Madhya Pradesh High Court
Amar Singh Jatav vs The State Of Madhya Pradesh on 4 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 4th OF JANUARY 2023
WRIT PETITION No.28428 of 2022
Between:-
AMAR SINGH JATAV S/O SHRI TULSIRAM,
AGED 40 YEARS, OCCUPATION: LABOUR,
R/O NEAR RAILWAY TRAK, MATAPURA,
POLICE STATION CANT DISTRICT GUNA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.S. 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
GUNA (MADHYA PRADESH)
3. STATION INCHARGE POLICE STATION
CANT DISTRICT GUNA (MADHYA
PRADESH)
4. STATE OF MADHYA PRADESH THROUGH
HEALTH AND FAMILY WELFARE
SOCIETY BHOPAL MADHYA PRADESH
2
THROUGH DISTRICT HOSPITAL GUNA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI M.P.S. RAGHUVANSHI- ADDITIONAL ADVOCATE
GENERAL WITH SHRI JITESH SHARMA - 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 funsZf'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. The case involves an unfortunate rape victim, aged about 16
years and 5 months, whose father seeks permission for termination
of her daughter's pregnancy caused by the accused Vishnu who
has been charged for the criminal offence registered at Crime
No.912/2022 under section 376, 376(2)(n), 3762 (2) (Cha), 366,
506 of IPC read with section 5L and 6 of the Prevention of
Children From Sexual Offences Act, 2012.
3. The case of the Petitioner is that on 26/11/2022 along with
his daughter he had a made a complaint with Police Station,
Kent, that 4 months prior, accused Vishnu, who is son her Aunt
(Mausi), one night came to their house and on the pretext that
since no body is at his home, sought permission to sleep there
for the night. The prosecutrix allowed him to stay overnight,
being a brother and even prepared bed for him, but in the night
Vishnu came to the prosecutrix and against her will committed
rape upon her and threatened her not to narrate the incident to
anyone and thereafter whenever he found her alone time and
again repeatedly committed rape upon her. One day the
prosecutrix told her grandmother about the incident and on that
basis F.I.R. was registered vide Crime No.912/2022 under the
above mentioned offences. The prosecutrix was send for
medical examination and it was found that the prosecutrix was
carrying pregnancy of 22-24 months. Thus, the petitioner who is
father of prosecutrix had sought termination of the pregnancy
of her minor daughter, a rape victim on the ground that she will
be put to physical and mental torture if the child is delivered.
4. This Court vide order dated 20.12.2022 directed the
CMHO, Guna to constitute a Medical Board including a
Gynecologist and an Anesthetist 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 and, accordingly, a report dated 31.12.2022 has
been submitted by the Medical Board in a sealed cover, which
was opened in the open Court and was taken on record.
According to the said report, an ultrasound was conducted on
the prosecutrix on 30/12/2022 and the prosecutrix was found
carrying pregnancy of 30 weeks and two days. In the report it is
observed by the Board that no gross congenital anomaly was
seen in the foetus. In the report it has also been observed that
under the Medical Termination of Pregnancy Act, 1971
permission for abortion of foetus 24 weeks and above is granted
only when there is any deformity with the child in womb, but
there is no provision for granting permission of termination of
30 weeks pregnancy. The report dated 31/12/2022 given by the
Medical Board is reproduced as under:
dk;kZy; izlqfr ,oa L=h jksx foHkkx
deykjktk vLirky ,oa xtjkjktk fpfdRlk egkfo|ky;
Xokfy;j
cSBd fnukad 31-12-2022 dk dk;Zokgh fooj.k
vkt fnukad 31-12-2022 dks esfMdy cksMZ dh cSBd gq;h ftlds
esfMdy cksMZ ds lnL; MkWa- v{kjk xqIrk] bapktZ foHkkxk/;{k jsfM;ksykWth]
