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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
R.M. BORDE, VIBHA KANKANWADI, JJ.
"X", (Since minor through her mother) - Petitioner
Versus
The Union of India & others - Respondents
Writ Petition No. 14173 of 2017
Decided On : 12-12-2017
Medical Termination of Pregnancy Act - Termination of Pregnancy - Sections 3, 4, 5
Fact of the Case:
The guardian of a deaf-dumb-mentally challenged victim sought a writ of mandamus to direct termination of an unwanted pregnancy resulting from rape against the victim. Medical examination revealed the victim's condition and the risk associated with the pregnancy.
Finding of the Court:
The court considered the victim's inability to make decisions, the risk to her physical and mental health, and the legal provisions under the Medical Termination of Pregnancy Act. It concluded that the victim's guardian should have the right to make the choice and permitted the termination of the pregnancy.
Issues: The key issues involved the victim's capacity to make decisions, the risk to her health, and the legality of terminating the pregnancy under the Medical Termination of Pregnancy Act.
Ratio Decidendi: The court relied on the provisions of the Medical Termination of Pregnancy Act, which allowed termination of pregnancy if it posed a risk to the woman's physical or mental health, and considered the victim's right to privacy, dignity, and bodily integrity.
Final Decision: The court permitted the termination of the unwanted pregnancy and directed the medical procedure to be completed under supervision, while preserving tissue and blood samples for investigation.
Vibha Kankanwadi, J.
1. Rule. Rule made returnable forthwith.
2. Heard finally with the consent of learned counsels for the respective parties.
3. The guardian of an unfortunate deaf-dumb-mentally challenged victim, who has already suffered physical abuse and mental torture has approached this Court seeking direction in the nature of writ of mandamus directing respondent no. 3 to carry out termination of unwanted pregnancy which is result of physical abuse thrust against the victim.
4. The guardian-mother of the victim (petitioner) contends that her daughter is the victim in Crime No. 120/17 registered with Dhadgaon Police Station, Dhadgaon, District Nandurbar, which has been registered on 07.11.2017. After the medical examination of the victim was conducted on 02.11.2017 in a hospital at Akkalkuwa, it is found that she is pregnant and length of the pregnancy is 18 to 19 weeks. Thereafter, she was taken to Nandurbar Hospital on 05.11.2017 for further treatment. It was found that some unknown person had taken disadvantage of the physical situation of the victim, had committed rape on her. The victim is deaf-dumb and mentally retarded. Brother of the victim had lodged report against unknown person for the said crime. He had also filed application on 12.11.2017 for termination of pregnancy to respondent No. 4. However, respondent No. 4 told that since the victim is deaf-dumb-mentally challenged, he will not be able to perform the operation. In the mean time, victim was referred to Medical Superintendent, S. B. H. G. M. C. & Hospital, Dhule for her mental assessment. It was diagnosed with “Sever Mental Retardation”. An application was then preferred before Sessions Judge, Shahada for permission for termination of pregnancy. Final report was given on 28.11.2017. The said application was rejected on 04.12.2017. Hence, this petition.
5. Taking into consideration the contentions raised in the petition, by order dated 07.12.2017, we had directed and referred the victim for medical examination before the Board constituted at Government Medical College & Hospital, Aurangabad. The medical examination was directed in order to ascertain extact psychological and physical condition of the victim.
6. Petitioner was medically examined by five members Expert Committee constituting of—
(1) Dr. Shrinivas Gadappa, (Chairman), HOD Dept. of OBGY,
(2) Dr. S.K. Jain (Member), Prof. & HOD ENT.
(3) Dr. Suhas Jewalikar (Member) HOD, Anaesthesia.
(4) Dr. Varsha Rote, (Member) Prof & HOD, Radiology.
(5) Dr. P.S. Patil, (Member) Prof & HOD Paediatrics.
(6) Dr. Ghuge (Member) HOD, Psychiatry.
7. The Committee has recorded following findings in the report tendered to this Court :
1. From general examination she has no active medical complaints.
2. On Obestetrics examination her vital parameters are within normal limits With approximately 22 weeks of pregnancy.
3. Ultrasonographic examination suggestive of single live intrauterine foetus of approximate 22 weeks, Nuchal thickness 7mm, Unilateral pelvi ureteric Junction obstruction.
4. ENT examination, survivor is congenitally deaf and mute.
5. On psychiatric examination, survivor clinically seems to be of sever intellectual disability.
6. On Paediatrics examination, survivor has gross development delay with Down Syndrome.
8. The conclusions of the Committee are as follows :
1. Current pregnancy, on clinical and ultrasonographical examination is around 22 weeks by gestation. With Nuchal thickness 7mm, unilateral pelvi ureteric junction obstruction
2. Survivor clinically seems to be of severe intellectual disability.
3. Risk of termination of pregnancy is within normal acceptable limits.
9. The Medical Termination of Pregnancy Act, 1971 provides for termination of certain pregnancy by the registered Medical Practitioner. Sections 3, 4 and 5 of the Act are relevant which read thus :
3. When pregnancies may be terminated by registered medical practitioners -
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 186
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