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IN THE HIGH COURT OF ALLAHABAD
Manoj Kumar Gupta, Deepak Verma, JJ.
Ab (2021) – Petitioner
Versus
State Of U.P. And Others – Respondents
Writ C No. - 19783 of 2021
Decided On : 01-09-2021
Indian Penal Code,1860 - Sections 363, 366,367, 506 - Medical Termination of Pregnancy Act, 1971 – Section 3,3(2) - Rape Case - Criminal Intimidation - Pregnancy had resulted in great anguish to her and thus involves grave risk to her mental and physical health - Brother of the petitioner under Section 363, 366, 506 IPC alleging that she had been abducted by three named accused and two unknown persons - Police after investigation had submitted a charge sheet against accused persons under Section 366, 376 IPC - Trial is stated to be pending - Petitioner has alleged that she is suffering from extreme mental agony caused by unwanted pregnancy- Reliance has been placed upon Section 3 of Medical Termination of Pregnancy Act, 1971 in contending that pregnancy had resulted in great anguish to her and thus involves grave risk to her mental and physical health - Whether continuance of pregnancy would involve any risk to the life of petitioner - Whether continuance of pregnancy would otherwise result in any grave injury to petitioner - Whether there is substantial risk that if child were born it would suffer from any serious physical or mental abnormality - Length of pregnancy? - Whether continuance of pregnancy would involve any risk to life of petitioner? - Whether continuance of pregnancy would otherwise result in any grave injury to petitioner - Whether pregnancy should be permitted to be continued or not
Finding of the Court : Section 3 of Act provides that a pregnancy could be terminated by a registered medical practitioner if he is of opinion formed in good faith that continuance of pregnancy would involve a risk to life of pregnant woman or grave injury to her physical or mental health or there is a substantial risk of child suffering from physical or mental abnormalities if born - As per history and mental status examination she had a traumatic experience and is under stress but she doesn't have any diagnosable mental health problem at present - However she may - Based on examination and USG report there is no physical abnormality in fetus at present - As per evidence in medical literature children born out of rape are more likely to suffer from physical and mental health problems (like Low Birth Weight Failure to thrive, Depression, Personality Disorders) due to poor mother-child relationship abusive parenting or neglect by mother - Court find that apart from presumption that is engrafted under first Explanation to sub-section 2 of Section 3 of Act report of Medical Board is unequivocally in favour of fetus being aborted to prevent risk to life of petitioner - Court accordingly allow and permit termination of pregnancy - 'Best interest' test requires court to ascertain course of action which would serve best interest of person in question - Substituted judgment' test requires court to step into the shoes of a person who is considered to be mentally incapable and attempt to make decision which said person would have made if she was competent to do so – Court further direct that in terms of request made by petitioner by filing supplementary affidavit tissues and blood samples ofthe fetus shall be preserved by hospital where pregnancy is terminated - It shall be forwarded to nearest Government approved forensic laboratory for preservation and testing as may be directed by trial court seized of matter
Result: Petition disposed of
JUDGMENT :
1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.
2. The petitioner is a victim of rape. She has prayed for a mandamus commanding the respondent authorities to permit her to terminate her undesirable pregnancy.
3. In brief, the case set up in the writ petition is that an FIR was lodged by the brother of the petitioner on 1.5.2021, under Section 363, 366, 506 IPC, alleging that she had been abducted by three named accused and two unknown persons. The police after investigation had submitted a charge sheet on 19.6.2021 against accused persons under Section 366, 376 IPC. The trial is stated to be pending. The petitioner has alleged that she is 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, after hearing counsel for the petitioner and learned Standing Counsel, we passed the following order: -
Heard Sri Manoj Kumar Srivastava, learned counsel for the petitioner and Sri Mohan Srivastava, learned Standing Counsel and Sri Sandeep Kumar Singh (State Law Officer) on behalf of respondents.
The petitioner claims to be a rape victim. She has approached this Court 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 High School mark-sheet, the date of birth is 01.07.1997 and thus, she is a major. 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 has been enhanced to twenty four weeks.
It is submitted that as per report of medical examination held on 20.05.2021 at District Women Hospital, Rampur, the age of fetus was eight weeks and one day at that time and as of date, the age of fetus is around twenty two weeks, two days i.e. less than twenty four weeks.
Section 3 of the 'Act' permitted termination of pregnancy in accordance with the provisions of the said Act. The outer limit prescribed for termination of pregnancy was twenty weeks. The same has been increased to twenty four weeks by the Amendment, Act of 2021. The Explanation-I to Section 3 of the Act, permits termination of pregnancy of a victim of rape by raising a presumption that the anguish caused by pregnancy in such cases constitute a grave injury to her mental health. Learned counsel for the petitioner states that it would be convenient for the petitioner to get her pregnancy terminated at Aligarh which is near Rampur.
Accordingly, we request the Vice Chancellor, Aligarh Muslim University, Aligarh to constitute a Board of four experts one each in the field of Gynecology, Psychiatry, Radiology or Sonology and Pediatrics.
The first Additional District Judge, Aligarh shall act as a member cum co-ordinator of the medical Board.
The petitioner shall present herself before the Medical Board for medical examination day after tomorrow i.e. 29.08.2021 at 11 am. The Board after carrying out medical examination of petitioner, shall submit its opinion/recommendation in sealed cover to the First Additional District Judge, Aligarh, who shall forthwith transmit the same to this Court. The opinion/recommendation of the
Pregnancy shall be terminated by a registered medical practitioner at a hospital established or maintained by Government or a place for the time being approved for the purpose of this Act by Governme....
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.
The court's decision was based on the interpretation of the Medical Termination of Pregnancy Act, 1971, and the legal presumption regarding pregnancy resulting from rape, as well as the best interest....
The court affirmed that termination of pregnancy after 20 weeks for rape victims is permissible when mental and physical health risks are evident, prioritizing the victim’s best interests.
The judgment establishes the right of a rape victim to terminate pregnancy based on the risk to her life and mental health, as provided in the Medical Termination of Pregnancy Act, 1971.
The court's decision emphasized the importance of considering the mental and physical well-being of the victim in allowing the termination of pregnancy beyond the statutory limit.
The court affirmed the victim's right to terminate her pregnancy exceeding 24 weeks, emphasizing mental health considerations as paramount, grounded in the Medical Termination of Pregnancy Act's prov....
Termination of 28-week high-risk pregnancy of minor victim permitted beyond statutory limit, safeguarding physical/mental health and right to dignity under Article 21 based on Medical Board opinion.
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