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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 23rd OF JUNE, 2022

WRIT PETITION No. 13842 of 2022

Between:-
A MINOR GIRLS THROUGH HER MOTHER F
NOT MENTION (MADHYA PRADESH)

.....PETITIONER
(BY SMT. DIVYAKEERTI BOHARE-ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH

THE CHIEF SECRETARY PUBLIC HEALTH AND
FAMILY WELFARE DEPARTMENT VALLABH
BHAWAN DISTRICT BHOPAL (MADHYA
PRADESH)

2. D E A N , DEPARTMENT OF OBSTETRICS AND

GYNECOLOGY , NETAJI SUBHASH CHANDRA
BOSE GOVERNMENT MEDICAL COLLEGE
JABALPUR, M.P. (MADHYA PRADESH)

.....RESPONDENTS
(BY MS.SHWETA YADAV- GOVERNMENT ADVOCATE)

This petition coming on for admission this day, th e court passed the

following:
ORDER

Heard finally with the consent of both the parties.

In this petition, under Article 226 of the Constitution of India, the
petitioner has prayed for the following reliefs :-
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Date: 2022.06.23 19:24:03 IST
"i. That, this Hon'ble Court may kindly be pleased to call the
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record of the matter and direction may be given to the respondents
to abort the foetus scientifically as soon as possible and to conduct
DNA test of the foetus for the purpose of evidence in the trial.
ii. The victim who is a minor daughter of a poor widow is also
seeking direction to give her appropriate compensation as per the
policy of the state govt.
iii. Any other relief(s), which this Hon'ble Court deems just
and necessary in the facts and circumstances of the case, may also
be awarded to the petitioner."

Case of the petitioner is that a report was lodged by her mother at Police
Station Ramnagar, District Satna for offence punishable under section 363 of
IPC vide Crime No.235/2022. During investigation, the petitioner came to know
about the pregnancy and medical examination was conducted by the registered
Medical Practitioner, who gave the report of pregnancy as "positive". Since
continuance of pregnancy would cause grave injury to mental health of the
petitioner and would create a great mental agony for her entire life and may also
invite socio-economic problems, therefore, she has filed the present writ
petition seeking direction to the respondents authorities to terminate her
pregnancy under the provisions of Sections 3,4 and 5 of the Medical
Termination of Pregnancy Act 1971 and rules made thereunder. It is further
submitted that according to Article 21 of the Constitution of India, she has right
to live with dignity and with personal liberty and there can not be any restriction
whatsoever on the exercise of reproductive choices. Admittedly the petitioner is
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above the age of 14 years.

Digitally signed by TRUPTI GUNJAL
Date: 2022.06.23 19:24:03 IST

This Court vide order dated 20.6.2022 directed respondent no.2, the
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Dean, Department of Obstetrics and Gynecology, Netaji Subhash Chandra
Bose Government Medical College, Jabalpur, to constitute a team consisting
two lady medical practitioners (lady gynecologist) to get the petitioner medically
examined to ascertain whether at this stage, the pregnancy of 25 weeks can be
terminated or not?
Respondents in compliance of the aforesaid order, has produced a
medical examination report submitted by the duly constituted Committee dated
22.06.2022, which is taken on record. The same is reproduced herein below :-

"Survivor 14 years, Resident of Gram-Pagara, Post-

Mahudar,Tehsil-Amarpatan, District-Satna (M.P.) With
reference to the order from Honorable High Court Jabalpur
W.P.No.13842/2022 dated 20/06/2022, we undersigned opine
that the survivor who is pregnant 24 weeks 5 days (documented
obstetrics Ultrasonography on 21.6.22) is medically fit (by
Physician) for termination of pregnancy (Hb11.1.gm%, Tlc-

5.86 x 103/uL, platelet count-362 x103/uL which is within

normal limit).
Opinion-
Team of expert committee (Three Gynaecologist and one
Psychiatrist) examined the patient and after reviewing the

investigation report, we opine that the Survivor's pregnancy can

be terminated with Explained Risks and Consent."

