Rajasthan High Court - Jodhpur

Tejmal Bagariya vs State Of Rajasthan (2025:Rj-Jd:15718) on 25 March, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:15718]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 6371/2025

XX & Anr


                                                                       ----Petitioners
                                       Versus
1.            State Of Rajasthan, Through Principal Secretary,
              Medical And Health Secretariat, Jaipur (Raj).
2.            The Station House, Officer, Police Station Begu, Distt
              Chittor, Rajasthan.
3.            The Investigation Officer, Police Station Begu, Distt
              Chittor, Rajasthan.
4.            The Superintentdent, Public Health Center, District-
              Chittor, Rajasthan.
                                                                     ----Respondents


For Petitioner(s)              :   Mr. RP Singariya
For Respondent(s)              :   Ms. Ankita Rajpurohit for Mr. NS
                                   Rajpurohit, AAG



               HON'BLE DR. JUSTICE NUPUR BHATI

Order

25/03/2025

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 their minor daughter seeking

following relief(s):-

"It is, therefore, prayed that by this Hon'ble Court may kindly be pleased to:

1. Issue appropriate writ, order or direction to the respondent No.5 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 petitioners' daughter.

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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 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. The respondents may be directed to maintain the privacy of the petitioners' daughter at all stages and her identity should not be disclosed in the course of hosptialization, treatment and admission.

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

5. Pass any other appropriate order or direction that the Hon'ble Court deems just and proper in the facts and circumstances of the present case.."

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

daughter is a rape victim and she does not wish to continue the

pregnancy. He also submits that the petitioners herein i.e. father

and mother of the victim, also do not want their daughter to

continue the pregnancy.

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

20.03.2025 gave following directions:

"...3. In view of the above, this Court deems it appropriate to direct the Principal of the RNT Medical College, Udaipur to constitute a medical board of three specialized doctors, who shall examine the petitioner's daughter so as to see whether the termination of the pregnancy would be feasible taking into consideration the health of the petitioner's daughter and conduct the sonography of the minor for the purpose of ascertaining current gestation age of the foetus. The mother of the minor is directed to take her daughter to the RNT Medical College, Udaipur, for sonography tomorrow itself.

4. It is further directed that the sonography report as well as the opinion of the Medical Board be placed before this Court on the next date of hearing. Learned AAG is directed to ensure compliance of this order....

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

constituted on 21.03.2025 and the Medical Board has rendered its

opinion, which reads as under:-

"Yes, Denied because pregnancy is of 29 weeks 2 days on dated 21/3/2025 with 1315 gm of approx. weight."

5. The medical as well as sonography reports dated 21.03.2025

produced, are taken on record.

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--

(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.

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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. (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 petitioners' daughter does not fall under Section

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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 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.

[2025:RJ-JD:15718] (6 of 10) [CW-6371/2025]

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) 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, in good faith, forms an

opinion that the termination of such pregnancy is immediately

necessary to save the life of the pregnant woman.

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 (2 B) 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;

[2025:RJ-JD:15718] (7 of 10) [CW-6371/2025]

(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

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

[2025:RJ-JD:15718] (8 of 10) [CW-6371/2025]

(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

petitioners' daughter is pregnant with a single live intra uterine

pregnancy of approx 29 weeks 2 days. The report of the Medical

Board does not indicate any foetal abnormality. Further, the

Medical Board has in clear terms opined that Medical termination

of pregnancy cannot be done at this gestational age. Thus, upon

perusal of the report submitted by the Medical Board, it is clear

that the case of the petitioners' daughter 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 petitioners'

daughter all necessary care, nutritious food and medical

attendance before and after delivery.

(ii) The Superintendent of Maharana Bhupal Govt. Hospital,

Udaipur (Raj.) (R.N.T. Medical College, Udaipur) is directed to

ensure that all medical facilities are made available to the

petitioners' daughter before and after delivery, without

[2025:RJ-JD:15718] (9 of 10) [CW-6371/2025]

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 petitioners' daughter shall be

maintained at all stages and her identity shall not be disclosed

in the course of hospitalization, treatment and admission.

(iv) If the petitioners/parents so wish, the child, on birth, may

be handed over to the Child Welfare Committee of Udaipur

and the petitioners' daughter/petitioners herein, 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, Udaipur 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), Udaipur are

directed to pay suitable amount of compensation to the

petitioners' daughter 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

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Member Secretary, RSLSA and Secretary, DLSA for necessary

compliance.

(DR. NUPUR BHATI),J SURABHII/270-