors. in Writ Petition (Civil) No.749/2017 by

order dated 6/9/2017 has held as under:-

"The petitioner who is a 13 years old girl and a victim of alleged rape and sexual abuse, has preferred this writ petition for termination of her pregnancy. When the matter was listed on28.8.2017, this Court has directed constitution of a Medical Board at Sir J.J. Group of Hospitals, Mumbai. Be it noted, this Court had also mentioned the composition of the team of doctors. The petitioner has appeared before the Medical Board on 1.9.2017 and the Medical Board that has been constituted by the order of this Court expressed the opinion Signature Not Verified Digitally signed by GULSHANKUMAR that the termination of pregnancy should be carried out. That ARORA Date: 2017.09.06 18:28:22 IST Reason: apart, it has also been opined that termination of pregnancy at this stage or delivery at term will have equal risks to the mother. The Board has also expressed the view that the baby born will be preterm and will have its own complications and would require Neonatal Intensive Care Unit (N.I.C.U.) admission.

We have heard Ms. Sneha Mukherjee, learned counsel appearing for the petitioner, Mr. Ranjit Kumar, learned Solicitor General

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

appearing for the Union of India and Mr. Nishant R. Katneshwarkar, le%arned standing counsel for the State of Maharashtra.

Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.

In view of the aforesaid premise, we direct the petitioner to remain present at the Sir J.J. Group of Hospitals, Mumbai in the evening of 7.9.2017 so that the termination of pregnancy can be carried out preferably on 8.9.2017. Mr. Nishant R. Katneshwarkar shall apprise the Dean of Sir J.J. Group of Hospitals, Mumbai so that he/she can make necessary arrangements for termination of the pregnancy.

A copy of the order passed today be handed over to learned counsel for the petitioner and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra.

The writ petition is accordingly disposed of. There shall be no order as to costs."

In light of the aforesaid judgment, considering the age of the

girl, trauma which she has to suffer and the agony she is going

through at present and also keeping in view the report submitted by

the Medical Board, Guna this Court is of the opinion that the prayer

made by the petitioner deserves to be allowed and is accordingly

allowed.

The respondents are directed to carry out termination of

pregnancy immediately. The Chief Medical & Health Officer, District

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

Guna is directed to admit the child (prosecutrix) latest by 14th

of December, 2021, and termination of pregnancy be carried out as

early as possible subject to the medical complications. If she is

required to be sent to Higher Center, then necessary arrangement

shall be made by CHMO, Guna in this regard.

It is needless to mention that the Head of the Department of

Gynecologist, Head of the Department of Anesthesia and all other

Specialists will remain present at the time when termination of

pregnancy will be carried out, as the girl is of tender age and as there

may be a threat to the life of the girl also. Not only this, after the

termination of pregnancy is carried out, the State of Madhya Pradesh

shall ensure postoperative care of the girl (prosecutrix).

The High Court of Bombay in the case of Shaikh Ayesha

Khatoon Vs. Union of India and Others reported in 2018 SCC

OnLine Bom 11 has dealt with the issue of termination of pregnancy

beyond 27 weeks as there was several fetal anomalies including a

congenital malformation. The Bombay High Court in the aforesaid

case while dealing with most of the judgments of the apex Court in

paragraph No.14 to 28 has held as under:-

"14. As has been recorded above, the freedom of a pregnant woman of making choice of reproduction which is integral part of"personal liberty", whether to continue with the pregnancy or otherwise cannot be taken away. It shall also

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

be taken into consideration that besides physical injury, the legislature has widened the scope of the termination of pregnancy by including "a injury" to mental health of the pregnant woman. Thus, if continuance of pregnancy is harmful to the mental health of a pregnant woman, then that is a good and legal ground to allow termination of pregnancy if all the conditions incorporated in legal provision are met. In the instant matter the petitioner claims that it would be injurious to her mental health to continue with the pregnancy since there are severe foetal abnormalities noticed and it would also be violative of her "personal liberty" to deny her the choice to terminate the pregnancy. The provisions of Section 5 of the Act of 1971 shall have to be interpreted in the manner for advancing the cause of justice. In this context it would be appropriate to refer to the judgment of Division Bench of this Court in the matter of High Court on its own motion vs. the State of Maharashtra, reported in 2017 CriL.J. 218. In paragraph-13 of the judgment, it is observed thus:

"13. A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy.

