Madhya Pradesh High Court
Kripalal Singh Bhilala vs The State Of M.P. Through Prinicipal ... on 27 June, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 27th OF JUNE, 2024
WRIT PETITION No. 16744 of 2024
(KRIPALAL SINGH BHILALA Vs THE STATE OF M.P. THROUGH
PRINCIPAL SECRETARY AND OTHERS)
Appearance :
(SHRI HARSH KUMAR PATIDAR - ADVOCATE FOR PETITIONER)
(SHRI A.S. PARIHAR - PANEL LAWYER FOR THE RESPONDENT/STATE)
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ORDER
This petition has been filed seeking the following reliefs:
"(i) Issue a writ in the nature of mandamus directing the
respondents to medically terminate the pregnancy of the victim;
(ii) Any other relief deemed fit and proper in the facts and
circumstances of the case may be grated in favour of the
petitioner.
(iii Costs of this petition may kindly be awarded to the
petitioner."
2. The writ petition is filed by the father of the rape victim. She was
minor at the relevant time when the incident has taken place. It is alleged
that during the period from 01.02.2024 to 11.06.2024, the victim was
sexually assaulted by the accused and thereafter an FIR for the offences
punishable under Sections 376(2)(n), 376(1), 376(3), 342, 506 of IPC;
Sections 5j(ii), 5l, 6, 3, 4 of the POCSO Act and Sections 3(2)(v), 3(1)(w)
(ii) and 3(1)(da) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 was lodged. She was medically
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examined and was found pregnant having 24 weeks' pregnancy. Hence,
this petition.
3. Vide order dated 24.06.2024, a coordinate Bench of this Court has
passed the following orders :
"The issue involved in the present petition relating to
termination of pregnancy and, therefore, the petitioner shall
appear before the Medical Board of Hamidia College, Bhopal
on 25.06.2024 at 11:00 AM and a report be obtained from
Medical Board.
The learned Government Advocate shall submit the medical
report before this Court on 27.06.2024.
..."
4. Accordingly, the matter is listed today and is taken up for
consideration.
5. The report of the Medical Board dated 26.06.2024 is in the
following terms :
6. Opinion by Medical Board for termination of
pregnancy :
a) Allowed : -
b) Denied : Denied
The gestational age of the fetus is more than 24 weeks
hence medical termination cannot be performed as per MTP
Act Amendment 2021. In case of permission or order of MTP
by honourable court such termination can be performed with
all the explained risk of anticipated and unanticipated
complications related to termination of such high risk teenage
pregnancy. Termination of pregnancy at this gestational age
and continuation of pregnancy both carries risk of
complications.
7. Physical fitness of the woman for the termination of
pregnancy :
'Yes' "
WP-16744-2024
6. It is pointed out that it will be very difficult for a rape victim to
carry the pregnancy and will not be in the interest of the mother as the
same will cause great impact on her physical and mental status as well as
the child is born alive. In terms of the Medical Termination of Pregnancy
Act, 1971, pregnancy can be terminated upto 24 weeks subject to opinion
of the Medical Board. The petition is filed to secure the life of the minor
victim as unwarranted pregnancy may have adverse effect on her
physical, mental and social status and unnecessarily she will be liable to
bear the responsibility of an unwarranted child without any fault on her
part. It will be very difficult for her to face the society.
7. Insofar as the Medical Termination of Pregnancy Act, 1971 is
concerned, the permission can always be granted for termination of
unwarranted pregnancy prior to 24 weeks subject to approval of the
Medical Board. The relevant provisions under the Medical Termination of
Pregnancy Act, 1971 which deal with the cases of termination of
pregnancy are 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 twenty
weeks but does not exceed twenty-four weeks in case of
such category of woman as may be prescribed by rules
made under this Act, if not less than two registered
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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; or ..
...
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."
8. In similar circumstances, as in the present case where age of the
fetus is more than 24 weeks, the Hon'ble Supreme Court in the case of
XYZ vs State of Gujarat and others reported in 2023 SCC OnLine SC
1573 has granted permission to the appellant to terminate her pregnancy.
It has been observed thus :
10. We find that in the absence of even noticing the aforesaid portion of
the report, the High Court was not right in simply holding that "the
age of the foetus is almost 27 weeks as on 17.08.2023 and considering
the statements made by the learned advocate for the petitioner-victim
and the averments made in the application the petition for medical
termination of pregnancy stands rejected", which, in our view is ex
facie contradictory. Being aggrieved by the said order the appellant
has knocked the doors of this Court seeking expeditious relief.
11. At this stage, we restrain ourselves from observing anything on the
order passed by the learned Single Judge of the High Court in a
disposed of matter on 19.08.2023 pursuant to the order passed by us on
the said date though we have to say that it was highly improper.
12. Pursuant to the order of this Court dated 19.08.2023 as extracted
hereinabove, the report of the Medical Superintendent, Dr. Kiran C.
Patel Medical College & Research Institute, Bharuch and Chief
District Medical officer-cum-Civil surgeon General Hospital, Bharuch,
Gujarat has been placed on record, which states that the petitioner's
pregnancy is of 27 weeks 2 days +/- 2 weeks duration and the live
intrauterine foetus weights around 1088 grams as per the ultra
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sonography done on 19.08.2023. Paragraphs 3 to 6 of the report reads
as under:--
"3. There is no indication for termination of pregnancy as per
Maternal Physical Health but as per history given by survivor this
pregnancy is due to sexual assault with her, continuation of this
pregnancy can affect her mental health and in addition survivor want
to terminate pregnancy; Medical Termination of Pregnancy (MTP) at
this stage of pregnancy can be done in this hospital if Honourable
Court Permits.
