Madhya Pradesh High Court
Victim X vs The Superintendent Of Police ... on 9 May, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 9 th OF MAY, 2024
WRIT APPEAL No. 1078 of 2024
BETWEEN:-
VICTIM X THROUGH HER NATURAL GUARDIAN
FATHER SANTOSH SEN S/O RAMFAL SEN AGED ABOUT
50 YEARS, R/O H. NO. 173/7, NEAR HANUMAN MANDIR,
BHEEMNAGAR, POLICE STATION ARERA HILLS,
BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY MR. HRITVIK DIXIT AND MS. PRIYANKA TIWARI - ADVOCATES)
AND
1. T H E SUPERINTENDENT OF POLICE
DEPARTMENT, BHOPAL (MADHYA PRADESH)
2. STATION HOUSE OFFICER, POLICE STATION
ARERA HILLS, BHOPAL (MADHYA PRADESH)
3. CHIEF MEDICAL AND HEALTH OFFICER,
GOVERNMENT JAI PRAKASH HOSPITAL, 1250,
TULSI NAGAR, BHOPAL (MADHYA PRADESH)
4. DEAN GANDHI MEDICAL COLLEGE AND
HAMIDIA HOSPITAL, ROYAL MARKET, SULTANIA
ROAD, BHOPAL (MADHYA PRADESH)
5. CHIEF MEDICAL AND HEALTH OFFICER, PUBLIC
HEALTH AND FAMILY WELFARE DEPARTMENT,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY MR. HARPREET SINGH RUPRAH - ADDITIONAL ADVOCATE
GENERAL)
Signature Not Verified
Signed by: PREMSHANKAR
MISHRA
Signing time: 5/9/2024
12:56:46 PM
2
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
We have received a sealed envelope from the Dean and Chief Executive
Officer, Gandhi Medical College, Bhopal. It was opened in the court which
contains the report of doctors.
2. This appeal has been filed assailing the order dated 06.05.2024 passed
by the learned Single Judge in W.P. No.11788 of 2024 refusing the prayer of the
petitioner for termination of her pregnancy.
3. It is the case of the petitioner that she is a minor aged around 17 years.
She was sexually assaulted and raped by accused, against which, an FIR has
been registered and criminal prosecution has been taken up. When the factum
of developing pregnancy came to the knowledge of the family members, she got
scared. When her mother noticed the physical changes in her and it was
disclosed that she had developed the pregnancy due to the sexual assault. She
made an application to the Gandhi Medical College and Hamidia Hospital,
Royal Market, Sultania Road, Bhopal seeking termination of her pregnancy. Her
application was not accepted by the authorities owing to the fact that on
medical examination of the petitioner it was found that she has developed more
than 24 weeks' pregnancy. The report on record indicates that she is carrying a
pregnancy of between 26 to 28 weeks. Hence, she approached this Court by
filing the instant writ petition. The writ court considering the said aspect of the
matter and placing reliance upon the report submitted by the Medical Board and
the fact that the period of Gestation (POG) is 28 weeks and 3 days as on
01.05.2024 and since the Medical Board has denied the termination of
pregnancy, the writ petition was dismissed. Assailing the same, this writ appeal
has been filed.
4. It is argued by the learned counsel for the appellant that the petitioner being
a rape victim, is having every right to get the termination of her pregnancy. This
Court on 07.05.2024 took note of the said aspect of the matter and directed the
State counsel to call for a report from the Medical Board. The matter was
posted for hearing on 08.05.2024. The report of the Medical Board was
produced before the Court on 08.05.2024. After examining the report and
considering the provisions of the Medical Termination of Pregnancy Act, 1971,
the Court, in order to find out the possibility of termination directed the
petitioner to undergo the medical examination and the Medical Board was
directed to submit a fresh report by 09.05.2024. In pursuance to the directions
given by this Court on 08.05.2024, the petitioner was again examined by the
team of doctors and a report has been submitted dated 08.05.2024, which reads
as follows:-
"The gestational age of the fetus is more than 24 weeks hence
medical termination can not be performed as per MTP Act
amendment 2021. In case of permission of MTP by honorable court
such termination can be performed with all the explained risk of
anticipated and unanticipated complications in relation to
termination of Rh negative teenage pregnancy (high risk), provided
risk of termination is same at this gestation and full term
pregnancy."
5. From a perusal of the report so submitted, it appears that the
examination has been conducted by the Medical Board including Professors,
Associate Professors, Surgeon, Pediatrician and even a Radiologist. It is seen
that the doctors have not pointed out any risk of not getting the pregnancy
terminated. However, as there is a bar under the Medical Termination of
Pregnancy Amendment Act, 2021. For terminating pregnancies exceeding 24
weeks, it is observed that termination can be performed with all the explained
risk of the anticipated and unanticipated complications in relation to termination
of Rh negative teenage pregnancy (high risk), provided risk of termination is
same at this gestation and full term pregnancy. The report clearly indicates that
the pregnancy can be terminated subject to certain risks. The risk factors will
always be explained to the petitioner.
6. The Hon'ble Supreme Court in a series of judgments had an occasion to
consider the aspect of termination of pregnancies exceeding 24 weeks and
recently the Hon'ble Supreme Court in the case of X vs. Principal Secretary,
Health and Family Welfare Department reported in AIR 2022 SC 4917 has
considered the aforesaid aspect of the matter including the choice of the woman
to get the pregnancy terminated and other socio-economic factors including the
physical health condition of the woman has permitted for terminating the
pregnancy. The aforesaid judgment was again followed by the Hon'ble Supreme
Court in the case of XYZ vs. State of Gujarat and others, reported in 2023 SCC
OnLine SC 1658, wherein, the Hon'ble Supreme Court taking note of several
aspects of the matter has permitted for termination of pregnancy.
7. In the present case, the petitioner is a rape victim. She was a minor at the
relevant time. She was also suffering from some physical disability as has been
pointed out in the petition. Permitting for carrying out the pregnancy of a
woman who is not in a position to manage herself will be creating great
problems to her in future life. Even the other family aspects are also required to
be considered.
8. Under these circumstances and following the judgments passed by the
Hon'ble Supreme Court in the aforesaid cases, this Court feels it appropriate to
permit the termination of pregnancy of the petitioner subject to the following
conditions:-
(i) The procedure of termination of pregnancy will be carried out in the
presence of the expert team of 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 also other 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 her.
(iii) The post operative care up to the extent required, will be extended to
the petitioner. It will be the duty of the State Government to take care of the
child, if born alive.
(iv) The doctors will also ensure that a sample from the fetus is protected
for DNA examination and as and when required will be handed over to the
prosecution for using in the criminal case itself.
9. At this stage, appellant's counsel submits that the petitioner is available
to appear before the doctors today itself. Hence, the petitioner may appear
before the doctors today itself and a specialized team of doctors to take a
decision when to terminate the pregnancy today or by earliest tomorrow. All
necessary care and caution be taken by the doctors while carrying out the
procedure for termination of pregnancy.
10. With the aforesaid observations, this appeal is allowed and disposed
off.
11. The report received to be resealed and kept back in the sealed
envelope.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
psm
