2024:CGHC:50597
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 6493 of 2024
A B C Nil
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through Its Secretary, Department Of Public
Health And Family Welfare, Mahanadi Bhawan, Atal Nagar, District- Raipur,
Chhattisgarh
2 - Chairman District Medical Board, Bilaspur District Hospital, District-
Bilaspur, Chhattisgarh
3 - Dean Chhattisgarh Institute Of Medical Sciences (C I M S), Bilaspur,
Chhattisgarh
4 - Chief Medical And Health Officer District Hospital - District- Bilaspur,
Chhattisgarh
5 - Station House Officer Police Station- Tarbahar, Bilaspur, District-
Bilaspur, C.G.
---- Respondent(s)
(Cause title taken from Case Information System)
----------------------------------------------------------------------------------------------------
For Petitioner : Shri Ashish Tiwari, Advocate
For Respondent/State : Mr. Ajit Singh, Govt. Advocate
----------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Ravindra Kumar Agrawal
VEDPRAKASH
DEWANGAN
Order on Board
Digitally signed by
VEDPRAKASH
DEWANGAN
Date: 2024.12.26
17:26:41 +0530
2
26/12/2024
1. On being urgency shown in the petition, the matter has been taken up in
the winter holidays on 24.12.2024, and detailed medical report of the
petitioner from the Medical Board, Bilaspur, constituted for the Medical
Termination of Pregnancy (MTP) under the Medical Termination of
Pregnancy Act, 1971 (for short, “the Act of 1971”) was called. After her
examination, the Medical Board has submitted its report today itself,
which is being taken on record, and then, this Court proceeds to decide
the matter.
2. The petitioner, who is a victim of rape, and sexual violence, has
preferred this writ petition on 23.12.2024 for termination of pregnancy,
which, according to her, is a result of commission of offence of rape
upon her, with the following prayer:
“This Hon’ble Court may kindly be pleased;
(a) To allow the Petitioner to terminate her ongoing
pregnancy through registered medical practitioners at
any approved private ог government center or
Hospital before the completion of 24 weeks of
pregnancy, and/or;
(b) To direct Respondent No. 4 to constitute a Medical
Board of five well reputed doctors including the
doctors from the Department of Obst. & Gynecology,
Department of Neonatology and Department of
Psychiatry to examine the petitioner (victim)
physically and as well as psychologically to submit a
feasibility report in terms of the Medical Termination
of Pregnancy Act, 1971 read with the Medical
Termination of Pregnancy Rules 2003 along with
determining the following:
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(i) Whether carrying the pregnancy to the full
term would impact upon the physical and
mental well being of the Petitioner?
(ii) Whether termination of the pregnancy can be
carried out at this stage without any threat to
the life of the Petitioner?
(iii) Whether the age of the Petitioner would
impact on the health condition of the Petitioner
in case of medical termination of pregnancy?
(iv) Whether the petitioner and her parents are
consenting the said procedure as explained by
the Doctors with regards to medical termination
of pregnancy?
(b) To facilitate the pre-operational and post
operational procedure, medical expenses and medical
care of the Petitioner.
(d) Pass any other order as this Hon'ble Court deems
fit in the interest of justice of good conscience.”
3. The petition was came up for hearing before this Court on 24.12.2024.
On that day, this Court called a detailed report from the Medical Board
constituted under the Act of 1971, and under the Notification dated 7th
June, 2024, issued by the State Government, which consists of one
Gynecologist, one Pediatrician, one Radiologist/Sonologist, and any
other member, as required in the case, available in the hospital, to
examine the petitioner. Examination report of the patient/petitioner with
regard to her physical and mental state; Stage of pregnancy; Overall
condition of foetus; How far the termination of pregnancy will be
detrimental; How far it be detrimental, if the petitioner is allowed to
complete full term of pregnancy; and Investigation report, and the report
was directed to submit through the Collector, Bilaspur. The Collector,
Bilaspur was also directed to ensure the compliance of order dated
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24.12.2024, and to submit the report of Medical Board on 26.12.2024
before this Court. In compliance of that order, medical report of the
petitioner has been submitted through the State counsel, which is taken
on record.
4. Shri Ashish Tiwari, learned counsel for the petitioner would submit that
the petitioner, who is victim of rape, had lodged the FIR of Crime No.398
of 2024, registered at Police Station, Tarbahar, Bilaspur, on 19.12.2024,
in which the investigation is going on. On being medically examined on
07.12.2024, petitioner is found carrying pregnancy of about 18 weeks,
and 04 days. Petitioner also underwent the Anti-natal Ultra Sound
examination on 07.12.2024, in which her pregnancy was detected as
aforementioned. Later on, the matter was reported to the Police, and
FIR has been registered against the accused. Petitioner has also given
consent in Form GA under the Act of 1971 for termination of her
pregnancy. Medical Board, Bilaspur has also opined in their report
dated 26.12.2024. That the termination of pregnancy of the petitioner is
permissible as per examination report of the petitioner for termination of
pregnancy up to 24 weeks. Petitioner has knocked the door of this court
by filing this writ petition to prevent herself from severe mental agony of
carrying unwanted pregnancy. In support of his submission, learned
counsel for the petitioner relied upon the decision of Hon’ble Supreme
Court in the matter of Suchitra Srivastava and another Vs
Chandigarh, Administration, (2009) 9 SCC 1, and a prayer is made to
direct termination of pregnancy applying “best interest”, to prevent the
petitioner from further mental agony, which a grave injury to her.
