Vanshi Lal Sondhiya vs The State Of Madhya Pradesh
2024 Latest Caselaw 5724 MP

Madhya Pradesh High Court

Vanshi Lal Sondhiya vs The State Of Madhya Pradesh on 26 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                            1                 W.P. No.3575/2024


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 26th OF FEBRUARY, 2024
              WRIT PETITION No. 3575 of 2024
BETWEEN:-
FATHER OF PROSECUTRIX (NAME OF FATHER
OF PROSECUTRIX HAS BEEN MASKED TO HIDE
THE   IDENTITY   OF  PROSECUTRIX)   R/O
KHADAGADA     POLICE   STATION  MAIHAR
DISTRICT SATNA (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI AMAN PATEL - ADVOCATE )

AND
1.   THE STATE OF MADHYA PRADESH
     THROUGH    PRINCIPAL  SECRETARY
     DEPARTMENT OF HOME MANTRALAYA
     VALLABH BHAWAN, BHOPAL (MADHYA
     PRADESH)

2.   PRINCIPAL SECRETARY, DEPARTMENT OF
     HEALTH,     MANTRALAYA,    VALLABH
     BHAWAN BHOPAL (MADHYA PRADESH)

3.   PRINCIPAL SECRETARY, DEPARTMENT OF
     WOMAN AND CHILD DEVELOPMENT,
     MANTRALAYA,     VALLABH    BHAWAN
     BHOPAL (MADHYA PRADESH)

4.   SUPERINTENDENT OF POLICE, MAIHAR,
     DISTRICT MAIHAR, (MADHYA PRADESH)

5.   CHIEF MEDICAL OFFICER, DISTRICT
     HOSPITAL   REWA  DISTRICT REWA
     (MADHYA PRADESH)

6.   POLICE STATION TALA, THROUGH S.H.O.
     DISTRICT MAIHAR (MADHYA PRADESH)

                                           .....RESPONDENTS
(BY SMT. SWATI ASEEM GEORGE - DEPUTY GOVERNMENT ADVOCATE )
                                    2                     W.P. No.3575/2024


      This petition coming on for admission this day, the court passed the
following:
                                   ORDER

This Petition under Article 226 of Constitution of India has been filed seeking following reliefs:

"a. To issue a writ/writs/order/direction/directions against the respondents to terminate the pregnancy of the minor daughter of the petitioner because she had been raped. b. To direct the respondents to give the suitable - compensation amount which this Hon'ble Court deems fit and proper under the facts and circumstances of the case.

c. Any other relief, which this Hon'ble Court deem fit and proper under the facts and circumstance of the case, may also be pass in favour of the petitioner."

2. This Court by order dated 15.02.2024 had directed the CMHO, District Satna to constitute a team of Doctors including Gynecologist and Anesthetist to medically examine the prosecutrix to verify as to whether medical termination of her pregnancy is possible or not?

3. Accordingly, on 21.02.2024, report of Committee was produced in a sealed cover. According to the said report dated 20.02.2024, age of fetus was found to be 28-30 weeks. However, mental condition of prosecutrix was also found to be normal and accordingly, in the light of order dated 12.11.2021 issued by Department of Public Health and Family Welfare, Government of M.P., it was resolved by the Committee that prosecutrix be examined by the Divisional Medical Board. Accordingly, by order dated 21.02.2024, petitioner was directed to produce the prosecutrix before Divisional Medical Board on 22.02.2024 and the case was taken up on 23.02.2024.

4. On 23.02.2024, report of Divisional Medical Board was received in a sealed cover, according to which since the daughter of petitioner was carrying pregnancy of 28 to 30 weeks therefore, medical termination of her pregnancy was not possible. Even otherwise, pregnancy can be terminated by adopting surgical manner but it would be dangerous to her life. Even then counsel for petitioner insisted that petitioner and his wife are ready to give an undertaking on behalf of themselves as well as on behalf of the girl that in case if anything happens to the life of the girl during operation or thereafter, then they themselves would be responsible for the same and would neither allege anything against the Doctors nor shall claim any compensation either from the Doctors or the State because they want termination of pregnancy at any cost. Accordingly, this Court had granted two days' time to petitioner and his wife to submit an affidavit with regard to oral submission made by counsel for petitioner.

