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SUPREME COURT OF INDIA
B.V. NAGARATHNA, UJJAL BHUYAN, JJ.
XYZ - APPELLANT(S)
VERSUS
THE STATE OF GUJARAT & ORS. – RESPONDENT(S)
CRIMINAL APPEAL NO. /2023 (@ SLP (Crl.) Dy. No. 33790/2023)
Decided On : 21-08-2023
(A) Constitution of India – Article 21 – Rightly to reproductive autonomy – Article 21 of Constitution recognizes and protects right of a woman to undergo termination of pregnancy if her mental or physical health is at stake – It is woman alone who has right over her body and is ultimate decision-maker on question of whether she wants to undergo an abortion – In context of abortion, right of dignity entails recognising competence and authority of every woman to take reproductive decisions, including decision to terminate pregnancy – Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by State – Right of every woman to make reproductive choices without undue interference from State is central to idea of human dignity – Deprivation of access to reproductive healthcare or emotional and physical well-being also injures dignity of women – Appellant permitted to terminate her pregnancy. (Paras 17, 18 and 20)
(B) Constitution of India – Article 226 – Writ Petition – Whole object of preferring Writ Petition under Article 226 of Constitution of India is to engage with extraordinary discretionary jurisdiction of High Court in exercise of its constitutional power – Such a power is vested with Constitutional Courts and discretion has to be exercised judiciously and having regard to facts of the case and by taking into consideration relevant facts while leaving out irrelevant considerations and not vice versa. (Para 19)
Facts of the case:
“To give birth to an unwanted child or not” is the question posed by appellant in this appeal, being unsuccessful before Gujarat High Court.
Findings of Court:
Subsequently to medical procedure to be carried out either today or tomorrow, in the event, foetus is found to be alive, hospital shall give all necessary medical assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives. Further, in case foetus survives, then State shall take steps for ensuring that the child could be adopted in accordance with law.
In the event tissues are drawn for the purpose of DNA test the same shall be handed over to investigating agency by concerned hospital.
Result : Appeal allowed.
ORDER
Leave granted.
2. Learned Senior Counsel Mr. Sanjay Parikh submitted that Mr.
Shashank Singh, learned counsel is filing his ‘No Objection Vakalat’ on behalf of the appellant and the same may be accepted.
3. His submission is accepted. The Vakalatnama filed by Mr. Shashank Singh is taken on record.
4. “To give birth to an unwanted child or not” is the question posed by the appellant in this appeal, being unsuccessful before the Gujarat High Court. The dilemma of the appellant is compounded by the fact that she has filed an FIR, vide FIR No.11199059230324 of 2023 PS Zaghadiya dated 02.08.2023, against the person who is accused under Section 376(2)(n) of the Indian Penal Code for having sexual intercourse on the false pretext of marriage. On realising that she was pregnant and was about 25 weeks, she filed the Writ petition before the High Court of Gujarat, through her mother, under Article 226 of the Constitution of India read with Section 482 of Cr.P.C, 1973 and Section 3 of the Medical Termination of Pregnancy Act, 1971, seeking a direction to the respondent authority to terminate her pregnancy considering the grave injury that could result to her physical and mental health, from continuing with the pregnancy. The High Court issued a direction to the Medical Superintendent, Dr. Kiran C. Patel, Medical College & Research Institute, Bharuch, to submit a report regarding the health of the appellant as well as the status of her pregnancy.
5. On receipt of the said report on 10.08.2023, the same was taken on record on 11.08.2023. However, the High Court adjourned the matter, without assigning any reason at all, to 23.08.2023 but on 17.08.2023, the High Court rejected the petition. Being aggrieved, the appellant has approached this Court.
6. Pursuant to a sitting of this Bench on Saturday, 19.08.2023, the following order was passed:-
“Learned counsel for the petitioner further submitted that, as on today, the petitioner is pregnant for 27 weeks and two days and, shortly, would be approaching 28th week of pregnancy. Since valuable time has been already lost during the pendency of the matter before the High Court, a fresh report may be sought from the Medical Board at Bharuch.
In the circumstances, we direct the petitioner herein to appear before the KMCRI Hospital, Bharuch today for being examined once again and the latest Medical Report shall be submitted to this Court by tomorrow evening i.e. 20.08.2023 by 6.00 P.M. by electronic mode. The same shall be put up before this Court by Monday i.e. 21.08.2023 along with a copy of the impugned order, if available.
List the matter on 21.08.2023.”
7. We have heard learned Senior Counsel, Mr. Sanjay Parikh for the appellant and learned Solicitor General assisted by learned Standing Counsel for the State of Gujarat and perused the material on record.
8. In response of the directions in the aforesaid order, a copy of the impugned order of the High Court dated 17.08.2023 has been made available by the Registry of this Court. On perusal of the same, we find that the learned Single Judge of the High Court has recorded the submission on behalf of the appellant and has extracted a portion of the medical report submitted by the Medical Superintendent Dr. Kiran C. Patel, Medical College & Research Institute, Bharuch and has rejected the petition while passing the following order:
“4. Looking to the medical report and the age of fetus is almost 27 weeks as on today i.e. 17.08.2023 and considering the statements made by the learned advocate for the petitioner-victim and averments made in the application, present petition stands rejected and the medical termination of pregnancy, as prayed for by the petitioner in the present petition, is rejected.
5. Accordingly, present application stands rejected. Rule is made absolute to the aforesaid extent. Direct service is permitted.”
9. It is significant to note that the High Court has not taken into consideration the relevant facts that the appellant was pregnant f
Rightly to reproductive autonomy – It is woman alone who has right over her body and is ultimate decision-maker on question of whether she wants to undergo an abortion.
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