Madhya Pradesh High Court
Ashok vs Public Health Department on 25 May, 2023
Author: Sushrut Arvind Dharmadhikari
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 25th OF MAY, 2023
WRIT PETITION No. 11710 of 2023
BETWEEN:-
ASHOK S/O HARIRAM CHOUHAN, AGED ABOUT 39 YEARS,
OCCUPATION: SABJI KA THELA 55, LAL BAHADUR
SHASTRI NAGAR INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RATNESH KUMAR GUPTA - ADVOCATE)
AND
1. PUBLIC HEALTH DEPARTMENT THROUGH
SECRETARY VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. MADHYA PRADESH SHASAN DWARA JILA
COLLECTOR DISTRICT INDORE (MADHYA PRADESH)
3. POLICE AYUKT POLICE AAYUKT KARYALAYA,
INDORE (MADHYA PRADESH)
4. JILA MEDICAL BOARD DWARA CHIEF MEDICAL
HEALTH OFFICER JILA INDORE (MADHYA PRADESH)
5. THANA PRABHARI AARAKSHI KENDRA THANA
ANNAPURA, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAURAV SINGH CHOUHAN - DY.G.A.)
This petition coming on for admission this day, the court passed the
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Signed by: VARGHESE
MATHEW
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following:
ORDER
Heard finally with the consent of both the parties.
1. In this petition, under Article 226 of the Constitution of India, the
petitioner has prayed for the following reliefs :-
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2. Case of the petitioner is that a report was lodged at Police Station
Annapurna, District Indore, for offences punishable under sections 376, 376(2)(n)
of IPC and sections 5(j)(ii)/6, 5(L)/6 of POCSO Act. During investigation, the
petitioner came to know about the pregnancy and medical examination was
conducted by the registered Medical Practitioner, who gave the report of pregnancy
as "positive". Since continuance of pregnancy would cause grave injury to mental
health of the petitioner and would create a great mental agony for her entire life and
may also invite socio-economic problems, therefore, she has filed the present writ
petition seeking direction to the respondents authorities to terminate her pregnancy
under the provisions of Sections 3,4 and 5 of the Medical Termination of Pregnancy
Act 1971 and rules made thereunder. It is further submitted that according to
Article 21 of the Constitution of India, she has right to live with dignity and with
personal liberty and there can not be any restriction whatsoever on the exercise of
reproductive choices. Admittedly the prosecutrix is aged about 17 years.
3. This Court vide order dated 18.05.2023 had directed the petitioner to
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appear before the Dean, M.Y. Hospital, Indore on 19.05.2023 at 11.00 a.m. so that
she can be medically examined by the committee of three competent faculties
including the Head of Department, Obstetrics and Gynaecogoly and other members
of the committee.
4. Today, the report of the committee dated 19.05.2023 constituted of 2
Gynaecologist, 1 Dept. of Medicine, 1 Dept. of Anaesthesia and 1 Radiologist has
been produced by the respondents, which is taken on record. The same is
reproduced herein below :-
"As per the order directed by High Court order 3224/AG/22
Indore, dated 18.05.2023, with W.P. No.11710/2023, the survivor
Ms. Ritika Chouhan d/o Ashok Chouhan, 17 years old female, is
being duly examined by Medical board members and they have
opined that the patient can be taken up for medical termination of
pregnancy".
5. The Medical Termination of Pregnancy Act, 1971 (for brevity 1971
Act) provides for termination of certain pregnancies by registered medical
practitioners and for matters connected therewith or incidental thereto. The
relevant sections 3, 4 and 5 of the said 1971 Act are reproduced below for
ready reference and convenience:-
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
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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 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.
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(3) In determining whether the continuance of pregnancy would
involve such risk of injury to the health as is mentioned in sub-section
(2), account may be taken of 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
lunatic, shall be terminated except with the consent in writing of her
guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall be
terminated except with the consent of the pregnant woman.
4. Place where pregnancy may be terminated.-No termination of
pregnancy shall be made in accordance with this Act at any place other
than,- (a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act
by Government.
Provided that the District Level Committee shall consist of not
less than three and not more than five members including the
Chairperson, as the Government may specify from time to time.]
5. Sections 3 and 4 when not to apply.- (1) The provisions of
Sec.4 and so much of the provisions of sub-section (2 of Sec. 3 as relate
to the length of the pregnancy and the opinion of not less than two
registered medical practitioner, shall not apply to the termination of a
pregnancy by the registered medical practitioner in case where he is of
opinion, formed in good faith, that the termination of such pregnancy is
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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 a pregnancy by a person who is not a
registered medical practitioner shall be an offence punishable 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.]
6. In view of the aforesaid, the termination of pregnancy is permissible
where pregnancy does not exceed 20 weeks and if such termination is
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recommended by at least two registered medical practitioners who are of the
opinion formed in good faith that continuance of pregnancy would involve risk to
the pregnant woman.