5. Today vide I.A. No.2913/2024, petitioner and his wife have filed their affidavits, which read as under:

"le{k ekuuh; e/;izns'k mPp U;k;ky; eq[; ihB] tcyiqj ¼e-iz-½ fjV ;kfpdk Ø-3575@2024

;kfpdkdrkZ & xxxx (firk dk uke ftls Nqik;k tk jgk gS) fo#) izR;FkhZx.k@fjlikUMsUV & e-iz- 'kklu o vU;

'kiFki=

eS xxxx (firk dk uke ftls Nqik;k tk jgk gS) firk lhrkjke] vk;q yxHkx 44 o"kZ] fuoklh xzke [kMxMk] Fkkuk rkyk] ftyk eSgj ¼e-ç-½ dk gksdj fuEu dFku djrk gwa %& 6483 4463 0753 1- ;g fd eSa 'kiFkiwoZd dFku djrk gwa fd xxxx (ftls Nqik;k tk jgk gS) esjh uckfyx iq=h gS ftlds }kjk fnukad 01-02-2024 dks eksuw mQZ jes'k lksf/k;k ds fo#) Fkkuk rkyk ftyk eSgj es vijk/k Ø- 22@2024 /kkjk 376¼1½] 376¼2½] 376¼3½ Hkk-n-la- ,oa /kkjk 3] 4] 5] 6 ikDlks ,DV ds varxZr ntZ djk;k x;k FkkA

2- ;g fd 'kiFkiwoZd dFku djrk gwa vijk/kh eksuw mQZ jes'k lksf/k;k ds }kjk esjh uckfyx iq=h ds lkFk cykRdkj dj fn;k Fkk ftl dkj.k og xHkZorh gks x;h bl dkj.k eS xHkZikr djkus ckor~ mä fjV ;kfpdk nk;j dh xbZ gS] tks ekuuh; U;k;ky; ds le{k fopkjk/khu gSA 3- ;g fd 'kiFkiwoZd dFku djrk gwa fd eSa viuh iq=h xxxx (ftls Nqik;k tk jgk gS) dh Hkfo"; dh 'kkfjfjd ;k ekufld ifjfLFkfr dks ns[krs gq;s esjh ukckfyx iq=h ds lkFk gq;s cykRdkj ls mRiUu xHkZ dk xHkZikr djkuk pkgrk gwA 4- ;g fd 'kiFkiwoZd dFku djrk gwa ;fn xHkZikr ;k v‚is'ku ds nkSjku ;k ckn es esjh iq=h dks tku dks [krjk ;k vkSj dqN gksrk gS rks eS 'kiFkdrkZ Lo;a ftEesnkj jgwx a k 5- ;g fd 'kiFkiwoZd dFku djrk gwa fd eSa 'kiFkdrkZ xHkZikr djus okys fdlh Hkh M‚DVj ds f[kykQ u rks dksbZ vkjksi yxkmxk vkSj uk gh M‚DVj ;k jkT; ls fdlh Hkh rjg ds eqvkots dk nkok d:axkA LFkku & tcyiqj] fnukad & 24-02-2024 'kiFkdrkZ

lR;kiu eS xxxx (firk dk uke ftls Nqik;k tk jgk gS) mijksä 'kiFkdrkZ vkt fnukad 24-02-2024 dks LFkku tcyiqj esa gLrk{kj dj lR;fir djrk gwa fd 'kiFki= dh dafMdk 1 ls 5 rd esa of.kZr tkudkjh esjh futh Kku es lR; o lgh gS lR;kiudrkZ"