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The Medical Termination of Pregnancy Act, 1971 (for brevity 1971
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Act) provides for termination of certain pregnancies by registered medical
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practitioners and for matters connected therewith or incidental thereto. The

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relevant sections 3, 4 and 5 of the said 1971 Act are reproduced below for
ready reference and convenience:-
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 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
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mental health of the pregnant woman.
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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 pregnant woman.
(3) In determining whether the continuance of pregnancy
would involve such risk of injury to the health as is mentioned in sub-
section (2), account may be taken of the pregnant woman's actual or
reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the
age of eighteen years, or, who, having attained the age of eighteen
years, is a lunatic, shall be terminated except with the consent in
writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall
be terminated except with the consent of the pregnant woman.
4. Place where pregnancy may be terminated.-No
termination of pregnancy shall be made in accordance with this Act
at any place other than,- (a) a hospital established or maintained by
Government, or
(b) a place for the time being approved for the purpose of this
Act by Government.
Provided that the District Level Committee shall consist of not
less than three and not more than five members including the

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Chairperson, as the Government may specify from time to time.]

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5. Sections 3 and 4 when not to apply.- (1) The provisions
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of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3

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as relate to the length of the pregnancy and the opinion of not less
than two registered medical practitioner, shall not apply to the
termination of a pregnancy by the registered medical practitioner in
case where he is of opinion, formed in good faith, that the
termination of such pregnancy is immediately necessary to save the
life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal
Code (45 of 1860), the termination of a pregnancy by a person who
is not a registered medical practitioner shall be an offence punishable
under that Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than
t h a t mentioned in section 4, shall be punishable with rigorous
imprisonment for a term which shall not be less than two years but
which may extend to seven years.
(4) Any person being owner of a place which is not approved

under clause (b) of section 4 shall be punishable with rigorous

imprisonment for a term which shall not be less than two years but
which may extend to seven years.
Explanation 1.-For the purposes of this section, the expression
"owner" in relation to a place means any person who is the
administrative head or otherwise responsible for the working or
maintenance of a hospital or place, by whatever name called, where
the pregnancy may be terminated under this Act.
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SAN Explanation 2.-For the purposes of this section, so much of
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Date: 2022.06.23 19:24:03 IST the provisions of clause (d) of section 2 as relate to the possession,
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by registered medical practitioner, of experience or training in
gynecology and obstetrics shall not apply.]

In view of the aforesaid, the termination of pregnancy is permissible

where pregnancy does not exceed 20 weeks and if such termination is
recommended by at least two registered medical practitioners who are of the
opinion formed in good faith that continuance of pregnancy would involve risk
to the pregnant woman.
Explanation 1 to section 3 (2) enlarges the definition of grave injury to
mental health contemplated by section 3 (2) (b)(i) of 1971 Act, to include
anguish suffered by a rape victim.
Thus the right interpretation of Explanation 1 to section 3 (2) is that even
if a rape victim carrying pregnancy not exceeding twenty weeks is
recommended by at least two registered medical practitioners to be not facing
risk of life or grave injury solely due to pregnancy, even then the anguish which
the rape victim suffers per se is sufficient to constitute grave injury to the mental
health of the pregnant woman (victim of crime of rape).
In case of Meera Santosh Pal and Others Vs. Union of India
and Others, reported in 2017(I) MPWN 44, the Apex Court has
permitted the termination of pregnancy even after 24 weeks. Relevant
portion of the aforesaid judgement is reproduced below:
"The crucial consideration is that a woman's right to
privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the
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exercise of reproductive choices such as a woman's right to

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refus e participation in sexual activity or alternatively the