Learned counsel has prayed for a direction immediately, in this regard.
5
5. Learned counsel for the State submits that as per the direction of this
Court, 24.12.2024, petitioner was examined on the same day itself, by
the Medical Board, duly constituted under the Act of 1971, and report
dated 24.12.2024 has been placed on record.
6. Heard learned counsel for the parties, and also perused the record with
utmost circumspection.
7. Before proceeding with the medical report of the petitioner, it would be
appropriate to notice the relevant provisions by which pregnancy can be
directed to be terminated under the Act of 1971. Section 3 of the said Act
provides for when pregnancies may be terminated by registered medical
practitioners, and states as under:
“3. When pregnancies may be terminated by
registered medical practitioners— (1) Not withstanding
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
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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.”
8. In this regard, the Hon’ble Supreme Court in Suchita Srivastava (supra)
has laid down the guidelines based on the principle of “best interests”
theory and held that the Court is required to ascertain the course of
action which would serve the best interests of the person in question.
Paragraphs 36 and 37 of the report are relevant and are extracted
herein-below: -
“36. Courts in other common law jurisdictions have
developed two distinct standards while exercising
“parens patriae” jurisdiction for the purpose of
making reproductive decisions on behalf of mentally
retarded persons. These two standards are the “best
interests” test and the “substituted judgment” test.
37. As evident from its literal description, the “best
interests” test requires the Court to ascertain the
course of action which would serve the best interests
of the person in question. In the present setting this
means that the Court must undertake a careful inquiry
of the medical opinion on the feasibility of the
pregnancy as well as social circumstances faced by
the victim. It is important to note that the Court's
decision should be guided by the interests of the
victim alone and not those of the other stakeholders
such as guardians or the society in general. It is
evident that the woman in question will need care and
assistance which will in turn entail some costs.
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However, that cannot be a ground for denying the
exercise of reproductive rights.”
9. The Hon’ble Supreme Court in the matter of X v. Union of India and
others, (2016) 14 SCC 382, has clearly held that termination of
pregnancy after 20 weeks to save life of pregnant woman (an alleged
rape victim) in case of grave danger to physical and mental health of the
said woman, is permissible, and observed as under: -
“13. Having perused the medical report (relevant
extracts whereof have been reproduced herein
above), we are satisfied that a clear finding has been
recorded by the Medical Board, that the risk to the
petitioner of continuation of her pregnancy can
gravely endanger her physical and mental health. The
Medical Board has also expressed an advice that the
patient should not continue with the pregnancy. In
view of the findings recorded in Para 6 of the report,
coupled with the recommendation and advice
tendered by the Medical Board, we are satisfied that it
is permissible to allow the petitioner to terminate her
pregnancy in terms of Section 5 of the Medical
Termination of Pregnancy Act, 1971. In view of the
above, we grant liberty to the petitioner, if she is so
advised, to terminate her pregnancy.”
10. Similar proposition has been laid down by the Hon’ble Supreme Court in
the matter of X and others v. Union of India and others, (2017) 3 SCC
458, and also in the matter of Meera Santosh Pal and others v. Union
of India and others, (2017) 3 SCC 462.
11. Similarly, in the matter of Mrs. A v. Union of India and others, AIR
2017 SC 4037, the Supreme Court has granted permission for
termination of pregnancy of a woman, aged 22 years, in her 25th to 26th
weeks of pregnancy holding that continuation of pregnancy can pose
8
severe mental injury to the petitioner and no additional risk to the
petitioner's life is involved if she is allowed to undergo termination of her
pregnancy. Their Lordships held as under: -
“6. Upon evaluation of the petitioner, the aforesaid
Medical Board has concluded that her current
pregnancy is of 25 to 26 weeks. The condition of the
foetus is not compatible with life. The medical
evidence clearly suggests that there is no point in
allowing the pregnancy to run its full course since the
foetus would not be able to survive outside the uterus
without a skull.
7. Importantly, it is reported that the continuation of
pregnancy can pose severe mental injury to the
petitioner and no additional risk to the petitioner's life
is involved if she is allowed to undergo termination of
her pregnancy.”
12. At this stage, it would be appropriate to notice the medical report
submitted by the Medical Board. In the medical report submitted, the
condition of foetus i.e. gestation age of foetus has been indicated to be
21 weeks and it has been stated as under: -
“1. Examination Report of Patient
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13. In the case of “X v. Union of India & others” (2016) 14 SCC 382 the
request for termination of pregnancy was in a case where the pregnancy
was of more than 20 weeks. The Hon'ble Supreme Court have permitted
termination of pregnancy in matters, where the pregnancy was more
than 20 weeks. A few judgments of the Hon'ble Supreme Court are
reported in 2017 (3) SCC 458 (X and others v. Union of India and
others), 2017 (3) SCC 462 (Meera Santosh Pal and others v. Union
of India and others), AIR 2017 SC 3931 (Tapasya Umesh Pisal v.