To be pregnant is a natural phenomenon for which woman and man both are responsible. Wanted pregnancy is shared equally, however, when it is an accident or unwanted, then the man may not be there to share the burden but it may only be the woman on whom the burden falls. Under such circumstances, a question arises why only a woman should suffer. There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. It undoubtedly affects her mental health. The law makers have taken care of helpless plight of a woman and have enacted Section 3(2)(b)(i) by incorporating the

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

words "grave injury to her mental health". It is mandatory on the registered medical practitioner while forming opinion of necessity of termination of pregnancy to take into account whether it is injurious to her physical or mental health. While doing so, the woman's actual or reasonable foreseeable environment may be taken into account."

15. While interpreting the provisions of Section 5 of the Act of1971, it must be borne in mind the principle that the section must be construed as a whole whether or not one part is a saving clause and similarly elementary rule of construction of section is made of all the parts together and that it is not permissible to omit any part of it; the whole section must be read together. The words of Statute are first understood in their natural, ordinary and popular sense and phrases and sentences are construed according to their grammatical meaning unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in special sense different from their ordinary grammatical meaning. The basic principle that while interpreting the provisions of a Statute one can neither add nor subtract even a single word, has to be kept in mind. A section is to be interpreted by reading all of its parts together, and it is not permissible to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, it is not open to the Court to add and amend, or by construction, make up for the deficiencies, which has been left in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same produces an intelligible result. [Vide Nalinakhya Bysack v. Shyam Sunder Haldar and ors., AIR 1953 SC 148; Sri Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459; M. Pentiah and Ors. v. MuddalaVeeramallappa and Ors., AIR 1961 SC 1107; The Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya and Ors., AIR 1987 SC 849; and Dadi Jagannadham v. Jammulu Ramulu and Ors., (2001) 7 SCC 71].

16. In the matter of New India Assurance Company Ltd. v. Nusli Neville Wadia and another, (2008) 3 SCC 279, the Hon'ble Supreme Court while referring to the analysis of purposive construction has observed in paragraph-52 as narrated below:

"52. Barak in his exhaustive work on 'Purposive Construction' explains various meanings attributed to the term 'purpose'. It would be in the fitness of discussion to refer to Purposive Construction in Barak's words:

"Hart and Sachs also appear to treat 'purpose' as a subjective concept. I say 'appear' because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes,they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent ofthe author, but rather

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

the intent the author would have had, had he or she acted reasonably."

(Aharon Barak, Purposive Interpretation in Law (2007)at pg. 87)

17. A statute must be interpreted having regard to the purport and object of the Act. The doctrine of purposive construction must be resorted to. It would not be permissible for the Court to construe the provisions in such a manner which would destroy the very purpose for which the same was enacted. The principles in regard to the approach of the Court in interpreting the provisions of a statute with the change in the societal condition must also be borne in mind. The rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled.

18. The two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. In regard to the latter principle, the following statement of law appears in Maxwell at page 47:

"A statute is to be read as a whole - "It was resolved in the case of Lincoln Colleges case (1595) 3 Co Rep. 58B, at page59b that the good expositor of an Act of Parliament should make construction on all the parts together, and not of one part only by itself. Every clause of a statute is to be construed with reference to the context and other clauses of the act, so as, as far as possible, to make a consistent enactment of the whole statute. (Per Lord Davey in Canada Sugar RefiningCo. Ltd. v. R. 1898 Act 735 (Canada)."

19. As has been observed by the Supreme Court in the matter of RBI Vs. Peerless General Finance and Investment Co. Ltd., reported in (1987) 1 SCC 424, the textual interpretation that

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

matches the contextual is known to be best interpretation. It is observed in paragraph 33 of the judgment, thus:

"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause,phrase by phrase and word by word. If a statute is looked at,in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section,each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place..."

