Victix X vs The State Of Madhya Pradesh
2023 Latest Caselaw 17169 MP

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                           IN THE               HIGH COURT OF MADHYA PRADESH
                                                      AT I N D O R E
                                                                      BEFORE
                                               HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                    ON THE 14th OF OCTOBER, 2023
                                                    WRIT PETITION No. 26364 of 2023

                           BETWEEN:-
                           VICTIX X (MADHYA PRADESH)
                                                                                                           .....PETITIONER
                           (SHRI DHARMENDRA GURJAR, ADVOCATE.)

                           AND
                                THE STATE OF MADHYA PRADESH, THROUGH PRINCIPAL
                           1.
                                SECRETARY, VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
                                CHIEF MEDICAL AND HEALTH OFFICER, DISTRICT INDORE
                           2.
                                (MADHYA PRADESH)
                                STATE OF MADHYA PRADESH THROUGH MAHILA AVEM BAL VIKAS
                           3.
                                VIBHAG, (MADHYA PRADESH)
                                STATE OF MADHYA PRADESH THROUGH COLLECTOR, INDORE
                           4.
                                (MADHYA PRADESH)
                                STATE OF MADHYA PRADESH THROUGH POLICE                                                 STATION
                           5.
                                PARDESIPURA, DISTRICT INDORE (MADHYA PRADESH)
                                                                                                        .....RESPONDENTS
                           (SHRI KAMAL KUMAR TIWARI, GOVERNMENT ADVOCATE.)
                           --------------------------------------------------------------------------------------------------------
                                   This petition coming on for orders this day, the court passed the

                           following:

                                                                         ORDER

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-10-2023 13:43:51

[01] The petitioner being a victim of rape has approached this Court seeking direction to the respondents to terminate her pregnancy. At present, the petitioner is a minor child and period of her pregnancy has crossed 26 weeks. Since under The Medical Termination of Pregnancy Act, 1971, termination of the baby is not permissible, therefore, the present petition is filed.

[02] Vide order dated 11.10.2023, this Court directed Dean of MGM Medical College and M.Y. Hospital, Indore to constitute a Medical Board of experts to examine the victim's health condition and give opinion whether termination of pregnancy would be safe for health and life of the victim. The Dean constituted 5 members' Committee comprising Head of the Department, Professor of OBS, Gynecologist, Pediatrics, Radiologist, Head of the Department, Professor of Surgery, Head of the Department and Professor of Pathology and all of them gave opinion that the patient is minor and victim of sexual assault. The termination of pregnancy can be done. So far as the physical fitness of the petitioner is concerned, 10 unit blood would be required to improve hemoglobin.

[03] Recently, the Apex Court in the case of XYZ v/s The State of Gujarat and others [Special Leave Petition (Criminal) Diary No(s).33790/2023] has passed the judgment relating to this issue. The relevant paragraphs of the said judgment are as under:

17. More recently, in the case of X vs. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Ors., AIR 2022 SC 4917; this Court, in another three-judge Bench lead by Dr. D.Y. Chandrachud, J. (as the

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-10-2023 13:43:51

learned Chief Justice then was) observed that a woman can become pregnant by choice irrespective of her marital status.

In case the pregnancy is warranted, it is equally shared by both the partners. However, in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion.

18. In the context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the - dignity of women.

19. The whole object of preferring a Writ Petition under Article 226 of the Constitution of India is to engage with the extraordinary discretionary jurisdiction of the High Court in exercise of its constitutional power. Such a power is vested with the constitutional courts and discretion has to be exercised judiciously and having regard to the facts of the case and by taking into consideration the relevant facts while leaving out irrelevant considerations and not vice versa.

21. Subsequently to the medical procedure to be carried out either today or tomorrow, in the event, the foetus is found to be alive, the hospital shall give all necessary medical assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives. Further, in case the foetus survives, then State shall take steps for ensuring that the child could be adopted in accordance with law.

22. At this stage, learned Senior Counsel for the appellant sought a direction to the concerned doctors to preserve

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-10-2023 13:43:51

evidence for subsequent DNA Test Report by drawing tissues from the foetus in order to use it as a piece of evidence in the ensuing trial to be prosecuted by the appellant herein. We direct the concerned medical experts to have regard to the feasibility of such a procedure being done, in the event of the foetus being alive or in the event the foetus not being alive or is still born and accordingly take steps as sought for by the appellant herein.

23. It is needless to observe that in the event tissues are drawn for the purpose of DNA test the same shall be handed over to the investigating agency by the concerned hospital.

[04] In view of the aforesaid, this Writ Petition is disposed off with the following directions:

(i) This Court hereby permits the petitioner to terminate the pregnancy and direct her to remain present before the Superintendent of MGM Medical College and M.Y. Hospital during the course of today or tomorrow as she deems fit.

(ii) The termination of pregnancy be done after re-examining the health condition of the petitioner by a team of doctors who earlier examined the petitioner on 13.10.2023. If possible they shall remain present in the Operation Theatre.

(iii) In the event the fetus is found alive, then the hospital shall give all the necessary medical assistance including incubation either in the hospital or in any other hospital where the facility is available to ensure that the fetus survives.

(iv) In case the fetus survives, then the State shall ensure all the steps under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 for the purpose of adoption in accordance with law.

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-10-2023 13:43:51

(v) The doctors are directed to preserve the evidence for subsequent DNA test report by drawing tissues from the fetus in order to use it as a piece of evidence and ensuring trial to be prosecuted by the petitioner. In the event tissues are drawn for the purpose of DNA test, the same shall be handed over to the Investigating Agency i.e. Police Station-Pardesipura, Indore in crime No.540/2023.

[05] Copy of the order be handed over to Shri Kamal Kumar Tiwari, learned Government Advocate for the respondent / State who shall communicate the same to MGM Medical College.

[06] In this case, there is nothing reportable for publication in the daily newspaper, therefore, the newspapers shall be restrained from publishing this news in order to protect the dignity of the prosecutrix.

[07] As per the Medical Termination of Pregnancy Act, 1971, the only consent required is of woman, but in case of Minor, the consent for termination is required of her parents, thus consent of termination be taken from her parents before termination of pregnancy.

[08] With the aforesaid, Writ Petition stands disposed off.

Certified Copy today.

(VIVEK RUSIA) JUDGE Divyansh

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-10-2023 13:43:51