Union of India and others) and AIR 2017 SC 4037 (Mrs. A v. Union of
India and others). In all these cases the age of the foetus were more
than 20 weeks and taking into consideration the over all condition of the
victim, the Hon'ble Supreme Court permitted termination of pregnancy.
14. Recently, the Hon’ble Supreme Court, in the matter of “X v. Principal
Secretary, Health and Family Welfare Department, Government of
NCT of Delhi and Another” (2023) 9 SCC 433, in Para 127, has held
that:
“127. The object of Section 3(2)(b) of the MTP Act read
with Rule 3-B is to provide for abortions between
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twenty and twenty-four weeks, rendered unwanted
due to a change in the material circumstances of
women. In view of the object, there is no rationale for
excluding unmarried or single women (who face a
change in their material circumstances) from the
ambit of Rule 3-B. A narrow interpretation of Rule 3-B,
limited only to married women, would render the
provision discriminatory towards unmarried women
and violative of Article 14 of the Constitution. Article
14 requires the State to refrain from denying to any
person equality before the law or equal protection of
laws. Prohibiting unmarried or single pregnant women
(whose pregnancies are between twenty and twenty-
four weeks) from accessing abortion while allowing
married women to access them during the same
period would fall foul of the spirit guiding Article 14.
The law should not decide the beneficiaries of a
statute based on narrow patriarchal principles about
what constitutes "permissible sex", which create
invidious classifications and excludes groups based
on their personal circumstances. The rights of
reproductive autonomy, dignity, and privacy under
Article 21 give an unmarried woman the right of
choice on whether or not to bear a child, on a similar
footing of a married woman.”
15. The victim of rape must be given that much of liberty and right to decide
whether she should continue with the pregnancy or she should be
permitted to terminate the pregnancy.
16. In the facts of the case in hand, it is quite vivid that the pregnancy of the
petitioner has crossed 21 weeks of gestational age and unless the
judicial order directing termination is available, it may not be possible for
the doctors even to proceed with termination of pregnancy.
17. Taking into consideration the entire facts including the circumstances,
what has been stated by the victim, her gestational age, judicial
11
precedents, taking into consideration her pregnancy and risk involved in
the childbirth, medical condition of the victim/petitioner and as per the
Explanation-1, appended to Sub-section 2 of Section 3 of the Act of
1971, mental agony of a rape victim (petitioner) has to be treated as a
case of grave injury, particularly taking into consideration that it is in the
best interest of the victim alone, which has to be kept in view and
considering the provisions of Sections 3 and 4 of the Act of 1971 and
Explanation-1 that the termination of pregnancy is immediately
necessary to save the life of a pregnant girl; like the petitioner herein, in
the interest of justice, it would be proper to direct that the Medical Board
constituted under the Medical Termination of Pregnancy Act, 1971 and
also under the notification dated 7th June, 2024 issued by the State
Government, shall consider the feasibility of termination of pregnancy at
this gestational age. Accordingly, the writ petition is allowed with
following directions:
(i) The petitioner to remain present at District Hospital,
Bilaspur, Chhattisgarh on 27.12.2024, at about 11:00
AM, so that the termination of pregnancy can be
carried out on 28.12.2024 or on the next day by a team
of doctors consisting of one Senior Gynecologists
available in the hospital, one Radiologist, one
Pediatrician and one Anesthetist after due medical
examination of her. The Chief Medical and Health
Officer, District Bilaspur is directed to make all such
arrangements, if the petitioner and her mother give
consent in the prescribed proforma under the Act of
1971 and the rules made thereunder.
(ii) The termination of pregnancy of the petitioner will
be supervised by the above stated Medical Board,
who shall maintain complete record of the procedure,
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which is to be performed on the petitioner for
termination of her pregnancy.
(iii) The District Collector, Bilaspur shall ensure the
compliance of this order and all necessary expenses
will be borne by the State in this regard. The petitioner
will be allowed all medical and requisite facilities till
she is medically fit even after the termination of
pregnancy and shall provide post termination care.
(iv) The doctor, who has to conduct the termination of
pregnancy of the petitioner are also directed to
preserve the DNA samples of the foetus and thereafter
to forward the same to the Hospital Superintendent,
District Hospital, Bilaspur/CIMS, Bilaspur in safe
custody for the purpose of evidence to be produced in
criminal case and send it to the concerned FSL as and
when required by the police for investigation in the
criminal case.
18. A copy of this order be immediately transmitted to the Collector Bilaspur,
Chief Medical and Health Officer, District Bilaspur and also to the
Government Advocate appearing in the case for necessary compliance.
19. The examination report submitted by the State counsel, so far as the
health condition of the petitioner, shall be made part of this record.
Certified copy today.
Sd/-
(Ravindra Kumar Agrawal)
JUDGE
padma/ved