20. Generally speaking, Statutes are classified in fourfold manner. Firstly, the statutes are remedial, secondly they are declaratory, thirdly they are procedural and lastly they are penal or disentitling. One has to find out the character of the statute as to whether it is penal or not, so as to apply principles of strict construction. In the instant matter it cannot be said that the provisions of the enactment which are relevant for consideration are penal in

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

character. In a way, the provision is remedial and procedural. The provision, therefore, cannot be applied the standards as regards interpretation of a Statute which is penal in character.

21. On analysis of the judgments and the narrations, as recorded above, one must while interpreting the provisions of law,bear in mind that the provision as to be interpreted by reading all of its parts together and it is not permissible to omit any part thereof. The golden rule of interpretation is that the provisions of law have to be read as it is without adding or subtracting anything therefrom. In an appropriate case, the Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven.

22. In the instant matter, on reading of Section 5 of the Act of1971, it does transpire that the contingencies and the parameters laid down in clauses (i) & (ii) of sub-section (2)(b) of Section 3 shall have to be read in Section 5 except the bar of limitation as provided in Section 3(2)(b) of the Act of 1971. It would not be appropriate to over look the contingencies laid down in clauses (i) & (ii) of sub-section (2) (b) of Section 3 while considering the request of a pregnant woman for termination of the pregnancy if the conditions laid down in clauses (i) & (ii) of sub-section (2)(b) of Section 3 are satisfied it would provide a good ground for exercise of jurisdiction under Section 5 of the Act of 1971.

23. The Ministry of Health and Family Welfare, Government of Maharashtra has prepared the MTP (Amendment) Bill and the notification in that regard was published on 29.10.2014. The State Government has proposed amendment to Section 3 of the Act of1973 and clause (C) is proposed to be added which reads thus :

"(C) the provisions of sub-section (2) of section 3 as relate to the length of

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

the pregnancy shall not apply to the termination of a pregnancy by a registered health care provider where the termination of such pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities as may be prescribed."

24. Considering the above proposed amendment, according to us, the interpretation which we have put to Section 5 of the Act of1971 appears to be a logical and same is in consonance with the proposed changes as suggested by the State in the MTP(Amendment) Bill notified on 29.10.2014.

25. The petitioner has restricted the claim in the petition in respect of prayer clause (b)(ii) of paragraph-56 of the Petition. The other prayers recorded by the petitioner in the instant petition are not pressed. Even otherwise, in view of the interpretation which we have put to Section 5 of the Act of 1971, prayer clause (a), as requested by the petitioner, does not need consideration.

26. For the reasons recorded above, the Writ Petition is allowed. The petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. The petitioner undertakes to report to the approved center for carrying out the procedure of medical termination of pregnancy within two days from today.

27. The Counsel appearing for the petitioner states, on instructions, that the petitioner will bear the medical expenses of the procedure of medical termination of pregnancy at a medical facility of her choice.

28. It is clarified at this stage that the petitioner has been sensitized by the Committee/Medical Board about the risk factors involved and it would be open for the petitioner to undergo the procedure of medical termination of pregnancy at her own risk and consequences. It is further made clear that the Doctors who have put their opinions on record shall have the

THE HIGH COURT OF MADHYA PRADESH WP.26765/2021 Prosecutrix through her legal guardian v. State of M.P. And Ors.

immunity in the event of occurrence of any litigation arising out of the instant Petition."

In light of the aforesaid judgment, though this Court has

already granted permission to carry out termination of pregnancy, but

still it is directed that the Doctors who will be part of the process

shall have immunity in the event of occurrence of any litigation

arising out of the order passed by this Court. It is needless to mention

that in case, the Head of the Gynecologist and Head of the

Department of Anesthesia are not present, senior Doctors having

experience in the field shall carry out the termination of pregnancy.

With the aforesaid, writ petition stands allowed.

Let a typed copy of this order be supplied to the Office of