MkWa- ?ku';ke nkl] izk/;kid ,oa bUpktZ foHkkxk/;{k cky ,oa f'k'kq jksx
foHkkx ,oa MkWa- iz'kakr JhokLro] izk/;kid ,oa foHkkxk/;{k] ltZjh
foHkkx ,oa MkWa- lq/kk vk;axj] izk/;kid ,oa foHkkxk/;{k] iSFkksykWth foHkkx
mifLFkr jgsaA mifLFkr lnL;ksa }kjk dqekjh vatuk tkVo iq=h Jh vej
flag tkVo ds izdj.k dh tkWap dh x;hA ejht vatuk tkVo mez 16
o"kZ orZeku esa vfookfgr gS rFkk xHkZorh gSA vk/kkj dkMZ ds vuqlkj
mldh mez 16 o"kZ gS rFkk mldk vk/kkj ua- 326546694328 gSA
vkt fnukad 29-12-2022 dks v/kh{kd dk;kZy; esa dksVZ dsl W.P
No. 28428/2022 Amar Singh Jatav V/S The State of
M.P. and Other 24 g¶rs Åij ds xHkZ dh lekfIr gsrq esfMdy cksMZ
}kjk tkWap dk vkosnu fd;k x;k gSA vYVªklkmUM ds vuqlkj 30-12-2022
dks 30 g¶rs 2 fnu dk xHkZ USG }kjk crk;k x;k gS] ,oa xHkZ esa fdlh
rjg dh tUetkr fod`fr ugha crk;h x;h gSA
vkosnu ds mijkUr fnukad 31-12-2022 esfMdy cksMZ vk;ksftr
fd;k x;k ,oa vko';d tkWapsa djok;h x;haA
lHkh nLrkostksa ,oa ejht dh fnukad 30-12-2022 dks
vYVªklksuksxzkQh dh tkWap dh xbZA orZeku esa mldh xHkkZoLFkk 30 g¶rs
02 fnu dh gSA ,oa vYVªklksuksxzkQh esa xHkZLFk f'k'kq esa dksbZ xaHkhj fod`fr
ugha ik;h x;h gSA (No Gross Congenital Anomaly Seen)
MTP ,DV 2021 ds vuqlkj 24 g¶rs ds ckn xHkZLFk f'k'kq esa
xaHkhj 'kkfjfjd fod`fr gksus ij gh xHkZikr dh vuqefr nh tkrh gSA vr%
MTP ,DV 2021 ds vuqlkj mijksDr izdj.k esa 30 g¶rs ds xHkZ ¼24
g¶rs ls Åij½ ds xHkZikr dh ik=rk ugh gSA
MkWa0 o`Unk tks'kh MkWa- ?ku';ke nkl MkWa v{kjk xqIrk
izk/;kid ,oa foHkkxk/;{k izk/;kid ,oa foHkkxk/;{k izk/;kid ,oa foHkk/;{k
izlwfr ,oa L=h jksx foHkkx cky ,oa f'k'kq jksx foHkkx jsfM;ksykWth foHkkx
deykjktk fpfdRlky; Xokfy;j deykjktk fpfdRlky; Xokfy;j x0jk0fpfd0
x0jk0fpfd0 x0jk0fpfd0 egkfo|ky; Xok0
egkfo|ky; Xok0 egkfo|ky; Xok0
MkW- iz'kar JhokLro MkWa- lq/kk vk;axj
Ikz/;kid ,oa foHkkxk/;{k izk/;kid ,oa foHkkxk/;{k
ltZjh foHkkx iSFkksykWth foHkkx
x0jk0fpfd0 egkfo|ky; Xok0 x0jk0fpfd0 egkfo|ky; Xok0
5. In the report, there is no observation of the Board as to
whether there medical termination of the prosecutrix is possible
and there would not be any threat to the life of the prosecutrix if
abortion takes place at this late stage, when ironically the case
was send to the Board for that purpose only, therefore, vide
order dated 3.1.2023 this Court deemed it fit to call for another
report from the Medical Board, clarifying this fact and fixed the
case on 4.1.2023. The said report from the Medical Board was
received on 04/01/2023 in which it has been specifically
mentioned that the pregnancy of prosecutrix is currently
31 weeks. It comes under preterm birth. Therefore, it
is necessary to take into consideration the issue of protection of
the child if born after delivery. The report dated 4.1.2013 given
by the Medical Board is reproduced as under:
dk;kZy; izlqfr ,oa L=h jksx foHkkx
deykjktk vLirky ,oa xtjkjktk fpfdRlk egkfo|ky;
Xokfy;j
cSBd fnukad 04-01-2023 dk dk;Zokgh fooj.k
vkt fnukad 04-01-2023 dks esfMdy cksMZ dh cSBd gq;h ftlds
esfMdy cksMZ ds lnL; MkWa- v{kjk xqIrk] izk/;kid ,oa foHkkxk/;{k
jsfM;ksykWth] MkWa- vt; xkSM+ izk/;kid ,oa foHkkxk/;{k cky ,oa f'k'kq jksx
foHkkx ,oa MkWa- iz'kkar JhokLro] izk/;kid ,oa foHkkxk/;{k] ltZjh
foHkkx ,oa MkW- lq/kk vk;axj] izk/;kid ,oa foHkkxk/;{k] iSFkksykWth foHkkx
mifLFkr jgsaA mifLFkr lnL;ksa }kjk dqekjh vatuk tkVo iq=h Jh vej
flag tkVo ds izdj.k dh tkWap dh x;hA ejht vatuk tkVo mez 16
o"kZ orZeku esa vfookfgr gS rFkk xHkZorh gSA vk/kkj dkMZ ds vuqlkj
mldh mez 16 o"kZ gS rFkk mldk v/kkj ua- 326546694328 gSA
fnukad 30-12-2022 dks izlwfr ,oa L=h jksx foHkkx esa izLrqr gqbZ
FkhA MkWDVjh tkap ds nkSju mldh tujy d.Mh'ku lkekU; ikbZ xbZ Fkh
,oa ¼Vital Sign½ lkekU; FksA mldk CyMxzi B+ve gS ,oa
gheksXyksfcu 11-7 gm% gS lkekU; gS] ,oa HIV, RPR ,oa HBsAg
antigen fuxsVho gSA xgu tkap gsrq mldk esfMflu foHkkx ds ofj"B
fpfdRld ,oa dkWfMZ;ksykWth foHkkx ds ofj"B fpfdRld }kjk ijh{k.k
