Rajasthan High Court

A vs State Of Rajasthan on 28 July, 2021

Bench: Ashok Kumar Gaur

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 6716/2021

A
                                                                         ----Petitioner
                                     Versus
1.      State    Of      Rajasthan,           Through             Home      Secretary,
        Government Secretariat, Jaipur.
2.      Principal Secretary, Department Of Medical And Health,
        Government Secretariat, Jaipur.
3.      Chief Medical And Health Officer, Karauli, Rajasthan.
4.      Superintendent Of Police, District Karauli, Rajasthan.
5.      Station House Officer, Police Station Mahila Thana, District
        Karauli, Rajasthan.
                                                                   ----Respondents

For Petitioner(s) : Mr. Mukesh Sharma, Adv. For Respondent(s) : Mr. Bharat Saini, Addl. Govt. Counsel

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

28/07/2021

This case has been filed by the petitioner-victim for seeking a

direction to grant her permission to abort foetus of around 19

weeks 1 day at the time of filing of the writ petition.

This Court vide order dated 15.07.2021 had directed the

Chief Medical & Health Officer, Karauli to constitute a team of

three Doctors to conduct medical examination of the victim and

submit his report to this Court through learned counsel for the

respondents-Mr. Bharat Saini, Addl. G.C.

(2 of 6) [CW-6716/2021]

Mr. Bharat Saini, Addl. G.C. has filed reply to the writ petition

and also annexed the report of Medical Board constituting of three

members-Doctors.

This Court on perusal of the report of Medical Board dated

17.07.2021 finds that the abortion of the victim is not possible

because age of the foetus is approximately 26 weeks and

abortion/termination of pregnancy is risky for victim's life.

Learned counsel for the petitioner submitted that the

petitioner being victim of rape needs direction from this Court for

termination of pregnancy and this Court in catena of cases has

given such direction.

Learned Additional Government Counsel Mr.Bharat Saini

appearing on behalf of the respondents, submits that the medical

report dated 17.07.2021 has clearly opined that victim is carrying

a foetus of about 26 weeks and as on today, she carries about 28

weeks pregnancy.

Learned counsel submitted that in view of the opinion of the

experts, this Court may not consider the prayer sought by the

petitioner to permit her termination of pregnancy.

This Court finds that the alleged incident is of course

unfortunate and the victim is of course found to be carrying foetus

of about 28 weeks now.

This Court further notices that these kind of incidents have a

permanent scar on the life of a victim to deliver a child, which was

never intended by the victim.

This Court further finds that the incidents relating to

committing rape are not only causing severe bodily injury but they

also have mental & emotional sufferings for all times to come for

such victims.

(3 of 6) [CW-6716/2021]

This Court, further, has to consider the ground reality with

health and mental condition of the victim as well.

This Court in order to verify the correct claim of the victim to

get the termination of pregnancy, thought it proper to have

opinion of the experts by a team of Doctors and has to rely on the

reports which are given by the medical experts.

This Court in the present case, considering the report of the

Medical Board finds that the petitioner is carrying a foetus of

almost 28 weeks now and as per the report of the experts, it

would be dangerous for the petitioner to get her pregnancy

terminated.

This Court finds that life of the victim is equally important

and if such procedure is permitted by this Court, there can be

eminent danger to the life of the victim herself. This kind of

situation cannot be encouraged by the Court, where victim can

lose her life.

Learned counsel for the respondents submitted that this

Court has considered the similar issue in S.B.Civil Writ Petition

No.9471/2020 (Victim Vs. State of Rajasthan & Ors.) dated

15.09.2020, whereby the Court has denied the permission of

termination of pregnancy to the victim who was carrying the

foetus of about 28 weeks.

The operative portion of the order passed by this Court in the

case of Victim Vs. State of Rajasthan & Ors. (supra) is quoted

hereunder:-

"This Court finds that the initial medical report, given by five members of the team of Medical College, Kota, had opined that it would not be in the interest of the mother as well as child, if termination of pregnancy is undertaken.

(4 of 6) [CW-6716/2021]

This Court, in order to satisfy that right of the victim, can still be protected to go for termination of pregnancy, still sought opinion from a new Medical Board, consisting of five Doctors.

