Madhya Pradesh High Court
Smt Kiran vs The State Of Madhya Pradesh on 30 January, 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 30th OF JANUARY 2023
WRIT PETITION No.2306 of 2023
Between:-
SMT. KIRAN W/O SHRI DHARMENDRA
JOGI, AGED 43 YEARS, OCCUPATION:
HOUSEWIFE, R/O MEAT MARKET, DABRA
POLICE STATION DABRA, DISTRICT
GWALIOR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAJENDRA SINGH YADAV - ADVOCATE )
AND
1. STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY, HOME
DEPARTMENT, VALL ABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. SUPERINTENDENT OF POLICE, DISTRICT
GWALIOR (MADHYA PRADESH)
3. STATION INCHARGE POLICE STATION
DABRA, DISTRICT GWALIOR (MADHYA
PRADESH)
4. STATE OF MADHYA PRADESH THROUGH
HEALTH AND FAMILY WELFARE
SOCIETY BHOPAL MADHYA PRADESH
2
THROUGH CHIEF MEDICAL OFFICER,
J.A.H. HOSPITAL GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI NEELESH TOMAR - GOVT. ADVOCATE )
--------------------------------------------------------------------------------
This petition coming on for admission this day, Hon'ble Shri
Justice Milind Ramesh Phadke 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:
";kfpdkdrkZ izkFkZuk djrh gS fd
;kfpdkdrkZ }kjk izLrqr ;kfpdk Lohdkj dh
tkdj izfr ;kfpdkdrkZx.k dzekad 1 yxk;r 4
dks funZsf'kr fd;k tkos fd os ;kfpdkdrkZ dh
iq=h dk l{ke MkDVjks }kjk ckfydk dk xHkZikr
djk;k tkosA vkSj vU; lgk;rk tks U;k;ky;
mfpr le>s ;kfpdkdrkZ dks fnyk;h tkosA"
"
2. It is the case of the petitioner that her daughter is aged
about 17 years 7 months and she went missing from home on
2.12.2022 and, accordingly, a missing person report was lodged
vide No.146/2022 at Police Station Dabra. During investigation
on 12.12.2022 a Crime No.1046/2022 was registered at Police
Station Dabra under section 363 of IPC against one accused
Girraj Goli. On 1.1.2023 the police recovered the daughter of
the petitioner from the custody of Girraj from Lucknow. The
daughter of the petitioner was send for medical examination and
it was found that she was carrying pregnancy of 7 weeks and 6
days and she being minor and subjected to sexual harassment
didn't want to keep the child. Therefore, the petitioner who is
mother of minor girl had sought termination of the pregnancy
of her minor daughter by filing the present petition.
3. This Court vide order dated 25.1.2023 had directed the
CMHO, 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 27.1.2023
has 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 27.1.2023 and the prosecutrix was found carrying pregnancy
of 8 weeks and 6 days. The report dated 27.1.2023 given by
the Medical Board is reproduced as under:
"dk;kZy; flfoy ltZu lg eq[; vLirky v/kh{kd] ftyk Xokfy;j
[email protected]@[email protected] fnukad-------------
e-mail-: [email protected] Ph. : 0751-2461574
esfMdy cksMZ fjiksVZ fnukad 21-01-2023
vkt fnukad 21-01-2023 dks eku-mPp U;k;ky; [k.MihB Xokfy;j ds
izdj.k [email protected];w-ih- [email protected] Jherh fdj.k fo:) e-iz- 'kklu esa
ikfjr fu.kZ; fnukad 25-01-2023 ds ikyu esa eku- mPp U;k;ky;
[k.MihB Xokfy;j ds of.kZr izdj.k esa vfHk;ksD=h dh ukcfyd iq=h dk
nks ekg dk xHkZ fxjkus gsrq eku- U;k;ky; ls vuqefr pkgh xbZ gSA mDr
izdj.k es dk;Zokgh gsrq fo'ks"k esfMdy cksMZ dk xBu fnukad 21-01-2023
dks nksigj 12 cts v/kksgLrk{kjdrkZ ds psEcj es fuEukuqlkj fd;k x;k
cksMZ ds le{k ihfM+rk dk ijh{k.k fd;k x;k tks fuukuqlkj gSA
igpku dk fpUg xnZu ij lh/ks gkFk dh rjQ dkyk fry
czksV ckbZ efgyk vkj{kd iwtk ipkSjh uEcj 2717 Fkkuk dEiw Xok-
ijh{k.k
cksMZ ds loZlEefr ds erkuqlkj fuEukuqlkj vfHker fn;k x;k&
fLFkfr & ,ojst
gkbZV & 133-50 lseh-
ctu & 31 fdyksxzke
ukMhxfr & 103 izfr feuV
jDrpki & [email protected]
rkieku & 98-40f
'olu ra= & Lungs Clear, No crepts
g`n;@lapkj ra= ¼lh-oh-,l-½ & S1 S2 normal, Mild Tachycardia
rkafrdk ra= & Well oriented with time, Place,& person
P/A & Soft, liver and spleen not palpable
P/V & Gynaecoligical examination P/v UT AV AF
8 -10 weeks soft mobile fornices clear
Investigation - Blood group B+, HB 10.8, TLC 12260/cu mm, S bil.
0.34 mg/dl, Blood Urea 22.99 mg/dl, Creatinine 0.35 mg/dl, HIV-NR,
HBSAG-NR, HCV- NR, VDRL-NR
Urine R&m - NAD, Alb-nil, Sugar_nil
USG today - SLF of 8 Weeks 6 Days
vfHker%&
1- mijksDr ijh{k.kksa ds ifj.kkeksa ds vk/kkj ij cksMZ loZ lEefr ls
bl fu"d"kZ ij igqpk gS fd fo'ks"kKksa ds }kjk lHkh vko';d lko/kkfu;kW
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
MkW0 jtuh tSu MkW- lqjsUnz lksyadh MkW-,e-ds- ik.Ms
L=hjksx fo'ks"kK fu'psruk fpfdRld jsfM;ksykftLV
MkW- jkts'k dqekj 'kekZ
ps;jesu esfMdy cksMZ
,oa flfoy ltZu Xokfy;j"
6. This Court is dealing with the case of a girl aged about
17-18 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 &
7 months of age, has to deliver a child which will certainly be a
life threat to the pregnant minor girl apart from social
ostracization.
7. 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 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 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
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."
8. 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.
9. Thus, this Court while passing the order has to keep in
mind the report of Medical Board dated 27.1.2023, the future of
a minor girl aged 17 years & 7 months, 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.
10. 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,-
(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."
11. 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 and they shall carry out the necessary
procedure of termination of pregnancy on 3rd February, 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.
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. No costs.
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/dire.ctions.
(Milind Ramesh Phadke)
Judge
Pawar/-
ASHISH PAWAR
2023.01.31
11:03:29 +05'30'