4. In that case the Medical Termination of Pregnancy would be done
first by induction of Labour and if indicated then by Hysterotomy
procedure after taking consent of survivor & explaining due risks to
maternal health and fetal outcome.
5. At present the survivor is clinically fit for above mentioned
procedure.
6. The Medical Termination of Pregnancy would not adversely affect
child bearing capacity and General Health of the survivor in future."
13. In Indian society, within the institution of marriage, generally
pregnancy is a reason for joy and celebration and of great expectation,
not only for the couple but also for their families and friends. By
contrast, pregnancy outside marriage, in most cases, is injurious,
particularly, after a sexual assault/abuse and is a cause for stress and
trauma affecting both the physical and mental health of the pregnant
woman the victim. Sexual assault or abuse of a woman is itself
distressing and sexual abuse resulting in pregnancy compounds the
injury. This is because such a pregnancy is not a voluntary or mindful
pregnancy.
14. In Suchita Srivastava v. State (UT of Chandigarh), (2009) 9 SCC 1,
this Court expressed that the right of a woman to have reproductive
choice is an insegregable part of her personal liberty, as envisaged
under Article 21 of the Constitution. She has a sacrosanct right to her
bodily integrity.
15. In Sarmishtha Chakrabortty v. Union of India Secretary, (2018) 13
SCC 339; this Court, considered the medical report and held that
unless the pregnancy was terminated, the life of the mother and that of
the baby to be borne would be in great danger and, therefore,
permitted termination of the pregnancy.
16. A three-Judge Bench of this Court in Murugan Nayakkar v. Union
of India, Writ Petition (Civil) No. 749 of 2017, disposed of on
06.09.2017, while considering the case of a minor petitioner-survivor
of alleged rape and sexual abuse, held that it would be appropriate
that termination of pregnancy be allowed in accordance with the
opinion of the Medical Board constituted by an order of this Court, to
the effect that termination of pregnancy should be carried out. A
direction was issued that on a very next date i.e. 07.09.2017, the
petitioner was to be present so that on 08.09.2017 the termination of
pregnancy could be carried out.
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17. More recently, in the case of X v. The Principal Secretary, Health
and Family Welfare Department, Government of NCT of Delhi, 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.
20. In view of the above discussion and on perusal of the latest medical
report we permit the appellant to terminate her pregnancy. We direct
the appellant to remain present before the KMCRI Hospital, Bharuch,
Gujarat during the course of the day, today (21.08.2023) or 09 : 00
A.M. tomorrow (22.08.2023) as she deems fit so that the termination of
pregnancy could be carried out preferably during the course of the day
today (21.08.2023) or tomorrow i.e. 22.08.2023."
9. In the case in hand, the minor is a rape victim. She got pregnant as
an outcome of an unfortunate incident. She has already been examined by
the Medical Board in terms of the order of this Court and the opinion
given by the Medical Board is that the pregnancy is more than 24 weeks
and can be terminated in case of permission or order of MTP by Hon'ble
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Court. The continuance of pregnancy would involve a risk to the life of
pregnant woman or of grave injury to her physical or mental health. Since
there is risk to the life of the pregnant woman and of grave injury to her
physical and mental health, this Court cannot remain a silent spectator to
the agony of minor undergoing torture and has to act and take a decision.
10. Under these circumstances and considering the relevant provisions
of the Medical Termination of Pregnancy Act, 1971 and the judgment of
the Hon'ble Supreme Court cited above and looking to the fact that the
minor is a rape victim and her physical and mental health is to be taken
note of by this Court, the respondents are directed to permit the victim to
terminate her pregnancy.
11. Accordingly, this Court permits termination of pregnancy subject to
the following conditions :
(i) The procedure of termination of pregnancy will be
carried out in the presence of the expert team of at least 3
doctors. The expert doctors will explain to the family
members as well as the petitioner the risk of getting the
termination of her pregnancy and other related factors.
(ii) Every care and caution will be taken by the doctors
while terminating the pregnancy. All medical attention and
other medical facilities including that of a presence of a
Pediatrician as well as a Radiologist and other required
doctors will be made available to the victim.
(iii) The post operative care, upto the extent required, will
be extended to the victim. It will be the duty of the State
Government to take care of the child, if born alive.
WP-16744-2024
(iv) The doctors will ensure that a sample from the fetus is
protected for DNA examination and will be handed over to
the prosecution for using in the criminal case.
(v) The victim may appear before the doctors as early as
possible and a specialized team of doctors to take a decision
when to terminate the pregnancy.
(vi) The procedure to be carried out as expeditiously as
possible taking all precautions and measures as required in
the matter.
12. With these observations, the petition is disposed off finally. No
order as to costs.
(VISHAL MISHRA)
V. JUDGE
VV
SOUMYA Digitally signed by SOUMYA RANJAN DALAI
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH COURT
OF MADHYA PRADESH BENCH INDORE,
RANJAN
2.5.4.20=f4d2118683e84322bb5797cf28ee6
0671538b737cf52962d84d7b527897e53ac,
postalCode=452001, st=Madhya Pradesh,
serialNumber=D74A523F0B488FBFFD2C0E5
DALAI
6BCCF048E157C02DF97135D7FF9EBCD7EB0
4D698F, cn=SOUMYA RANJAN DALAI
Date: 2024.06.28 17:45:43 +05'30'