"le{k ekuuh; e/;izns'k mPp U;k;ky; eq[; ihB] tcyiqj ¼e-iz-½ fjV ;kfpdk Ø-3575@2024

;kfpdkdrkZ & xxxx (firk dk uke ftls Nqik;k tk jgk gS) fo#) izR;FkhZx.k@fjlikUMsUV & e-iz- 'kklu o vU;

'kiFki=

eS xxxx (ekrk dk uke ftls Nqik;k tk jgk gS) ifr xxxx (ftls Nqik;k tk jgk gS)] vk;q yxHkx 38 o"kZ] fuoklh xzke [kMxMk] Fkkuk rkyk] ftyk eSgj ¼e-ç-½ dk gksdj fuEu dFku djrk gwa %& 839615786617 1- ;g fd eSa 'kiFkiwoZd dFku djrh gwa fd xxxx (ekrk dk uke ftls Nqik;k tk jgk gS) esjh uckfyx iq=h gS ftlds }kjk fnukad 01-02- 2024 dks eksuw mQZ jes'k lksf/k;k ds fo#) Fkkuk rkyk ftyk eSgj es vijk/k Ø- 22@2024 /kkjk 376¼1½] 376¼2½] 376¼3½ Hkk-n-la- ,oa /kkjk 3] 4] 5] 6 ikDlks ,DV ds varxZr ntZ djk;k x;k FkkA 2- ;g fd 'kiFkiwoZd dFku djrh gwa vijk/kh eksuw mQZ jes'k lksf/k;k ds

}kjk esjh uckfyx iq=h ds lkFk cykRdkj dj fn;k Fkk ftl dkj.k og xHkZorh gks x;h bl dkj.k eS xHkZikr djkus ckor~ mä fjV ;kfpdk nk;j dh xbZ gS] tks ekuuh; U;k;ky; ds le{k fopkjk/khu gSA 3- ;g fd 'kiFkiwoZd dFku djrk gwa fd eSa viuh iq=h xxxx (ftls Nqik;k tk jgk gS) dh Hkfo"; dh 'kkfjfjd ;k ekufld ifjfLFkfr dks ns[krs gq;s esjh ukckfyx iq=h ds lkFk gq;s cykRdkj ls mRiUu xHkZ dk xHkZikr djkuk pkgrk gwA 4- ;g fd 'kiFkiwoZd dFku djrh gwa ;fn xHkZikr ;k v‚is'ku ds nkSjku ;k ckn es esjh iq=h dks tku dks [krjk ;k vkSj dqN gksrk gS rks eS 'kiFkdrkZ Lo;a ftEesnkj jgwx a hA 5- ;g fd 'kiFkiwoZd dFku djrh gwa fd eSa 'kiFkdrhZ xHkZikr djus okys fdlh Hkh M‚DVj ds f[kykQ u rks dksbZ vkjksi yxkmxk vkSj uk gh M‚DVj ;k jkT; ls fdlh Hkh rjg ds eqvkots dk nkok d:axhA LFkku & tcyiqj] fnukad & 24-02-2024 'kiFkdrhZ

lR;kiu eS xxxx (ekrk dk uke ftls Nqik;k tk jgk gS) mijksä 'kiFkdrhZ vkt fnukad 24-02-2024 dks LFkku tcyiqj esa gLrk{kj dj lR;fir djrk gwa fd 'kiFki= dh dafMdk 1 ls 5 rd esa of.kZr tkudkjh esjh futh Kku es lR; o lgh gS lR;kiudrhZ"

6. It is the case of petitioner and his wife that victim is a minor and therefore, affidavits given by them are always on behalf of their minor girl and there is no need to obtain the willingness of the prosecutrix.

7. The guardians have a valuable right to take a decision regarding consequences, which will flow from the termination of advanced pregnancy. Even otherwise, the Supreme Court in the case of Suchita Shrivastava and Another Vs. Chandigarh Administration reported in (2009) 9 SCC 1 has held that Section 3(4)(a) and 5(1) of Medical Termination of Pregnancy Act, 1971 create exceptions of rule of pregnant woman's consent namely, when pregnant woman is below 18 years. Thus, in this case, the undertaking given by the parents of the prosecutrix does not require her consent. Hence, it is held that

undertaking given by petitioner and his wife would be equally binding on the prosecutrix.

