Mewalal vs The State Of Madhya Pradesh
2022 Latest Caselaw 7511 MP

                                  -1-


        IN THE HIGH COURT OF MADHYA PRADESH
                             AT INDORE
                               BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                        ON THE 26th OF MAY, 2022
                 WRIT PETITION No. 11853 of 2022

     Between:-


1.
     FATHER OF ''X''.




     MOTHER OF ''X''
2.



                                                   .....PETITIONERS
     (BY SHRI SANJAY KUMAR SHARMA, ADVOCATE)


     AND

   THE STATE OF MADHYA PRADESH THROUGH
   PRINCIPAL SECRETARY DEPARTMENT OF
1.
   HEALTH, VALLABH BHAWAN, MANTRALAY,
   DISTRICT BHOPAL (MADHYA PRADESH)
     STATE OF M.P. THROUGH COLLECTOR DHAR,
2.
     DISTRICT DHAR (MADHYA PRADESH)
   STATE   OF  MP    THROUGH   POLICE
3. DHARAMPURI, DISTRICT DHAR (MADHYA
   PRADESH)
4. STATE      OF    MP    THROUGH       CMO   DHAR,
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    DISTRICT DHAR (MADHYA PRADESH)
                                                    .....RESPONDENTS
   (BY SHRI BHASKAR AGRAWAL, ADVOCATE)
This petition coming on for order this day, the court passed the
following:

                           ORDER

The petitioners have filed the present petition seeking permission/direction for termination of pregnancy of their minor daughter. According to petitioners, she born in the year 2005. An FIR has been lodged at Crime No.06/2022, Police Station - Dahrampuri, District - Dhar alleging her kidnapping and sexual assault. Because of the said unfortunate incident, she has become pregnant and at present, she is carrying pregnancy of 13 weeks. Since, she is victim of rape, therefore, she is not willing to continue the pregnancy and hence, petitioners are 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, Dhar has submitted a report in this regard which is reproduced below:-

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mDr fjiksVZ dks rRdky i= cukdj izLrqr djsA MkW- fujt ckxMs ih-th-,e-vks- ftyk fpfdRlky; /kkj Learned counsel for the petitioners 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 daughter of petitioners, 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 petitioners is covered under explanation of sub-section (2) of Section 3 of the Act of 1971.

The petitioners have filed the copy of certificate issued by school, according to which she is minor. In the medical report sent by District Hospital, Dhar, her age is mentioned as 17 years. Thus, the victim 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 Civil Surgeon District Hospital, Dhar/ CMO, Dhar are directed to admit the daughter of petitioners 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 daughter of petitioners.

With the aforesaid, present writ petition stands allowed. I.T. Section of the registry of this Court is directed to send the copy of this order immediately to the Civil Surgeon Dhar/CMO, Dhar immediately through email for compliance of this order.

(VIVEK RUSIA) V. J U D G E praveen

Digitally signed by PRAVEEN NAYAK Date: 2022.05.26 15:07:22 +05'30'