Madhya Pradesh High Court

Shiv Kumar Bhaduria vs The State Of Madhya Pradesh on 27 June, 2024

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                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                      WP No. 16575 of 2024
                                    (SHIV KUMAR BHADURIA Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                          Dated : 27-06-2024
                                Shri Rajneesh Sharma - Advocate for the petitioner.

                                Shri G.K.Agarwal - Govt. Advocate for the respondent/State.

The present petition under Article 226 of the Constitution of India has been filed seeking relief of writ of mandamus to direct the respondents to constitute a medical team of three registered medical practitioners to abort the fetus of daughter of petitioner who is victim of offence in terms of Section 376

of IPC and POCSO Act.

2. It is submitted by learned Counsel for the petitioner that an FIR under Section 376 (3), 376 (1) IPC and Sections 3, 4, 5 and 6 of POCSO Act has been registered on account of sexual assault being caused to the daughter of the present petitioner. The daughter of the present petitioner got pregnant on account of such crime being committed against her and investigation in the matter is pending after lodging of FIR at Crime No. 347 of 2024 before Police Station Ambah, Distt. Morena. It is contended in the petition that the accused of the case made forcible sexual assault on the victim as a result of which she is

carrying the pregnancy.

3. It is further contended that the victim is minor aged around 13 years. It is contended that not only her life would be in danger but she will be subjected to great psychological, mental and physical distress, if she is made to deliver a child conceived as a result of crime committed with the victim. It is the case of the petitioner that pregnancy of the daughter of the petitioner may be allowed to be terminated.

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4. This Court vide order dated 20.06.2024 had directed the Dean, G.R. Medical College, Gwalior to constitute a committee and carry out detailed medical examination of the victim by experts, one of whom would be from department of Obstetrics and Gynecology and another from the department of Radiology.

5. Today medical report has been submitted by learned Counsel for the State which indicates that victim was medically examined on 26.06.2024 by the medical board of five experts of medical college and the victim was found to be 16 years old having pregnancy of 14 weeks and six days. It is opined in the report dated 26.06. 2024 that the pregnacy can be terminated with appropriate

facilities. Thus, it is opined that medical termination of pregnancy is possible.

6. Let the said report be made part of record in this file.

7. From perusal of the record of the case it is evident that the victim is minor and it is alleged that she has conceived fetus on account of assault by the accused amounting to rape.

8. Sections 3 and 5(1) of the Medical Termination of Pregnancy Act reads 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) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

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(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 to her 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.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to 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 mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

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

4 WP-16575-2024 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."

9. This Court is dealing with the case of a child aged about 16 years, who is carrying a child of a rapist and victim as well as father of the victim do not want that victim should give birth to the child of a rapist. Not only this, the child will also have social stigma throughout her life and the girl, who is 16 years of age, has to deliver a child which will certainly result in life threat to the pregnant minor girl.

10. The Supreme Court in the case of Murugan Nayakkar Vs. Union of India & Ors. in Writ Petition (Civil) No.749/2017 by order dated 6/9/2017 has held as under:-

"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 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 that the termination of pregnancy should be carried out. That 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.

We have heard Ms. Sneha Mukherjee, learned counsel appearing for the petitioner, Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra.

Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is

5 WP-16575-2024 going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.

In view of the aforesaid premise, we direct the petitioner to remain present at the Sir J.J. Group of Hospitals, Mumbai in the evening of 7.9.2017 so that the termination of pregnancy can be carried out preferably on 8.9.2017. Mr. Nishant R. Katneshwarkar shall apprise the Dean of Sir J.J. Group of Hospitals, Mumbai so that he/she can make necessary arrangements for termination of the pregnancy. A copy of the order passed today be handed over to learned counsel for the petitioner and Mr. Nishant R. Katneshwarkar, learned standing counsel for the State of Maharashtra.

The writ petition is accordingly disposed of. There shall be no order as to costs."

11. In light of the aforesaid judgment, considering the age of the girl, trauma which she has to suffer and the agony she is going through at present and also keeping in view the aforementioned medical report, this Court is of the opinion that the prayer made by petitioner deserves to be allowed and is accordingly allowed.

12. Concerning authority of District Hospital, Morena is directed to carry out medical termination of pregnancy of the petitioner immediately. If suitable facilities are not available in District Hospital Morena, then the said authorities shall get necessary arrangement done with regard to termination of pregnancy at G.R. Medical College, Gwalior. The authorities concerned are directed to admit the daughter of the petitioner latest by 1st of July, 2024 and termination of pregnancy be carried out as early as possible subject to medical complication. The fetus shall be protected and shall be sent for DNA testing along with blood sample of the petitioner as well as the blood sample of the accused.

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13. It is needless to mention that the specialists of the department of the Gynecology and Anesthesia will remain present at the time when termination of pregnancy will be carried out, as the girl is of tender age and there may be threat to life of girl also. After termination of pregnancy is carried out, the State of Madhya Pradesh shall ensure post-operative care of the girl-petitioner.

1 4 . Though this court is already granted permission to carry out termination of pregnancy, but still it is observed that the doctors who will be part of process shall have immunity in the event of occurrence of any litigation arising out of order passed by this Court.

15. It is directed that before the termination of pregnancy of petitioner, father of petitioner shall submit his affidavit before the CJM, Morena to the effect that she was subjected to rape by accused and has filed the present writ petition for medical termination of pregnancy of his minor daughter and in the light of the permission granted by this Court, he is ready to get the pregnancy of his minor daughter terminated. Petitioner as well as her father shall also submit

an affidavit to the Investigating Officer to the effect that since they have sought medical termination of pregnancy on the allegation of rape by accused, therefore they would not resile from their statement even during the trial.

16. The Investigating Officer is directed to obtain the certified copy of the said affidavit and shall keep the same in the case diary as well as shall also produce it before the Board and only after its production, the Board shall terminate the pregnancy.

17. With the aforesaid, writ petition stands allowed.

(VIVEK JAIN) V. JUDGE

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