Rajasthan High Court - Jodhpur

Xx vs The State Of Rajasthan ... on 7 January, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       AT JODHPUR
                    S.B. Civil Writ Petition No. 295/2025

X
                                                                      ----Petitioner
                                       Versus
1.       The State of Rajasthan through Secretary, Medical,
         Health      and      Family     Welfare        Department,       Govt.   of
         Rajasthan, Jaipur.
2.       Chief Medical and Health Officer, Hanumangarh, District
         Hanumangarh.
3.       The Superintendent, Mahatam Gandhi Memorial Govt.
         Hospital, Hanumangarh
4.       The Superintendent, Govt. Girls / Childrens Home, Child
         Empowerment Department, Hanumangarh.
5.       Superintendent Of Police, Hanumangarh.
6.       Sho,        Police        Station          Hanumangarh           Junction,
         Hanumangarh.
                                                                    ----Respondents


For Petitioner(s)             :    Mr. Manish Kumar Vyas
For Respondent(s)             :    Ms. Anita Rajpurohit, associate to
                                   Mr. N.S. Rajpurohit, AAG



                HON'BLE DR. JUSTICE NUPUR BHATI

Order

07/01/2025

1. The instant writ petition under Article 226 of the Constitution

of India has been filed by the petitioner (a minor) through her

mother seeking medical termination of pregnancy, seeking

following relief(s):

"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and;

1. The direction may kindly be passed to the respondents to terminate the prenancy of the victim Miss "S" D/o Sanjay Kumar in relation/continuation of the FIR No.746/2024 P.S. Hanumangarh Junction, Hanumangarh.

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2. The respondents may kindly be directed to keep the DNA of the fetus preserved in relation to the charges of rape upon the accused.

3. That any other appropriate relief, which this Hon'ble Court High Court deems just and proper may kindly be granted in favour of the petitioners."

2. It is averred by the counsel for petitioner that Petitioner is a

rape victim and she does not wish to continue the pregnancy. He

also submits that the mother of the petitioner also does not want

her daughter to continue the pregnancy.

3. On the request of the petitioner, this court vide order dated

06.01.2025 gave following directions:

"...5. The respondent No. 3-The Superintendent, Mahatma Gandhi Memorial Government Hospital, Hanumangarh, is directed to depute an expert Sonologist at the said hospital to conduct sonography of the petitioner today itself. The petitioner along with her mother, is directed to remain present before the concerned doctor for conducting sonography. The concerned doctor shall conduct sonography to ascertain the gestation age of the foetus. The respondent No.3-The Superintendent, Mahatma Gandhi Memorial Government Hospital, Hanumangarh shall constitute a Medical Board of senior doctors and opine as to whether the medical termination of the pregnancy shall be safe for the minor or not.

6. It is further directed that the sonography report as well as the opinion of the Medical Board be placed before this Court tomorrow i.e. on 07.01.2025. Mr. N.S. Rajpurohit, learned AAG, is directed to ensure compliance of this order..."

4. Upon the directions of this Court, the Medical Board was

constituted on 06.01.2025 and has rendered its opinion in the

following terms:

"Opinion:- The victim is pregnant with single live viable foetus of gestational age of 30 weeks & weight = 1.5Kg. The foetus had attained the age of viability(28 weeks) and is capable of independent existence. Termination of pregnancy will not be in favour of life of foetus and may also have adverse effect on the health of the mother. Victim is stable at present but she is suffering from Anemia(Hb 5.5), yet premature delivery of this foetus at this stage of pregnancy(30 weeks) by premature induction of labour is not medically advisable as it may have

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adverse effects on the life of & health of both mother & foetus. She should be admitted for Anemia correction."

5. The medical as well as sonography reports dated 06.01.2025

produced are taken on record. The report of the medical board can

be summarised in the following terms:

a. The petitioner is pregnant with single live viable foetus with gestational age of 30 weeks.

b. Termination of pregnancy will not be in favour of life of foetus.

c. The petitioner is stable at present but she is suffering from Anemia (Hb 5.5) and should be admitted for Anemia correction d. Premature delivery of this foetus at this stage of pregnancy (30 weeks) by premature induction of labour is not medically advisable as it may have adverse effects on the life and health of both the petitioner and foetus.

6. At this juncture it would be appropriate to take into

consideration the relevant provisions of the Medical Termination of

Pregnancy Act, 1971 ('MTP Act') and the Medical Termination of

Pregnancy Rules, 2003. Section 3 of the MTP Act is being

reproduced 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 twenty weeks, if such medical practitioner is, or

(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 the opinion, formed in good faith, that--

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(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 any serious physical or mental abnormality.

Explanation 1.--For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.--For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. (2D) The Medical Board shall consist of the following, namely:--

(a) a Gynaecologist;

(b) a Paediatrician;

(c) a Radiologist or Sonologist; and

(d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.] (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 of the pregnant woman's actual or reasonably foreseeable environment.

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(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 1 [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."

