Madhya Pradesh High Court
Prosecutrics Of Crime No. 186 Of ... vs The State Of Madhya Pradesh on 14 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 14th OF AUGUST 2023
WRIT PETITION No.19410 of 2023
Between:-
PROSECTRIX OF CRIME NO.186 OF 2023
THROUGH HER NATURAL GUARDIAN
FATHER MAHESH KUSHWAH SON OF
SHRI HUKUM SINGH, AGED ABOUT 46
YEARS, RESIDENT: AWADPURA,
PICHHORIYO KI PAHADIYA, KAMPOO,
DISTRICT GWALIOR (M.P.)
.....PETITIONER
(BY SHRI MOHIT BHADOURIA - ADVOCATE )
AND
1. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, DEPARTMENT `
OF HEALTH, VALLABH BHAWAN, BHOPAL
(M.P.)
2. CHIEF MEDICAL HEALTH OFFICER,
DISTRICT GWALIOR (M.P.)
3. STATION HOUSE OFFICER, POLICE
STATION MADHOGANJ, DISTRICT
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
2
GWALIOR (M.P.)
(BY SHRI PAWAN SINGH RAGHUVANSHI -
GOVERNMENT 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. That, the medical board may kindly
be constituted to evaluate the physical
and mental health status of the
prosecutrix and after obtaining the
report let the pregnancy of the
prosecutrix be terminated while
following the due process of law in the
interest of justice.
Any other relief which this Hon'ble
Court deems fit in the facts and
circumstances of the case same may
kindly be granted to the petitioner."
2. It is the case of the petitioner that the prosecutrix aged
about 16 years 8 months went missing, therefore, an FIR at
Crime No.186 of 2023 for the offence punishable under
Section 363, 366, 376 (3) of IPC and section 5/6 of Protection
of Children from Sexual Offences Act, 2012 at Police Station
Madhoganj, District Gwalior has been lodged by the father of
prosecutrix namely Mahesh Kushwaha against the accused
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
Arun. During investigation, the father of the prosecutrix
Mahesh Kushwaha has filed a Habeas Corpus registered at Writ
Petition No.11942 of 2023. The corpus was produced before
the Court by the investigating agency and on dated 25/5.2023
this Court issued direction for the counselling. Thereafter the
report dated 26.6.2023 was submitted before the Court. It
reveals from the report that the corpus is pregnant, but she is
only 16 ½ years of age. After counselling the prosecutrix in
the open court expressed unwillingness to live with her father,
therefore, she was sent to One Stop Centre. The parents of the
prosecutrix went to One Stop Centre where daughter of the
petitioner expressed her willingness to terminate the pregnancy
as she was minor. 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. On 7.8.2023 this Court had directed Government
Advocate to verify whether the petition has been preferred at
the behest of minor prosecutrix through her father who is kept
in One Stop Centre, as in the habeas corpus petition
W.P.No.11942 of 2023, preferred by the father of the minor
prosecutrix wherein she had refused to go along with her
father, therefore, she was directed to be kept in One Stop
Centre, Gwalior. On 9.8.2023 the learned Government
Advocate has produced the statement of prosecutrix which has
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
been recorded on 7.8.2023 by Chhama Rajoriya, S.I.
Madhavganj, wherein she has stated that she has moved the
present petition through her father. Thereafter vide order dated
9.8.2023 this Court 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 10.8.2023
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 on
10.8.2023 and the prosecutrix was found carrying pregnancy of
18 weeks and 3 days. The report dated 10.8.2023 given by the
Medical Board is reproduced as under:
"dk;kZy; flfoy ltZu lg eq[; vLirky v/kh{kd] ftyk Xokfy;j
dz-@esfM-cksMZ@2023 Xokfy;j fnukad ------
esfMdy cksMZ fjiksVZ fnukad &10&08&2023
vkt fnukad 10&08&2023 dks eku- mPp U;k;ky; [k.MihB Xokfy;j ds
izdj.k dz- MCY;w ih- 19410@2023 esa vijk/k dz- 186 esa ihfM+rk ds uspqjy
xkftZ;u fo:) e-iz- 'kklu ,oa vU; esa ikfjr fu.kZ; fnukad 09&08&2023 ds
ifjikyu esa ihfM+rk ds xHkZikr djk;s tkus gsrq ekuuh; U;k;ky; }kjk vuqefr
pkgh gS] mDr dze esa fnukad 10&08&2023 dks fo'ks"k esfMdy cksMZ esa ofj"B
fo'ks"kKksa ds le{k ihfM+rk dk ijh{k.k fd;k x;k tks fuEukuqlkj gSA
igpku dk fpUg%& A Black mole on Rt. hand
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
ckzV ckb%& Anu Gupta -1168 vkj{kd
ijh{k.k%& cksMZ loZlEefr ds vuqlkj& Age of patient - About 17 years
fLFkfr%& Normal
gkbZV@otu%& 150 c.m. /50 ka.
ukM+h xfr%& 99 pulse
jDr pki%& 120/64 bp
rkieku%& 98'c
'olu ra=%& Normal
g`n;@lapkj ra=@lhoh,l%& Normal
raf=dk ra=%& Normal
ih@,%& 18&20 wks
ih@oh%& OS closed No discharge
Investigation-Blood Group A+Rt pos. HB/11.7 TLC 9.55 S.Billi ---
Blood urea ..... Creatinine....... HIV NR HBSAG NR HCV NR VDRL
NA URINE R/M ........... USG to day 18 wks -3 days -wt. 268
vfHker%& mijksDr ijh{k.kksa ds ifj.kkeksa ds vk/kkj ij cksMZ loZlEefr ls bl
fu"d"kZ ij igqWpk gS fd fo'ks"kKksa ds }kjk lHkh vko';d lko/kkfu;kWa cjrrs
gq;s ;Fkk laHko 'kh?kz ihfM+rk dk VfeZus'ku vkWQ izsXusalh V'kZjh lsUVj ij
(Medical College) Lrj ls fd;k tkuk mfpr gksxkA
MkW jhuk lDlSuk MkW lqHkk"k mik/;k; MkW ,e-ds- ik.Ms
L=h jksx fo'ks"kK fu'psruk fo'ks"kK jsfM;ksykWftLV
MkW jkts'k dqekj 'kekZ
ftyk esfMdy cksMZ
flfoy ltZu lg eq[; vLi-v/kh{kd Xokfy;j"
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
5. This Court is dealing with the case of a girl aged about
16 ½ 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 of a rapist. Not only this, the child will also have
social stigma throughout his life and the girl, who is about 17
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
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
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, 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.
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
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
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 10.8.2023, the future of
a minor girl aged 16½ 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
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
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)...
(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. Section 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
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
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
necessary procedure of termination of pregnancy on 16th
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 directed that Dean of G.R. Medical College,
Gwalior shall constitute team of senior and experienced doctors
for the sake of humanity.
11. 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
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
opinions on record shall have the immunity in the event of
occurrence of any litigation arising out of the instant procedure.
12. 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
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.
13. With the aforesaid directions, this writ petition is allowed
and disposed of.
14. 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/-
Signature Not Verified
Signed by: ASHISH PAWAR
Signing time: 14-08-2023
07:00:08 PM
