Rajasthan High Court - Jodhpur

Xxx vs State Of Rajasthan (2025:Rj-Jd:1632) on 9 January, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:1632]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                    S.B. Civil Writ Petition No. 288/2025
X & Ors.
                                                                      ----Petitioners
                                       Versus
1.       State of Rajasthan through Principal Secretary, Medical
         and Health, Secretariat, Jaipur (Raj.).
2.       Station House Officer, Police Station Mata Ka Than,
         Jodhpur (Raj.).
3.       Investigation Officer,           Police      Station       Mata   Ka   Than,
         Jodhpur (Raj.).
4.       Superintendent, District Hospital, Paota, Jodhpur (Raj.).
5.       Superintendent, Umaid Hospital, Siwanchi Gate, Jodpur
         (Raj.).
6.       Dr. S.N. Medical College, through its Principal, Residency
         Road, Sector - D, Shashtri Nagar, Jodhpur (Raj.).
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Rishabh Tayal
                                   Mr. Vaibhav Bang
                                   Mr. Vivek Sharma
                                   Mr. Jitendra Choudhary
                                   Mr. Muskan Jangid
For Respondent(s)            :     Mr. N.S. Rajpurohit, AAG, assisted by
                                   M.S. Anita Rajpurohit


               HON'BLE DR. JUSTICE NUPUR BHATI

Order 09/01/2025

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

of India has been filed by the petitioners seeking medical

termination of pregnancy of petitioner no.3(a minor) seeking

following relief(s):

"It is, therefore, prayed that by an appropriate writ, order or direction:

1. The respondents may be directed to constitute a Medical Board constituting a Gynecologist; a Pediatrician;

a Radiologist or Sonologist; a Psychiatrist; and any other expert that may be deemed necessary for conducting medical examination of the petitioner No.3.

2. The respondents may be further directed that in case the Medical Board is of the opinion that termination of pregnancy of the minor victim can be undertaken

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without risk to her life, the respondents shall ensure that termination of pregnancy of the minor victim is undertaken by competent doctors in accordance with the provisions of the Medical Termination of Pregnancy Act and rules framed thereunder.

3. In alternate, if the Medical Board is of the opinion that termination of pregnancy of the minor victim cannot be undertaken without risk to her life, the respondents may be directed to provide the petitioner all necessary care, nutritious food and medical attendance to the petitioner before and after delivery.

4. The respondents may be directed to maintain the privacy of the petitioner at all stages and her identity should not be disclosed in the course of hospitalization, treatment and admission.

5. The respondents may be directed to pay suitable amount of compensation to the petitioner, who is a victim in terms of the provisions contained under the Rajasthan Victim Compensation Scheme, 2011.

6. That the respondents may be directed that if the petitioner desire to give away the child for adoption to any willing parents, the respondents shall take care of all the needs and facilities of the child along with all necessary documentation and all formalities.

7. Any other appropriate relief which this Hon'ble Court High Court deems may be granted in favour of the petitioners."

2. It is averred by the counsel for petitioners that Petitioner

no.3 is a rape victim and she does not wish to continue the

pregnancy. He also submits that the petitioner no.2(Mother of the

petitioner no.3) also does not want her daughter to continue the

pregnancy.

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

07.01.2025 gave following directions:

"...3. Having regard to the facts and circumstances of this case, the respondent No.5-Superintendent, Umaid Hospital, Siawanchi Gate, Jodhpur (Raj.), is directed to instruct an expert Sonologist at the said hospital to conduct sonography of 'X' on or before 5 PM today itself. 'X' along with her mother/brother, is directed to remain present before the concerned doctor for undergoing the sonography. The respondent No.5- Superintendent, Umaid Hospital, Siawanchi Gate, Jodhpur (Raj.), is directed to constitute a Medical Board of three senior doctors, who after examining 'X' physically and while also taking into consideration the sonography report, shall opine as to whether she is medically fit to endure the delivery. As the present writ petition has been filed praying for termination of pregnancy, the

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Medical Board is also directed to opine whether the petitioner is medically fit for termination of pregnancy.

4. 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 08.01.2025. 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 07.01.2025 and has rendered its opinion in the

following terms:

"This is to inform you that in compliance of Your order No. 11 dated 07/01/2025, the medical board constituted by you has examined Miss "X" Age 17 Yrs. Medical Examination & investigations are done by medical board members. According to Ultrasound Obstetrics Miss "X" is having pregnancy of 31 weeks 6 days. Blood investigation report shows her haemoglobin is 09- gm/dl & will need anaemia correction. As per USG Single live foetus 31 weeks 6 days, foetus is viable & foetal weight is 1865 gm. If pregnancy is terminated, baby may need prolonged NICU care & face all complications of Prematurity. Termination of Pregnancy at this gestational age may cause high risk to the patient. Hence Medical Termination of Pregnancy cannot be done at this gestational age."

5. The medical as well as sonography reports dated 07.01.2025

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

be summarised in the following terms:

a. The petitioner no.3 is pregnant with single live viable foetus with gestational age of 31 weeks 6 days and the foetal weight is 1865 gm.

b. If pregnancy is terminated foetus may need prolongned NICU care and may also face all complications of prematurity. c. Medical termination of pregnancy cannot be done at this gestational age as the same may cause high risk to the petitioner no.3.

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:

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"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--

(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

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(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. (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 no.3 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,

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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.

(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

either allow or deny termination of pregnancy beyond 24 weeks of

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

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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 no.3 is pregnant with single live viable foetus of

gestational age of 31 weeks 6 days. The report of the Medical

Board does not indicate any foetal abnormality. The Medical Board

has also opined that if pregnancy is terminated at this stage, the

foetus may need prolongned NICU care and may also face all

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complications of prematurity. Further, the Medical Board has in

clear terms opined that Medical termination of pregnancy cannot

be done at this gestational age as the same may cause high risk

to the petitioner no.3. Thus, upon perusal of the report submitted

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

no.3 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 no.3

all necessary care, nutritious food and medical attendance

before and after delivery.

(ii) The Superintendent of Umaid Hospital, Siawanchi Gate,

Jodhpur (Raj.) is directed to ensure that all medical facilities

are made available to the petitioner no.3 before and after

delivery, 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 no.3 shall be maintained at

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

of hospitalization, treatment and admission.

(iv) If the petitioner no.3 or her parents so wish, the child, on

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

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Jodhpur and the petitioner no.3/parents of the petitioner no.3

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, Jodhpur 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), Jodhpur are

directed to pay suitable amount of compensation to the

petitioner no.3 who is a victim in terms of the provisions

contained under the Rajasthan Victim Compensation Scheme,

2011 within a period of three months from the date of receipt

of certified copy of this order and the amount of compensation

be kept in Fixed Deposit in the name of the victim for a period

of two years.

9. Copy of this order be provided to the counsel for the

petitioners as well as the counsel for the State respondents for

necessary compliance. Let the copy of this order be also sent to

Member Secretary, RSLSA and Secretary, DLSA for necessary

compliance.

(DR. NUPUR BHATI),J 296-/Devesh/-