6.1. It is clear from the perusal of Section 3 of the MTP Act that

Section 3(2) provides for two categories of cases in which a

pregnancy can be terminated by a registered medical practitioner

subject to the conditions mentioned therein. These categories are

based on the length of the pregnancy i.e., a. upto 20 weeks; b.

more than 20 weeks but upto 24 weeks. However, the pregnancy

in the present case has already crossed the period of 24 weeks,

thus, the case of petitioner does not fall under Section 3(2) (A)

and (B). Section 3 (2B) provides that in a case where termination

is necessitated by the diagnosis of any substantial foetal

abnormalities diagnosed by a medical board, the provisions of

Section 3(2) relating to the length of the pregnancy shall not

apply. Thus, as per Section 3(2B) even if the length of pregnancy

is of more than 24 weeks, termination of pregnancy may be done

if the Medical Board has diagnosed any substantial foetal

abnormalities which necessitates such termination of pregnancy.

6.2. Section 5 of the MTP Act is being reproduced as under:

"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

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termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.

(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

(4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

Explanation 1.--For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.

Explanation 2.--For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply."

A bare perusal of Section 5(1) makes it evident that the provisions

of Section 3(2) as relate to the length of the pregnancy and the

opinion 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, in good faith, forms an opinion

that the termination of such pregnancy is immediately necessary

to save the life of the pregnant woman.

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6.3. This Court also takes into consideration Rule 3A of the

Medical Termination of Pregnancy Rules, 2003('MTP Rules') which

is being reproduced as under:

"3A. Powers and functions of Medical Board.-- For the purposes of section 3,--

(a) the powers of the Medical Board shall be the following, namely:-

(i) to allow or deny termination of pregnancy beyond twenty-four weeks of gestation period under sub-section (2B) of the said section only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped;

(ii) co-opt other specialists in the Board and ask for any additional investigations if required, for deciding on the termination of pregnancy,

(b) the functions of the Medical Board shall be the following, namely:

(i) to examine the woman and her reports, who may approach for medical termination of pregnancy under sub-

section (2B) of section 3;

(ii) provide the opinion of Medical Board in Form D with regard to the termination of pregnancy or rejection of request for termination within three days of receiving the request for medical termination of pregnancy under sub- section (2B) of section 3;

(iii) to ensure that the termination procedure, when advised by the Medical Board, is carried out with all safety precautions along with appropriate counselling within five days of the receipt of the request for medical termination of pregnancy under sub-section (2B) of section 3."

Thus, Rule 3A of the MTP Rules provides for the power and

functions of Medical Board for the purpose of Section 3 of the MTP

Act. Rule 3A(a)(i) provides for the power of the Medical Board to

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either allow or deny termination of pregnancy beyond 24 weeks of

gestation period under Section 3(2B) of the Act, however, such

power can be exercised after due consideration and ensuring that-

(I) the procedure would be safe for the woman at such gestation

age, and (II) when foetal malformation has substantial risk of it

being incompatible with life, or (III) if the child is born it may

suffer such physical or mental abnormalities to be seriously

handicapped.

6.4. Thus, the position of law which emerges from the conjoint

reading of Sections 2, 3, 5 of the MTP Act and Rule 3A of the MTP

Rules is that the termination of pregnancy can be allowed in cases

where the gestation period/pregnancy has crossed the mark of 24

weeks, if:

(i) There is diagnosis of any substantial foetal abnormalities by a

Medical Board or that the foetal malformation has substantial risk

of it being incompatible with life and the procedure would be safe

for the woman at that gestation age, or

(ii) The registered medical practitioner, in good faith, forms an

opinion that termination of pregnancy is immediately necessary to

save the life of the pregnant woman or of grave injury to the

mental or physical health.

7. In the present case, the Medical Board has opined that the

petitioner is pregnant with single live viable foetus of gestational

age of 30 weeks. The report of the Medical Board does not

indicate any foetal abnormality. The Medical Board has also opined

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that the petitioner is stable at present but she is suffering from

Anemia(Hb 5.5). Further, the Medical Board has in clear terms

opined that premature delivery of the foetus at this stage of

pregnancy by premature induction of labour is not medically

advisable as it may have adverse affects on the life and health of

both the petitioner and foetus. Thus, upon perusal of the report

submitted by the Medical Board, it is clear that the case of the

petitioner does not fall under the provisions of law which have

been enumerated in the preceding paragraph of this judgment so

as to allow termination of pregnancy which is beyond 24 weeks.

8. Therefore, in view of the above, this Court is not inclined to

give directions for termination of the pregnancy. Accordingly, the

writ petition is disposed off with the following directions:

(i) The respondents are directed to provide the petitioner all

necessary care, nutritious food and medical attendance before

and after delivery.

(ii) The Superintendent of PBM Hospital, Ambedkar Circle,

Bikaner is directed to ensure that all medical facilities are

made available to the petitioner before and after delivery of

the petitioner without payment of any fee, charges or

expenses of any nature and to ensure that the delivery takes

place in a safe environment.

(iii) The privacy of the petitioner shall be maintained at all

stages and her identity shall not be disclosed in the course of

hospitalization, treatment and admission.

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(iv) If the petitioner or her parents so wish, the child, on

birth, may be handed over to the Child Welfare Committee of

Bikaner and the petitioner/parents of the petitioner shall fulfill

all necessary documentation and all formalities as may be so

required under the law for handing over custody of the child

to the Child Welfare Committee.

(v) The Child Welfare Committee, Bikaner shall take care of all

the needs and facilities of the child.

(vi) The Rajasthan State Legal Services Authority (RSLSA) as

well as District Legal services Authority (DLSA), Hanumangarh

are directed to pay suitable amount of compensation to the