Madhya Pradesh High Court
X Minor Through Her Legal Guardian ... vs The State Of Madhya Pradesh on 23 May, 2022
Author: Vivek Rusia
-1-
The High Court of Madhya Pradesh : Bench At Indore
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 23rd OF MAY, 2022
WRIT PETITION No. 11941 of 2022
Between:-
X MINOR THROUGH HER LEGAL GUARDIAN
TERSINGH S/O SHRI HIRMAL , AGED ABOUT 51
YEARS, OCCUPATION: LABOURER GRAM
PIPLYABUJURG, POST BHIKANGAON,TEHSIL
BHIKANGAON (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHISH CHOUBEY, LEARNED COUNSEL)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL
1. SECRETARY VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
DISTRICT HOSPITAL, THROUGH SUPERINTENDENT
2.
KHARGONE (MADHYA PRADESH)
THE STATION HOUSE OFFICER POLICE STATION
3.
BHIKANGAON KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VALMIK SAKARGAYEN, LEARNED
GOVERNMENT ADVOCATE)
This petition coming on for order this day, the court passed
the following:
ORDER
The petitioner has filed the present petition seeking
permission/direction for termination of pregnancy. According to
her she born in the year 2005. She has lodged an FIR on
10.12.2021 bearing No.820/2021, Police Station - Bheekangaon,
District - Khargone alleging her kidnapping and sexual assault.
Because of the said unfortunate incident, she has become pregnant
and at present, she is carrying pregnancy of 12 weeks. Since, she is
victim of rape, therefore, she is not willing to continue the
pregnancy and hence, she is before this court seeking direction to
the respondents to terminate her pregnancy.
Vide order dated 19.05.2022 this Court directed the
concerned Medical Board to examine the condition of the victim as
to whether the termination is advisable and it would not effect the
health of the victim.
The District Hospital, Khargone has submitted a report in
this regard and as per the report, the period of pregnancy is 13
weeks + 1 day, and therefore, same can be terminated.
Learned counsel for the petitioner submits that in view of the
explanation of sub-section (2) of Section 3 the termination of
pregnancy is permissible.
The Apex Court in case of Ms. X v/s Union of India &
Others reported in AIR 2016 SCC 3525 has held that Section 5 of
the Act lay down the exception to Section 3 if as per opinion of less
than 2 registered Medical Practitioner gives the opinion of in good
faith in respect of termination of pregnancy to save the life of
pregnant women. By placing reliance over the aforesaid section the
Apex Court has granted liberty to the petitioner to terminate her
pregnancy. Relevant portion of the aforesaid judgment is
reproduced below:
"5. The question that arises for our consideration is,
whether it would be justified and legal, to terminate the
pregnancy of the Petitioner, which the Medical Report
itself shows, as of 24 weeks duration? Learned Attorney
General representing the Union of India has invited our
attention to Section 3 of the Medical Termination of
Pregnancy Act, 1971 (hereinafter referred to as 'the Act')
which is extracted below:
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
to her 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 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 a
pregnancy would involve such risk of injury to the health
as is mentioned in Subsection (2), account may be taken to
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 [mentally ill person], shall be
terminated except with the consent in writing of her
guardian.
(b) Save as otherwise provided in Clause (a), no
pregnancy shall be terminated except with the consent of
the pregnant woman.
A perusal of the above provision reveals, that the
provision deals with termination of pregnancies of
different durations, and the procedure contemplated
therefor. Section 3 leaves no room for doubt, that it is not
permissible to terminate a pregnancy, after 20 weeks.
However, Section 5 of the Act lays down exceptions to
Section 3. Section 5 of the Act is also reproduced
hereunder: 5. Sections 3 and 4 when not to apply.-
(1) The provisions of Section 4, and so much of the
provisions of Subsection (2) of Section 3 as relate to the
length of the pregnancy and the opinion of not less than
two registered medical practitioners, shall not apply to the
termination of a pregnancy by a registered medical
practitioner in a 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.
(2) Notwithstanding anything contained in the
Indian Penal Code (45 of 1860), the termination of
pregnancy by a person who is not a registered medical
practitioner shall be an offence punishable with rigorous
imprisonment for a term which shall not be less than two
years but which may extend to seven years under that
Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place
other than that mentioned in Section 4, shall be punishable
with rigorous imprisonment for a term which shall not be
less than two years but which may extend to seven years.
(4) Any person being owner of a place which is not
approved under Clause (b) of Section 4 shall be punishable
with rigorous imprisonment for a term which shall not be
less than two years but which may extend to seven years.
Explanation 1.-For the purposes of this section, the
expression "owner" in relation to a place means any
person who is the administrative head or otherwise
responsible for the working or maintenance of a hospital
or place, by whatever name called, where the pregnancy
may be terminated under this Act.
Explanation 2.-For the purposes of this section, so
much of the provisions of Clause (d) of Section 2 as relate
to the possession, by registered medical practitioner, of
experience or training in gynecology and obstetrics shall
not apply. A perusal of Section 5 of the Act reveals, that the
termination of pregnancy, which is necessary to save the
life of the pregnant woman, is permissible."
In light of the aforesaid verdict, considering the age of the
petitioner, and the agony which she is going through at present and
also keeping in view the report of Medical Board constituted by
this Court, deserves to be allowed and is accordingly allowed. The
case of the petitioner is covered under explanation of sub-section
(2) of Section 3 of the Act of 1971.
The petitioner has filed the copy of Aadhar Card according
to which her age is disclosed as 17 years. In the medical report sent
by District Hospital, Khargone, her age is mentioned as 17 years.
Thus, the petitioner is minor and at the time of termination of
pregnancy, the consent of her father and mother be also taken.
The respondents are directed to carry out termination of
pregnancy immediately if health condition of the girl permits to do
so. The Doctors specialized in the field are the best experts to take
decision about health condition of girl before and after termination
of pregnancy. This Court is only giving permission of termination
of pregnancy in view of judgment passed by the Apex Court in
aforementioned cases but subject to the health condition and
consent under the Act. The Superintendent of District Hospital,
Khargone is directed to admit the petitioner and examine her health
condition before termination of pregnancy within 3 days positively
as per the consent given by her as required under sub Section (4) of
Section 3 of the Medical Termination of Pregnancy Act, 1971 &
health condition.
It is needless to mention that the Head of the Department of
Gynecologist, Head of the Department of Anaesthesia and all other
specialist shall remain present at the time termination of pregnancy
looking to the tender age threat of life of the petitioner.
With the aforesaid, present writ petition stands allowed.
(VIVEK RUSIA)
V. J U D G E
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.05.23 18:36:49 +05'30'
