X vs The State Of Madhya Pradesh
2023 Latest Caselaw 17697 MP

                                     -1-


       IN THE HIGH COURT OF MADHYA PRADESH
                    AT I N D O R E
                          BEFORE
              HON'BLE SHRI JUSTICE VIVEK RUSIA
                  ON THE 25th OF OCTOBER, 2023


                  WRIT PETITION No. 27278 of 2023

BETWEEN:-
X (MADHYA PRADESH)
                                                         .....PETITIONER
(BY SHRI ANOPAM CHOUHAN, ADVOCATE)

AND
   THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1. DEPARTMENT OF HEALTH VALLABH BHAWAN BHOPAL (MADHYA
   PRADESH)
   STATE OF MADHYA PRADESH WOMEN AND CHILD DEPARTMENT
2. THROUGH PRINCIPAL SECRETARY VALLABH BHAWAN BHOPAL
   (MADHYA PRADESH)
     CHIEF MEDICAL AND HEALTH OFFICER MY HOSPITAL DISTRICT
3.
     INDORE (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE DHAR (MADHYA PRADESH)
     OFFICER IN CHARGE OF POLICE STATION P.S. KANWAN DIST. DHAR
5.
     (MADHYA PRADESH)
     HEAD OF GYNECOLOGIST DEPARTMENT MY HOSPITAL INDORE
6.
     (MADHYA PRADESH)
                                                      .....RESPONDENTS
(BY SHRI AMIT RAWAL, GOVERNMENT ADVOCATE)
         This petition coming on for hearing this day, the court passed the
following:
                                ORDER

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 13 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 19.10.2023, 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 a Six Members' Committee comprising Associate Professor of Department of Obstetrics & Gynaecology, Assistant Professor of Department of General Medicine, Assistant Professor of Department of Obstetrics & Gynaecology, Assistant Professor, Department of Radiology, Assistant Professor of Department of Psychiatry and Assistant Professor, Department of Anesthesia and all of them gave opinion that the patient is a victim of sexual assault and the termination of pregnancy can be done.

03. Recently, the Apex Court in the case of XYZ v/s The State of Gujarat & 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 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 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 tomorrow or 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 19.10.2023. If possible they shall remain present in the Operation Theatre.

(iii) In the event the foetus 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 foetus 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.

(v) The doctors are directed to preserve the evidence for subsequent DNA test report by drawing tissues from the foetus 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 - Kanwan, District - Dhar in Crime No.592/2023.

05. Copy of the order be handed over to Shri Amit Rawal, 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. With the aforesaid, this petition stands disposed of.

Certified copy, as per Rules.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2023.10.25 13:33:52 +05'30'