8. The prosecutrix is aged about 16 years as her date of birth as per school record is 21.01.2008.

9. It is submitted by counsel for petitioner that the said date of birth was consciously got recorded by the parents of the prosecutrix and they were aware of her date of birth. Thus, it is submitted that the date of birth recorded in the school record is on a conscious and responsible disclosure by parents of prosecutrix. It is further submitted that in fact prosecutrix was got admitted in school by the parents themselves and not by any other person including relatives.

10. Since, petitioner has also relied upon the school certificate, therefore, it is clear that submission made by counsel for petitioner that it was the petitioner or his wife, who got the prosecutrix admitted in the school and it was only on the disclosure made by petitioner and his wife, the date of birth of prosecutrix was recorded in the school register and in view of the statement made by counsel for petitioner that the disclosure of date of birth of prosecutrix was a conscious and responsible disclosure by petitioner and his wife, therefore, there is no reason to disbelieve the school certificate. Once it has been proved beyond reasonable doubt that date of birth of prosecutrix is 21.01.2008, therefore, it is clear that not only on the date of offence she was minor but even today she is minor.

11. The victim of a rape cannot be compelled to give birth to a child of the rapist. The conditions enumerated in the Act of 1971 are fulfilled and pregnancy of the victim can be terminated.

12. Now the only question is that whether the Doctors or the State can be held responsible or can be directed to pay compensation to the victim

or to the parents of victim on account of some mishap, which takes place during the termination of pregnancy?

13. Since it is submitted by counsel for petitioner that petitioner and his wife will bear all the post-operational expenses and if anything happens to the victim, then they are responsible, under these circumstances, at the risk and cost of petitioner, this Court is of considered opinion that medical termination of pregnancy can be permitted.

14. Accordingly, respondents are directed to carry out the termination of pregnancy of daughter of petitioner immediately. The CMHO, District Satna is directed to admit the prosecutrix in case if she is brought by petitioner or her mother. In case if CMHO, District Satna feels that for better treatment the daughter of petitioner is to be sent to any multispeciality hospital, then he can refer her to the said hospital for undergoing the medical termination of pregnancy.

15. Petitioner is directed to positively produce the prosecutrix before CMHO, District Satna latest by tomorrow (27.02.2024).

16. In case if prosecutrix is brought by her father latest by tomorrow (27.02.2024), then pregnancy shall be terminated within a period of one week.

17. This Court has consciously given the time of one week for the reason that on account of any medical complication, if certain precautions or medications are required, then that can be done within the said period of one week. However, termination shall be conducted as early as possible.

18. The Doctors are also directed to preserve the fetus and they are directed not to preserve the fetus in formalin solution. They shall preserve the fetus as per the directives of DNA Test Laboratory. The

preserved fetus shall be immediately handed over to the investigating Agency and the Investigating Officer is directed to send the fetus to DNA Fingerprint Laboratory within a period of two days from the date of seizure of the said fetus.

19. The DNA Fingerprinting Unit is directed to give their report positively within a period of one month from the date of submission of fetus for examination.

20. If the accused has already been arrested, then the blood sample of the accused shall also be sent for comparison purposes.

21. At the cost of repetition, it is needless to mention that in the light of affidavits filed by petitioner and his wife as well as in the light of judgment passed by High Court of Bombay in the case of Shaikh Ayesha Khatoon Vs. Union of India and Others reported in 2018 SCC OnLine Bom 11, the Doctors, who will carry out the medical termination of pregnancy as well as the State Government shall not be responsible and the medical termination of pregnancy shall be conducted only at the risk and cost of parents of the prosecutrix.

22. With aforesaid observation, petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE SR*