djuk mfpr gksxkA
vatuk iq=h vej flag dk xHkZ orZeku esa 31 g¶rs dk gSA ;g
le; iwoZ izlo ds varxZr vkrk gSA vr% izlo ds mijkUr tUe fy;s gq;s
cPps ds laj{k.k dk fo"k; laKku es ysuk vko';d gSA
MkWa0 o`Unk tks'kh MkWa- vt; xkSM+ MkWa v{kjk xqIrk
izk/;kid ,oa foHkkxk/;{k izk/;kid ,oa foHkkxk/;{k izk/;kid ,oa foHkk/;{k
izlwfr ,oa L=h jksx foHkkx cky ,oa f'k'kq jksx foHkkx jsfM;ksykWth foHkkx
deykjktk fpfdRlky; Xokfy;j deykjktk fpfdRlky; Xokfy;j x0jk0fpfd0
x0jk0fpfd0 x0jk0fpfd0 egkfo|ky; Xok0
egkfo|ky; Xok0 egkfo|ky; Xok0
MkW- iz'kar JhokLro MkWa- lq/kk vk;axj
Ikz/;kid ,oa foHkkxk/;{k izk/;kid ,oa foHkkxk/;{k
ltZjh foHkkx iSFkksykWth foHkkx
x0jk0fpfd0 egkfo|ky; Xok0 x0jk0fpfd0 egkfo|ky; Xok0
6. Thus, this Court while passing the order has to keep in
mind the report of Medical Board dated 31/12/2022 and
04/01/2023, the future of a minor girl aged 16 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.
7. In a similar case, the Indore Bench of this Court by its
order dated 21.4.2018 passed in Writ Petition No.7701/2018
(Mukesh Patidar Vs. State of M.P. and others), in the light of
a Judgment of Hon'ble Supreme Court and in similar set of facts
after taking note of the medical report submitted by the Doctors
in which the girl aged 12 years was carrying a child in her
womb of 29 weeks, permitted the medical termination of
pregnancy of a minor rape victim and held as under:
"10- The respondents are directed to
carry out termination of pregnancy
immediately. The Dean, MGM Medical
College and M.Y. Hospital, Indore is
directed to admit the child (prosecutrix)
today itself as she is present and
termination of pregnancy be carried out
on 22/04/2018 and if tomorrow is the
holiday being Sunday, the termination be
carried out on 23/04/2018.
11- It is needless to mention that the
Head of the Department of Gynecologist,
Head of the Department of Anesthesia
and all other specialist will remain
present at the time termination of
pregnancy is carrying out, as the girl is
of tender age and as their is a threat of
life of the girl also. Not only this, after
the termination of pregnancy is carrying
out, the State of Madhya Pradesh shall
ensure post operative care of the girl
(prosecutrix)."
8. 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."
9. Since there is risk to the life of the pregnant 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 today itself and they shall carry out the
necessary procedure of termination of pregnancy on 6th
January, 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 his 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.
10. It is further clarified that identity of the girl and if she
gives birth to a live child, then parentage of the child, shall be
kept a secret and shall not be revealed to anybody. This is being
done looking to the future of the girl (prosecutrix). 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. As far
as the issue of probability of birth of a live foetus is concerned,
if a live foetus is born & the mother and her parents does not
want to keep the child, then that be given in adoption as per the
rules of adoption. It is further directed that relevant department
in the G.R. Medical College or its associates may carry out
DNA sampling of the baby and preserve report of such DNA
sampling to be produced before the competent Court where
criminal case in relation to the mother's agony is pending.
11. With the aforesaid direction, this writ petition is disposed
of. No costs.
12. Let a copy of the order be provided to learned Govt.
Advocate free of cost in a sealed cover for immediate
transmission to the Dean, G.R. Medical College, Gwalior.
E-copy/Certified copy as per rules/directions.
(Milind Ramesh Phadke)
Judge
Pawar/-
ASHISH PAWAR
2023.01.04
18:50:30 +05'30'
