Madhya Pradesh High Court
Prosecutrix X Through Her Natural ... vs The State Of Madhya Pradesh on 11 August, 2023
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 11th OF AUGUST 2023
WRIT PETITION No.19472 of 2023
Between:-
PROSECTURIX - 'X' THROUGH HER
NATURAL GUARDIAN FATHER NAMELY
CHINTOO KUSHWAHA, S/O KAMTOO
KUSHWAHA, AGED 37 YEARS,
OCCUPATION: LABOUR, R/O VILLAGE
SEWNI, SONAGIR, DATIA, DISTRICT
DATIA (M.P.)
.....PETITIONER
(BY SHRI NAVAL KISHORE GUPTA- ADVOCATE )
AND
1. STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY, HOME
DEPARTMENT, VALL ABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. THE PRINCIPAL SECRETARY, PUBLIC
HEALTH & FAMILY WELFARE
DEPARTMENT, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
3. THE PRINCIPAL SECRETARY,
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Signed by: ASHISH PAWAR
Signing time: 11-08-2023
02:56:52 PM
2
DEPARTMENT OF CHILD AND WOMEN
DEVELOPMENT, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
4. THE SUPERINDENT OF POLICE, DISTRICT
DATIA (MADHYA PRADESH)
5. THE JAYAROGYA GROUP OF HOSPITALS
THROUGH ITS SUPERINTENDENT J.A.H.
GWALIOR (MADHYA PRADESH)
6. THE CHIEF MEDICAL & HEALTH
OFFICER, DATIA, DISTRICT DATIA
(MADHYA PRADESH)
7. THE STATION HOUSE OFFICER/OFFICER
INCHARGE MAHILA THANA, DATIA,
DISTRICT DATIA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI S.S. KUSHWAHA- GOVT. ADVOCATE )
--------------------------------------------------------------------------------
This petition coming on for admission this day, the court
passed the following:
ORDER
1. By way of this writ petition under Article 226 of the
Constitution of India, the petitioner is seeking following reliefs:
"i. To direct the official respondents to
terminate the unwanted pregnancy of the
petitioner, who is the victim of rape, as
per the norms of the MTP Act and
without causing any complications to
the health of the petitioner and keeping
the safety of the petitioner/victim as top
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most priority.
ii. The respondents may also be directed
to extend the benefit of medical
assistance to the petitioner/victim free of
cost, as she is not in position to bear
such expenses.
iii. The respondents may also be
directed to preserve the sample of the
fetus, for conducting DNA test for future
reference in criminal case.
iv. Any other relief which this Hon'ble
Court may deem just and proper in the
facts and circumstances of the case may
kindly be issued in favour of the
petitioner along with cost of the petition.
"
2. It is the case of the petitioner that his daughter had studied
from School at Datia and is a resident of Village Sewni,
Sonagir, Datia, District Datia. One Raghuraj Kushwaha, who
lives in the same village, has developed physical relationship
with daughter of the petitioner against her will many times, due
to which she got pregnant. On 27.7.2023 at around 3:00 PM
when the aunt of the victim (daughter of petitioner) returned
from the agricultural field, the victim complained of having
stomach ache and thereafter her aunt asked about her monthly
menstrual cycle thereafter the victim was tested by a pregnancy
kit at her home which came positive and when her aunt
enquired from the victim about whether anyone has committed
bad act with the victim that the victim started crying and
informed her aunt that on the second day after Holi Raghuraj
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forcefully took her to his Kutir and had committed rape upon
her and thereafter the said Raghuraj had continuously
committed rape upon her. On the complaint of the aunt of the
victim an FIR at Crime No.20/2023 was registered at Police
Station Mahila Thana Datia, District Datia for offences
punishable under sections 376, 376(3), 376 (2) (n), 506 of IPC
and 5 (j) (ii), 6, 3 and 4 of the Protection of Children from
Sexual Offences Act, 2012 against the accused Raghuraj
Kushwaha. After registration of the FIR, the daughter of the
petitioner was send for medical examination and it was found
that she was carrying pregnancy of 17 weeks and as she being
minor and subjected to sexual harassment didn't want to keep
the child. Therefore, the petitioner who is father of minor girl
had sought termination of the pregnancy of his minor daughter
by filing the present petition.
3. This Court vide order dated 7.8.2023 had directed the
Chief Medical and Health Officer, Gwalior to constitute a
Medical Board including experts in the field concerned to
medically examine the prosecutrix and to submit report as to
whether the medical termination of pregnancy of minor
daughter of the petitioner is possible or not.
