2016 Supreme(P&H) 1053

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Paramjeet Singh Dhaliwal
CWP-6733 of 2016
R (name withheld) & Anr.
v.
State of Haryana & Ors.
{Decided on 30/05/2016}

Headnote:Medical Termination of Pregnancy--Prosecution of Doctors--The fear of chilling effect of prosecution needs to be removed from the mind of doctors.

       Medical Termination of Pregnancy--Rape victim--Gestation period beyond 20 weeks--Keeping in view the objects of the Act and advancement in medical science gestation period should extend to 24 weeks.

       Medical Termination of Pregnancy--No law or a person can ethically compel a woman to carry on pregnancy that she does not want--When pregnancy has progressed to a point where the fetus has become viable, one is compelled to view the situation from the point of the woman as well as the potential child.

       (A) Constitution of India, 1950, Article 21--Right to life--Unwanted pregnancy--Held; that no law or a person can ethically compel a woman to carry on pregnancy that she does not want--When pregnancy has progressed to a point where the foetus has become viable, one is compelled to view the situation from the point of the woman as well as the potential child--Medical Termination of Pregnancy Act, 1971, S.3. (Para 33)

       (B) Medical Termination of Pregnancy Act, 1971, S.3--Prosecution of Doctors--The fear of chilling effect of prosecution needs to be removed from the mind of doctors--Section 3 of MTP Act provides a defence when the termination is done in accordance with the conditions set out in the MTP Act--Further, a medical practitioner is protected by Section 8 of MTP Act for “any damage caused or likely to be caused by anything” for any act done in good faith under the MTP Act. (Para 37)

       (C) Medical Termination of Pregnancy Act, 1971, S.3--Prosecution of Doctors--Central Government is advised to consider making amendments to the Medical Termination Of Pregnancy Act, 1971 and clarify in so many words to the doctors that they will not be unnecessarily prosecuted if they act in accordance with the rules in good faith to save the life of a victim of rape or to prevent grave injury to her physical and mental health--Termination of pregnancy in good faith which results from crime is otherwise permitted under the provision of MTP Act.

       (D) Medical Termination of Pregnancy Act, 1971, S.3--Rape victim--Gestation period beyond 20 weeks--Keeping in view the objects of the Act and advancement in medical science gestation period should extend to 24 weeks--Draft amendment in the Act also provides for the same.

       (E) Medical Termination of Pregnancy Act, 1971, S.3--Rape victim--Gestation period beyond 20 weeks--Petitioner was allegedly minor when the petitioner was sexually assaulted--Doctors who initially medically examined the victim did not performed pregnancy test--Petitioner filed writ for directions for abortion--High Court formed medical board and gave them authority that to terminate pregnancy if it pose risk to life of the pregnant woman or will cause grave injury to her physical and mental health without any further orders--Victim had threatened that she would commit suicide was if not allowed to terminate because pregnancy is causing her a lot of mental anguish and embarrassment in society--Medical board gave finding that continuation of pregnancy would be great risk for victim but decided not to terminate--Held;

       (i) In view of opinion of Medical Board of PGIMER court cannot pass the order to terminate the pregnancy--However, directions given to AIIMS to carry out feasibility of termination without further orders.

       (ii) In case termination is not possible and after birth of child, petitioner is unwilling to keep child then efforts should be made to make arrangements for adoption of child;

       (iii) All the expenses incused to this regard shall be borne by State department of health and family welfare.

       (F) Medical Termination of Pregnancy Act, 1971, S.3--Unwanted Pregnancy--Directions to Advocate Generals of Punjab and Haryana and standing counsel for U.T. that if, and when, any case is brought to Court for passing of any orders under the MTP Act, the said case can be determined on the first day itself by sending the woman to the medical board immediately for quick action if possible under the provisions of law--The need for filing of reply should not arise so as to avoid wasting of precious time available with the pregnant victim. (Para 42)

       (G) Indian Penal Code, 1860, S.376--Rape victim--Name not to be mentioned--High Court Registry directed not to mention the name of rape victim in the cause list, judgment order, but they may refer to her name by mentioning the first alphabet of her name--The Counsel representing the victim of rape are also requested not to disclose the identity of victim in the petition in the head-note of petition--They may also write the first alphabet of name of the victim and may quote ‘name withheld’ in particulars--Medical Termination of Pregnancy Act, 1971, S.3. (Para 42)

       (H) Medical Termination of Pregnancy Act, 1971, S.3--Awareness of Rights--Seminars for investigating agencies, doctors, lawyers and judicial officers who have occasion to deal with such cases should be organized periodically--They should be sensitized about the urgency and immediate need of counselling and other medical assistance required to a rape victim--The respective departments having control over these agencies should regularly update its officers/officials about the legal provisions and settled law on the subject--The Refresher Courses for the members of the Superior and Subordinate Judiciary of the States of Punjab, Haryana and U.T. Chandigarh be held to make them aware of the provisions of the MTP Act and urgency in such cases. In order to ensure that if any case is brought before the gestation period reaches 20 weeks, victim be informed about her choice to seek termination at the earliest. (Para 42)

       (I) Medical Termination of Pregnancy Act, 1971, S.3--Objects of the Act--Under the MTP Act, women have restricted right to termination of pregnancy--The declared objects of the MTP Act are to help women, who become pregnant as a result of rape, women who are pregnant due to contraceptive failure (applicable to married women/marital sexuality) or to reduce the risk of severely handicapped children being born. (Para 33)

       (J) Medical Termination of Pregnancy Act, 1971, S.3--Scheme of the Act--Summed up as follows--

       (i) Reasons to seek termination of pregnancy should be as mentioned under Section 3 of MTP Act--If those reasons are not present, no pregnancy can be legally terminated.

       (ii) Length of pregnancy is a vital factor to give green signal for termination.

       (iii) Pre-requisites of doctor’s opinion to declare fit for termination as per law--The Length of pregnancy determines the need for opinion of one or more doctors.

       (iv) Consent of woman or her guardian (minor and mentally ill) is mandatory.

       (v) To save life of woman, Section 5 lifts the embargo of termination on post 20-weeks pregnancy and requirement of more than one doctor’s opinion--But the language used is “immediately”.

       (vi) No provision stipulates judicial authorization of MTP in any case including those necessitating termination on account of mental anguish in woman due to rape committed on her.