JUDGMENT

Vivek Rusia, J. - The petitioner has filed the present petition seeking permission/direction for termination of pregnancy. According to the petitioner, his daughter was born in the year 2006. The petitioner has lodged an FIR on 22.11.2022 registered at Crime No.108/2022, Police Station Chandi Helapadaya (Chainpur), District Khargone alleging kidnapping and sexual assault. Because of the said unfortunate incident, she has become pregnant and at present, she is carrying pregnancy of 25 weeks. Since, she is victim of rape, therefore, she is not willing to continue the pregnancy and hence, she is before this court seeking direction to the respondents to terminate her pregnancy.

2. Vide order dated 29.12.2022 this Court directed directed the learned Govt. Advocate to arrange a Medical Board comprising of experts from the Gynecological Department to examine the petitioner' on the same day and submit the report positively by the next date of hearing.

3. The Professor & Head of Department of Obstetrics & Gynaecology, MGM Medical College, Indore through the opinion given by the Medical Board has sent the report dated 30.12.2022. As per opinion given by the Medical Board, the petitioner is allowed for termination of pregnancy and she is physically fit for the same.

4. Learned counsel for the petitioner submits that in view of the explanation of sub-section (2) of Section 3 the termination of pregnancy is permissible.

5. The Apex Court in case of Ms. X Vs. Union of India & Others, reported in AIR 2016 SCC 3525 has held that Section 5 of the Act lay down the exception to Section 3 if as per opinion of less than 2 registered Medical Practitioner gives the opinion of in good faith in respect of termination of pregnancy to save the life of pregnant women. By placing reliance over the aforesaid section the Apex Court has granted liberty to the petitioner to terminate her pregnancy. Relevant portion of the aforesaid judgement is reproduced below:

"5. The question that arises for our consideration is, whether it would be justified and legal, to terminate the pregnancy of the Petitioner, which the Medical Report itself shows, as of 24 weeks duration? Learned Attorney General representing the Union of India has invited our attention to Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act') which is extracted below:

3. When pregnancies may be terminated by registered medical practitioners.-

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of Sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnan