Madhya Pradesh High Court
Victim A vs The State Of Madhya Pradesh on 20 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 20 th OF MAY, 2024
WRIT APPEAL No. 1100 of 2024
BETWEEN:-
VICTIM 'A' D/O NOT MENTION OCCUPATION:
THROUGH NATURAL GUARDIAN MOTHER NOT
MENTION (M.P.)
.....APPELLANT
(BY SHRI UMA SHANKAR JAYASWAL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY HOME DEPARTMENT
MANTRALAYA, VALLABH BHAWAN, BHOPAL
(M.P.)
2. THE STATE OF M.P. THROUGH ITS PRINCIPAL
SECR ETARY DEPARTMENT OF HEALTH AND
FAMILY WELFARE MANTRALAYA, VALLABH
BHAWAN, BHOPAL (M.P.)
3. THE STATE OF M.P. THROUGH ITS PRINCIPAL
SECRETARY DEPARTMENT OF WOMEN AND
CHILD DEVELOPMENT MANTRALAYA, VALLABH
BHAWAN, BHOPAL (M.P.)
4. T H E CHIEF MEDICAL AND HEALTH OFFICER
SARDAR VALLABH BHAI PATEL DISTRICT
HOSPITAL SATNA DISTRICT SATNA (M.P.)
5. THE SUPERINTENDENT GOVT. CIVIL HOSPITAL
MAIHAR DISRICT MAIHAR (M.P.)
6. THE SUPERINTENDENT OF POLICE SATNA
DISTRICT SATNA (M.P.)
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 5/20/2024
5:56:06 PM
2
7. THE STATION HOUSE INCHARGE M AIHAR NOW
DISTRICT MAIHAR (M.P.)
.....RESPONDENTS
(BY SHRI RITWIK PARASHAR - GOVERNMENT ADVOCATE)
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Assailing the order dated 23.04.2024 passed by the learned Single Judge in
dismissing Writ Petition No.10278 of 2024, the petitioner is in appeal.
2. The said writ petition was filed by a rape victim through her natural
guardian/mother. The victim was minor at the relevant time when the incident
has taken place. On 09.11.2023 when she was alone in the house, her brother-
in-law (Jija) came there and since then, she was missing. On being recovered,
her statement was recorded and thereafter an FIR for the offences punishable
under Sections 363, 366 and 376(2)(n) of the IPC and Section 5/6 of the
Protection of Children from Sexual Offences Act, 2012 was registered against
the accused.
3. The petition was filed under guardianship of mother of the victim who was
aged about 16 years at the time of commission of the offence. She was
medically examined and was found pregnant having nearly one-and-half month
pregnancy. She moved the writ court seeking the relief of termination of the
pregnancy.
4. 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 writ
petition was 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. The writ court has failed to consider the aforesaid aspect of the matter
and dismissed the writ petition on the ground of admission of the petitioner and
the victim (prosecutrix) that they would not support the prosecution case in the
trial and would make every endeavor to save the accused. It further observed
that the prosecutrix and her mother cannot take a somersault by claiming that no
offence was committed with her, once they got a criminal case registered
against the accused and put the entire machinery in action.
5. The present writ appeal is filed on the ground that 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 reason for terminating the pregnancy is,
permitting the pregnancy to continue will cause a great impact upon the mental
and physical status of the victim, that is what is required to be seen while
permitting for pregnancy in the matter. The writ court has gone to the extent of
criminal case being registered against the accused in the matter and the fact that
the complainant will not be supporting the prosecution case.
6. It is argued before this Court that the petitioner and the victim (prosecutrix)
will always support the case of the prosecution. To the aforesaid effect, they
have filed an affidavit before this Court along with covering memo dated
15.05.2024.
7. Be that as it may, this Court vide order dated 17.05.2024 has directed the
respondents-State to procure the report from the Medical Board regarding
feasibility of termination of pregnancy and other related issues. The said report
is produced before this Court dated 17.05.2024 which shows thus :
"Opinion : Unmarried 21 weeks pregnancy. Pregnancy can be
terminated as per MTP Act safely under two gynecologists."
8. The Medical Board has examined the victim on 17.05.2024 at 4:30 p.m.
and has given the said report pointing out the fact that pregnancy is of 21 weeks
and can be terminated as per the Medical Termination of Pregnancy Act, 1971
safely under the supervision of two gynecologists.
9. 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 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."
10. The Hon'ble Supreme Court in the case of X vs Union of India and others
reported in (2016) 14 SCC 382 has dealt with the aspect of termination of
pregnancy after 20 weeks and has held that Section 5 creates exception to
Section 3 and it permits termination of pregnancy after 20 weeks if it is
necessary to save life of pregnant woman.
11. 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 dated 17.05.2024 and the
opinion given by the Medical Board is that the pregnancy is of 21 weeks and
can be terminated safely under the supervision of two gynecologists. 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.
12. 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,
we are of the considered opinion that as the pregnancy is less than 24 weeks,
the same can safely be permitted to be terminated in terms of Section 5 which
creates an exception to Section 3 thereof as well as considering the report given
by the Medical Board.
13. Accordingly, this Court permits the termination of the pregnancy of the
victim 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 also 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 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 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.
14. 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.
15. Since the affidavit has been submitted by the mother of the victim to the
effect that they will not resile from the statements which have been recorded
before the trial Court and will fully support the case of the prosecution, the
same is taken on record and it is expected that they will not take a somersault
from the statement on affidavit made before this Court.
16. With the aforesaid observations, this appeal is allowed and disposed off.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
VV