4. Today, the report of the Medical Board dated 9.8.2023
been produced by the respondents in a sealed cover, which is
opened in the open Court and taken on record. According to
the said report, an ultrasound was conducted on the prosecutrix
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on 9.8.2023 and the prosecutrix was found carrying pregnancy
of 19 weeks and 2 days. The report dated 9.8.2023 given by
the Medical Board is reproduced as under:
"dk;kZy; flfoy ltZu lg eq[; vLirky v/kh{kd] ftyk Xokfy;j
igpku dk fpUg%& A Mole on side up chin
czkV ckbZ%& Anjali Mudgal - vkj{kd 959
ijh{k.k%&
Fine
ka
mts
c Normal
Normal
& NAD
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- NAD
P/A W20-22, FD yelt
P/V Os closed, no discharge
Investigation - Blood group A+Rh, HB 11.0gm, TLC 11.01 S
Billi. 0.31mg, Blood Urea 17.10mg/dl, Creatinine 0.39 mg/dl,
HIV-Neg., HBSAG-NR, HCV- NR, VDRL-NR
Urine R/M USG Today 19Wks-2days\wt-2-55gram. FHR-
140\p.m.
UPT- Positive Location of Plaeenta-Anterior\Prest.Transverses
Ad-Level II Scan
vfHker%&
(Medical College)
"
5. This Court is dealing with the case of a girl aged about 13
years, who is carrying a foetus of a rapist and the girl, as well as
her parents does not want that she should give birth to the child
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of a rapist. Not only this, the child will also have social stigma
throughout his life and the girl, who is about 13 years of age,
has to deliver a child which will certainly be a life threat to the
pregnant minor girl apart from social ostracization.
6. 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 on 28.8.2017, 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 that the termination
of pregnancy should be carried out. That
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
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Solicitor General 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."
7. In light of the aforesaid judgment, considering the age of
the girl, trauma which she has to suffer and the agony she is
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going through at present and also keeping in view the medical
report submitted by the Medical Board, this Court is of the
opinion that the prayer made by the petitioner and her daughter
deserves to be allowed and is accordingly allowed.
8. Thus, this Court while passing the order has to keep in
mind the report of Medical Board dated 9.8.2023, the future of a
minor girl aged 13 years, who is carrying a foetus of a rapist, the
trauma she will have to face throughout her life while raising
such child and not only this the child will also have to live
his/her entire life with such social stigma.
9. In the present case girl (prosecutrix) being a minor is
legally not in a position to decide anything for herself. Section
3(1), 3 (2) (b) (i) and Section 5(1) of the Medical Termination
of Pregnancy Act, 1971 which 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,-
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(a)...
(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.
5. Sections 3 and 4 when not to apply.-
(1) The provisions of section 4, and so
much of the provisions of sub-section (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."
10. Since there is risk to the life of the pregnant minor girl
and of grave injury to her physical and mental health, this Court
is of the opinion that it cannot remain a silent spectator to the
agony of minor undergoing torture and has to act and take a
decision. In view of such facts, this Court directs that let an
inter-disciplinary team of doctors be constituted by the Dean of
G.R. Medical College, Gwalior and they shall carry out the
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necessary procedure of termination of pregnancy on 14th
August, 2023 at 10:00 AM when the girl (prosecutrix) and her
parents shall appear before the team of the doctors and fill
necessary consent forms. It is also directed that senior doctor of
the Department of Medicine and senior doctor of the
Department of Cardiology shall examine the health condition of
the girl (prosecutrix) before termination of pregnancy of girl
(prosecutrix). It is requested that Dean of G.R. Medical College,
Gwalior shall constitute team of senior and experienced doctors
for the sake of humanity. It is further directed that in terms of
the law laid down by Division Bench of Bombay High Court in
the case of Shaikh Ayesha Khatoon Vs. Union of India,
reported in 2018 SCC OnLine Bom 11, the petitioner and her
daughter shall be sensitized by the Committee/Medical Board
about the risk factors involved in the procedure and it would be
open for the petitioner's daughter 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
procedure.
11. It is further clarified that identity of the girl shall be kept
a secret and shall not be revealed to anybody. This is being done
looking to the future of the girl. It is also directed that no legal
claim can be put forth on the team of the doctors by the girl or
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her parents as they have understood the possible complications
and the team of doctors will not be liable to any legal
complications arising out of such procedure. It is further
directed that relevant department in the G.R. Medical College or
its associates may carry out DNA sampling of the foetus and
preserve report of such DNA sampling to be produced before
the competent Court where criminal case is pending.
12. With the aforesaid directions, this writ petition is allowed
and disposed of. No costs.
13. Let a copy of the order be provided to learned Govt.
Advocate free of cost for immediate transmission to the Dean,
G.R. Medical College, Gwalior.
E-copy/Certified copy as per rules/directions.
(Milind Ramesh Phadke)
Judge
Pawar/-
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Signed by: ASHISH PAWAR
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