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insistence on use of contraceptive methods. Furthermore,
women are also free to choose birth control methods such as
undergoing sterilisation procedures. Taken to their logical
conclusion, reproductive rights include a woman's entitlement
to carry a pregnancy to its full term, to give birth and to
subsequently raise children..... The crucial consideration in the
present case is whether the right to bodily integrity calls for a
permission to allow her to terminate her pregnancy. The report
of the Medical Board clearly warrants the inference that the
continuance of the pregnancy involves the risk to the life of the
pregnant woman and a possible grave injury to her physical or
mental health as required by Section 3 (2)(i) of the Medical
Termination of Pregnancy Act, 1971. Though, the pregnancy is
into the 24th week, having regard to the danger to the life and
the certain inability of the fetus to survive extra uterine life, we
consider it appropriate to permit the petitioner to terminate the
pregnancy. The overriding consideration is that she has a right
to take all such steps as necessary to preserve her own life
against the avoidable danger to it.
In recent judgment passed by the constitution bench of the Supreme
Court in case of Murugan Nayakkar Vs. Union of India and Others,
passed in W.P(Civil). No.749/2017 the Court has permitted termination
o f pregnancy of a 13 year old victim of rape and sexual 7 abused,

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considering the trauma which she has suffered. Relevant portion of the

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aforesaid judgement is reproduced below:
Date: 2022.06.23 19:24:03 IST
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"The petitioner who is a 13 years old girl and a victim of
alleged rape and sexual abuse, has preferred this writ petition
for termination of her pregnancy. When the matter was listed on
28.8.2017, this Court has directed constitution of a Medical
Board at Sir J.J. Group of Hospitals, Mumbai. Be it noted, this
Court had also mentioned the composition of the team of
doctors. The petitioner has appeared before the Medical Board
on 1.9.2017 and the Medical Board that has been constituted by
the order of this Court expressed the opinion Signature Not
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termination of pregnancy should be carried out. That ARORA
Date: 2017.09.06 18:28:22 IST Reason: apart, it has also been
opined that termination of pregnancy at this stage or delivery at
term will have equal risks to the mother. The Board has also
expressed the view that the baby born will be preterm and will
have its own complications and would require Neonatal
Intensive Care Unit (N.I.C.U.) admission".
In the light of the aforesaid law and judgments, considering age of the girl
to be 14 years, trauma and agony which she has suffered and keeping in view
t h e report of medical Board constituted by this Court vide order dated
20.06.2022, this Court is of the opinion that prayer made by the petitioner
deserves to be allowed and is accordingly allowed. The case of the petitioner is
covered under explanation of sub-section (2) of Section 3 of the Act, 1971. The

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respondent No.2 the Dean, Department of Obstetrics and Gynecology, Netaji

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Subhash Chandra Bose Government Medical College, Jabalpur is directed to
Date: 2022.06.23 19:24:03 IST

carry out termination of pregnancy through a team of expert doctors

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immediately if health condition of the girl i.e. the petitioner permit them to do
so. The Doctors specialized in the field are the best experts to take decision
about health condition of the girl before and after termination of the pregnancy.
This Court is issuing directions only on the basis of the report of the duly
constituted Medical Board and in view of the law laid down by the Apex Court
in that cases referred hereinabove which shall be subject to health condition and
the same shall be done in accordance with law. Respondents are directed to
take immediate steps for termination of pregnancy within seven days positively
and do the needful. It is needless to mention that Head of the Department of
Gynecology, Head of Department Anesthesia and all other specialized doctors
shall remain present at the time of termination of pregnancy. After the
termination of pregnancy is carried out, the State of Madhya Pradesh shall
ensure post-operative care of girl. The respondents are further directed that in
the event pregnancy is terminated, they will keep DNA sample of foetus and
shall also keep the same in a sealed cover as per procedure prescribed.
So far as prayer with regard to grant of compensation is concerned, the
petitioner would be free to file a detailed representation before the competent
authority seeking compensation under the Madhya Pradesh Crime Victim
Compensation Scheme, 2015 within a periods of 15 days. If such a
representation is filed within the aforesaid period, the competent authority of the
respondents shall decide the same in accordance with the scheme as
expeditiously as possible, preferably, within a period of 4 weeks thereafter.
With the aforesaid, present writ petition stands allowed.
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SAN No order as to costs.
Digitally signed by TRUPTI GUNJAL
Date: 2022.06.23 19:24:03 IST C.C.today.
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(S. A. DHARMADHIKARI)
JUDGE
TG /-

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Date: 2022.06.23 19:24:03 IST