Madhya Pradesh High Court

Kunwarlal Yadav vs The State Of Madhya Pradesh on 19 March, 2021

Author: Gurpal Singh Ahluwalia

        THE HIGH COURT OF MADHYA PRADESH                     1
                     WP 5723 of 2021
         Kunwarlal Yadav vs. State of MP and Ors.

Gwalior, Dated :19/03/2021

      Shri Mehmood Khan, Counsel for the petitioner.

      Shri   Deepak     Khot,   Government       Advocate   for   the

respondents/ State.

This petition under Article 226 of the Constitution of India

has been filed seeking the following reliefs:-

''(a) the respondents may be directed to terminate the pregnancy of the victim so the life of the victim may be saved.;

(b) any other order which this Hon'ble court deems fit in favour of the petitioner.''

It is the case of the petitioner that the daughter of the

petitioner is minor, aged about 16 years and she was subjected to

rape as a result of which, Crime No.25/2021 has been registered at

Police Station Civil Lines, Datia for offence under Sections 363,

366-A, 376, 376(2)(n), 343, 120-B of IPC and under Section 5

(L)/6 of Protection of Children from Sexual Offences Act [ in short

'' POCSO Act'').

This Court, by order dated 10/03/2021, had directed the

CMHO, Datia to constitute a committee including an Anesthetist

and Gynecologist to examine the daughter of the petitioner and to

submit a report as to whether medical termination of pregnancy is

possible or not. The Counsel for the State was also directed to

produce the Case Diary.

WP 5723 of 2021 Kunwarlal Yadav vs. State of MP and Ors.

Accordingly, Shri Deepak Khot, has produced the Case Diary

as well as the report of Medical Board in a sealed cover. According

to the Case Diary, the date of birth of the prosecutrix as per her

School Record, is 02/04/2004. Thus, it is clear that the prosecutrix

is still minor. According to the prosecution case, the prosecutrix

was raped by accused Sonu Parihar as a result of which, she has

become pregnant.

The report submitted by the Medical Board in a sealed cover

is taken on record which reads as under:-

izfr] flfoy ltZu lg eq[; vLirky v/kh{kd ftyk fpfdRlky; nfr;k e-iz-

fo"k; %& i= [email protected];[email protected]&95 ds lanHkZ esa! LkUnHkZ %& vkidk i= [email protected];[email protected]@1094&95 nfr;k fnukad [email protected]@2021 egksn~;] mijksDr fo"k; esa ys[k gS fd vkt fnukad [email protected]@2021 dks xfBr desVh ds }okjk ihfMrk f'kokuh ;kno iq=h Jh dqojyky ;kno dh tkWp dh xbZ ftldh lksuksxzkQh fjiksVZ esa 14 g¶rs 2 fnu dk xHkZ vk;k gS ,oa [kwu dh tkWp djkus ij fjiksVZ lkekU; vkbZ gSA vRk% desVh ds erkuqlkj ihfMrk dk fu;e ds vuqlkj ¼,e-Vh-ih- ,DV ds rgr~~½ lqjf{kr xHkZikr lHHko gSA layXu %& 1- lksuksxzkQh fjiksVZ 2- ,p0vkbZ0ch fjiksVZ 3- fgesVksykWth ¼lh0ch0lh0½ fjiksVZ 4- ck;ksdseLs Vªh ¼vkj0,Q0Vh ,.M ,y0,Q0Vh½ fjiksVZ

MkW0,p0,e0mTtSfu;k MkW- e/kqokyk xqIrk MkW0 lq/kk 'kekZ fu'psruk fo'ks"kK L=h jksx fo'ks"kK esMhdy vkWQhlj ftyk fpfdRlky; nfr;k ftyk fpfdRlky; nfr;k ftyk fpfdRlky; nfr;k

According to this report, the prosecutrix is carrying the

pregnancy of 14 weeks and 2 days and the medical termination of

her pregnancy is safe.

WP 5723 of 2021 Kunwarlal Yadav vs. State of MP and Ors.

Considered the submissions as well as the report submitted

by the Medical Board.

The relevant statutory provisions, i.e. 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 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

WP 5723 of 2021 Kunwarlal Yadav vs. State of MP and Ors.

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 about 16

years, who is carrying a child of a person, against whom the

allegations of rape have been made and a criminal case also been

registered. Not only this, the child will also have social stigma

throughout her life and the girl, who is 16 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.

WP 5723 of 2021 Kunwarlal Yadav vs. State of MP and Ors.

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 appearing for the Union of India and Mr. Nishant R. Katneshwarkar, learned 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.

WP 5723 of 2021 Kunwarlal Yadav vs. State of MP and Ors.

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

Medical Board Datia, 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 of the daughter of the petitioner immediately. The Chief

Medical & Health Officer, District Datia is directed to admit the

child (prosecutrix) latest by 21st March, 2021 and termination of

pregnancy be carried out within a period of one week after taking

all necessary medical precautions.

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

WP 5723 of 2021 Kunwarlal Yadav vs. State of MP and Ors.

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 held as under :-

''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 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.

It is also directed that after terminating the pregnancy of the

daughter of the petitioner, the foetus shall be preserved, so that the

DNA can be extracted in order to establish the paternity of the