Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 502

IN THE HIGH COURT OF ALLAHABAD
MANOJ KUMAR GUPTA, DEEPAK VERMA, JJ.
CD (2021) - Petitioner
Versus
State of U.P. and Another - Respondents
Writ - C No. 19983 of 2021
Decided On : 03-09-2021

Advocates Appeared:
For the Petitioner: Nipun Singh.
For the Respondent: C.S.C.

Point of Law: Termination of unwanted pregnancy - Petitioner being a minor, 'substituted judgment' test would apply - Petitioner who is only sixteen years of age, does not want to continue with her pregnancy.

Headnote:
Indian Penal Code, 1860 - Section 363 - Protection of Children from Sexual Offences Act 2012 - Section 3/4 - Medical Termination of Pregnancy Act, 1971 - Section 3 - Kidnapped and Gang rape - Writ of mandamus - Petitioner no. 1 while on her way to school, was kidnapped. Petitioner 2, who is father and natural guardian of petitioner no. 1, got registered a FIR against one Manjit. When even after expiry of five months, police failed to trace out petitioner no. 1, a writ petition bearing number 4571 of 2021 was filed before this Court, wherein direction was given to police authorities to ensure recovery of victim girl - Whether continuance of pregnancy would involve any risk to life of petitioner no. 1.
Finding of the Court: Court opinion that petitioner no. 1 should be permitted to terminate unwanted pregnancy - We accordingly allow and permit termination of pregnancy - Pregnancy shall be terminated by a registered medical practitioner at a hospital established or maintained by Government or a place for time being approved for purpose of this Act by Government, as contemplated under Section 4 of Act - Petitioner is directed to present herself for termination of pregnancy at recognized medical centre, as stipulated under Section 4 of Act, well before expiry of 24 weeks, failing which instant order shall automatically lapse - Registrar General is directed to preserve report of Medical Board in sealed cover for future reference, if needed.
Result: Petition stands disposed of.

JUDGMENT :

1. Heard Sri Nipun Singh, learned counsel for the petitioners and Sri Manish Goel, learned Additional Advocate General, Sri Suresh Singh, learned Additional Chief Standing Counsel, assisted by Sri Hari Keshav, learned Standing Counsel, for the respondents.

2. The first petitioner is a victim of gang rape. She has prayed for a mandamus commanding respondent 2 to permit her to terminate her unwanted pregnancy.

3. In brief, the case set up in the writ petition is that petitioner no. 1 while on her way to school, was kidnapped. Petitioner 2, who is father and natural guardian of petitioner no. 1, got registered a FIR (Case Crime No. 0036 of 2021) on 29.1.2021, under Section 363 IPC, against one Manjit. When even after expiry of five months, the police failed to trace out petitioner no. 1, a writ petition bearing number 4571 of 2021 was filed before this Court, wherein direction was given to the police authorities to ensure recovery of the victim girl. On 22.7.2021, petitioner no. 1 was recovered from the custody of named accused. She was produced before Child Welfare Officer, Bulandshahr and after completing legal formalities, her custody was handed over to her parents. It has transpired during investigation that she was ravaged by named accused Manjit and two others. On 24.7.2021, petitioner no. 1 got herself examined at B.B.D. Government Hospital, Bulandshahr and according to ultrasonography report, her pregnancy was of 14 weeks at that time. Her age has been determined to be sixteen years by CMO, Bulandshahr, as is evident from a certificate issued in that regard dated 13.7.2021. The investigating officer upon discovery of evidence regarding rape added Sections 376, 507 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act 2012. The matter is still under investigation. The petitioner is stated to be suffering from extreme mental agony caused by unwanted pregnancy. Reliance has been placed upon Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the 'Act'), in contending that the pregnancy had resulted in great anguish to her and thus involves grave risk to her mental and physical health.

4. On 27.8.2021, this Court after hearing counsel for the petitioners and learned Standing Counsel, passed the following order: -

“On oral mention made by learned counsel for the petitioners that the matter is extremely urgent and shall be rendered infructuous, if not taken immediately, the file was called for.

Heard Sri Nipun Singh, learned counsel for the petitioners and Sri Manish Goel, learned Additional Advocate General assisted by Sri Mohan Srivastava, learned Standing Counsel and Sri Sandeep Kumar Singh (State Law Officer) on behalf of respondents.

The petitioner no. 1 claims to be a rape victim. She has approached this Court, through her guardian-petitioner no. 2 (father) for a mandamus directing the respondents to permit her to terminate her undesirable pregnancy.

Reliance has been placed on Explanation-I to sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act') in contending that the pregnancy has resulted in such extreme anguish to her that it constitutes grave injury to her mental health.

As per radiological report of Chief Medical Officer, Bulandshahr, the date of birth of victim is around 16-17 years and thus, she is a minor. Reliance has also been placed on the amendment made to the 'Act' by the Medical Termination of Pregnancy (Amendment) Act, 2021, dated 25.03.2021 whereby the outer limit for abortion permissibility has been enhanced to twenty four weeks.

It is submitted that as per report of medical examination held on 24.7.2021 at B.B.D. Government Hospital, Bulandshahr, the age of fetus at that time was 14.6 weeks meaning thereby that as of date the pregnancy is of about nineteen weeks.

Section 3 of the