7. Explanation 1 to section 3 (2) enlarges the definition of grave injury to
mental health contemplated by section 3 (2) (b)(i) of 1971 Act, to include anguish
suffered by a rape victim.
8. Thus the right interpretation of Explanation 1 to section 3 (2) is that even
if a rape victim carrying pregnancy not exceeding twenty weeks is recommended
by at least two registered medical practitioners to be not facing risk of life or grave
injury solely due to pregnancy, even then the anguish which the rape victim suffers
per se is sufficient to constitute grave injury to the mental health of the pregnant
woman (victim of crime of rape).
9. In case of Meera Santosh Pal and Others Vs. Union of India and others,
reported in 2017(1) MPWN 44, the Apex Court has permitted the termination of
pregnancy even after 22 weeks. Relevant portion of the aforesaid judgment is
reproduced below:
"The crucial consideration is that a woman's right to
privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman's right to refuse
participation in sexual activity or alternatively the insistence on use
of contraceptive methods. Furthermore, women are also free to
choose birth control methods such as undergoing sterilisation
procedures. Taken to their logical conclusion, reproductive rights
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include a woman's entitlement to carry a pregnancy to its full term,
to give birth and to subsequently raise children..... The crucial
consideration in the present case is whether the right to bodily
integrity calls for a permission to allow her to terminate her
pregnancy. The report of the Medical Board clearly warrants the
inference that the continuance of the pregnancy involves the risk to
the life of the pregnant woman and a possible grave injury to her
physical or mental health as required by Section 3 (2)(i) of the
Medical Termination of Pregnancy Act, 1971. Though, the
pregnancy is into the 24th week, having regard to the danger to the
life and the certain inability of the fetus to survive extra uterine life,
we consider it appropriate to permit the petitioner to terminate the
pregnancy. The overriding consideration is that she has a right to
take all such steps as necessary to preserve her own life against the
avoidable danger to it.
10. In recent judgment passed by the constitution bench of the Supreme
Court in case of Murugan Nayakkar Vs. Union of India and Others, passed
in W.P(Civil). No.749/2017 the Court has permitted termination of pregnancy
of a 13 year old victim of rape and sexual abused, considering the trauma
which she has suffered. Relevant portion of the aforesaid judgement is
reproduced below:
"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
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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 Signature Not Verified Digitally
signed by GULSHAN KUMAR that the termination of pregnancy
should be carried out. That ARORA Date: 2017.09.06 18:28:22
IST Reason: 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".
11. In the light of the aforesaid law and judgments, considering age of the
girl to be 17 years, trauma and agony which she has suffered and keeping in view
the report of medical Board constituted by this Court vide order dated 18.05.2023,
this Court is of the opinion that prayer made by the petitioner deserves to be
allowed and is accordingly allowed. The case of the petitioner is covered under
explanation of sub-section (2) of Section 3 of the Act, 1971. The Dean,
Department of Obstetrics and Gynecology, M.Y. Hospital, Indore is directed to
carry out termination of pregnancy through a team of expert doctors immediately if
health condition of the girl i.e. the petitioner permit them to do so. The Doctors
specialized in the field are the best experts to take decision about health condition
of the girl before and after termination of the pregnancy. This Court is issuing
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directions only on the basis of the report of the duly constituted Medical Board and
in view of the law laid down by the Apex Court in that cases referred hereinabove
which shall be subject to health condition and the same shall be done in accordance
with law. Respondents are directed to take immediate steps for termination of
pregnancy within seven days positively and do the needful. It is needless to
mention that Head of the Department of Gynecology, Head of Department
Anesthesia and all other specialized doctors shall remain present at the time of
termination of pregnancy. After the termination of pregnancy is carried out, the
State of Madhya Pradesh shall ensure post-operative care of girl. The respondents
are further directed that in the event pregnancy is terminated, they will keep DNA
sample of foetus and shall also keep the same in a sealed cover as per procedure
prescribed.
12. The State of Madhya Pradesh has floated a scheme known as the
Madhya Pradesh Crime Victim Compensation Scheme, 2015; wherein the victim of
rape can claim compensation.
13. In view of aforesaid, the petitioner would be at liberty to avail the
compensation under the aforesaid scheme, if so advised by filing an appropriate
application within a period of 15 days.
14. If such an application is filed within the aforesaid period, the competent
authority of the respondents shall decide the same in accordance with the scheme as
expeditiously as possible, preferably, within a period of 4 weeks thereafter.
15. The Medical Report dated 19.5.2023 is taken on record.
16. With the aforesaid, present writ petition stands allowed.
17. No order as to costs.
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C.C.today.
(S. A. DHARMADHIKARI)
V. JUDGE
VM
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