The report of the Medical Board, SMS Hospital, Jaipur also makes it clear that termination of pregnancy will not be in favour of life of the foetus and will have adverse effects on health of the mother.

This Court, considering the said aspect about adverse effects on both, mother and foetus, has little choice. The termination of pregnancy, at this stage, may result into serious health issues for the victim as well as for the foetus.

This Court in normal course would have passed an order of termination of pregnancy, had the Authorities and medical experts would have opined that termination of pregnancy, will have no effect on the health of the victim.

The Hon'ble Supreme Court in the case of Murugan Nayakkar (supra) has taken into account the opinion of the Board permitting termination of pregnancy and the Board had opined that the baby born will be preterm and will have its own complications.

The Hon'ble Supreme Court in the case of Ms. Chanchala Kumari (supra) again considered the report of the medical board, wherein it was certified that the victim was pregnant with 24 weeks and termination of pregnancy was feasible.

The Hon'ble Supreme Court in the case of Tapasya Umesh Pisal (supra) again considered the report of the medical board and found that if the baby delivered alive, would undergo several surgeries after birth which is associated with a high morbidity and mortality. The Hon'ble Supreme Court considering the substantial risk, if the child was born, permitted the termination of pregnancy as the foetus is allowed to born for limited life span.

The Hon'ble Supreme Court in the case of Meera Santosh Pal & Ors. (supra) again found that the foetus was abnormal and the risk of fetal mortality was high. The Hon'ble Supreme Court

(5 of 6) [CW-6716/2021]

considering the report of the medical board that the foetus would not be able to survive outside the uterus, permitted termination of pregnancy.

This Court in the case of Nisha Vaishnav (supra) has considered the medical report and general condition of the victim was found normal and report had specifically recommended that the termination of pregnancy could be carried out, as per the medical fitness of the victim.

This Court has gone through the various judgments passed by the Apex Court as well as the order passed by the Division Bench of this Court in the case of State of Rajasthan Vs. S. (Supra) and in all the cases, the Courts have observed that the victim is in a fit medical stage/condition and she can undergo the procedure of termination of pregnancy without any complication.

The underlining factor in all these cases is the medical opinion, which is in favour of a victim and then the right to seek termination of pregnancy is available to the victim.

This Court finds that termination of pregnancy of the victim cannot be given in the facts of the present case. The victim herself is at great risk if the permission sought is granted. The duty of the Court is to save life of a living person.

This Court, considering the directions, which have been given by the Division Bench in the case of State of Rajasthan Vs. S. (supra), deems proper to dispose of this petition by giving directions for welfare of the child.

This Court directs that the child, who may be born by the victim, shall be provided all remedial measure by the State Government, as per the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "the Juvenile Justice Act of 2015"). The District Collector, Kota is directed to ensure that the child is brought up with strict adherence to the salutory process of the Juvenile Justice Act, 2015. If the child is not adopted upon attaining the suitable age, he/she shall be got admission into good school, as per the Right of Children of Free and Compulsory Education Act, 2009.

(6 of 6) [CW-6716/2021]

This Court also directs that all concerned Authorities will ensure secrecy of the pregnancy and anonymity of the petitioner and child, to be born, is maintained.

Before parting with the judgment, this Court appreciates the assistance rendered by learned counsel for the petitioner-victim Mr. Arun Singh Shekhawat and Mr. Bharat Saini, AGC.

The writ petition stands disposed of with the aforesaid directions."

This Court, however, without granting permission to the

victim to have termination of her pregnancy, deems it proper to

give direction that the child, who may be born by the victim, shall

be provided all remedial measure by the State Government, as

per the Juvenile Justice (Care and Protection of Children)

Act, 2015 (for short "the Juvenile Justice Act of 2015"). The

District Collector, Karauli is directed to ensure that the child is

brought up with strict adherence to the salutory process of the

Juvenile Justice Act, 2015. If the child is not adopted upon

attaining the suitable age, he/she shall be got admission into good

school, as per the Right of Children of Free and Compulsory