Madhya Pradesh High Court
Sajan Damar vs The State Of Madhya Pradesh on 14 May, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 14 th OF MAY, 2024
WRIT PETITION No. 12336 of 2024
BETWEEN:-
SAJAN DAMAR W/O MOHAN DAMAR, AGED ABOUT 42
YEARS, OCCUPATION: LABOURER R/O: GRAM NINAMA
KA TAPRA, TEHSIL SAILANA DISTT. RATLAM (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI LUCKY BIJOLIA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY DEPARTMENT OF
PUBLIC HEALTH AND FAMILY WELFARE
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. PRINCIPAL AND DEAN GOVERNMENT MEDICAL
COLLEGE GRAM BANJALI, DISTRICT RATLAM
(MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH POLICE
STATION SHIVGARH, DIST. RATLAM (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner who is the mother of a victim of rape has approached this
Court seeking direction to the respondents to terminate her pregnancy. At
present, the daughter of the petitioner is a minor child and period of her
pregnancy has crossed 27 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 09.05.2024, this Court had directed the daughter of
the petitioner to appear before the duly constituted Medical Board of
Government Medical College, Ratlam to be constituted by respondent No.2 on
10.05.2024 at 11:00 am. In compliance of the same, the daughter of the
petitioner appeared before the Medical Board for the purpose of examination of
her health and rendering of opinion whether termination of pregnancy would be
safe for her health and life. The Superintendent constituted a Five Members'
Committee comprising of Head of Department of Obstetrics & Gynecology,
Head of Department of Pediatrics, Head of Department of Psychiatry, Head of
Department of Radiology and Head of Department of Surgery and all of them
have given opinion that the patient is a victim of sexual assault and the
termination of pregnancy can be done. However, it has been stated that
hemoglobin of the victim is low and the same is required to be corrected before
the termination of pregnancy can be done.
03. Recently, the Apex Court in the case of XYZ Vs. 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 petition is disposed off with the
following directions:
(i) This Court hereby permits the daughter of the petitioner to terminate
the pregnancy and directs her to remain present before the Superintendent of
MGM Medical College and M.Y. Hospital preferably during course of
tomorrow. The Station In-charge Police Station - Shivgarh, District Ratlam shall
ensure that she is brought to the MGM Medical College and M.Y. Hospital
during course of tomorrow or whenever she desires.
(ii) The Superintendent shall thereafter constitute a team of experts
preferably the experts of the field, who had earlier examined her at Ratlam. They
shall assess her health condition and shall thereafter opine as to when her
pregnancy can be terminated. They shall also specifically examine if
Hemoglobin level of the victim needs to be corrected first before such
termination. If they feel that the same has to be done, then they shall do so
before carrying out the termination of pregnancy. Once they form an opinion
that Hemoglobin level of the victim has reached satisfactory level, then the
termination of pregnancy shall be carried out. At the time of such termination, if
possible, they shall remain personally present in the operation theater.
(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 - Shivgarh, District Ratlam in
Crime No.363/2023.
05. Copy of the order be handed over to Shri Tarun Kushwaha,
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 newspaper agencies shall be restrained from
publishing this news in order to protect the dignity of the prosecutrix.
07. As per the Medical Termination of Pregnancy Act, 1971, the only
consent required is of woman, but in case of Minor, the consent for termination
is required of her parents, thus consent of termination be taken from her parents
before termination of pregnancy.
08. With the aforesaid, this petition stands disposed off.
Certified copy, as per Rules.
(PRANAY VERMA)
JUDGE
Shilpa
