HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE MR. S. C. SHARMA, J
WRIT PETITION NO. 408 / 2013
HALLO BI @ HALIMA W/O AAMIN
Vs.
STATE OF MADHYA PRADESH
& TWO OTHERS
ORDER
( 16/01/2013)
The petitioner before this Court, who is in Jail in
respect of a Crime registered at Crime No. 1492 / 2012 for
an offence punishable u/S. 302 of the Indian Penal Code,
has filed this present petition for issuance of an appropriate
writ, order or direction directing the respondents to permit
the petitioner to terminate her pregnancy.
The contention of the petitioner is that she was forced
into prostitution by one Usman and on account of forced
prostitution, she became pregnant. Petitioner has further
stated that an application was submitted to the Jail
Authorities for termination of pregnancy and the matter was
forwarded to the CJM, Indore for grant of necessary
permission and the CJM in a mechanical manner, on
14/12/12 has rejected the petitioner's application for grant of
termination of pregnancy. Notices were issued by this court
on 10/1/13 and Mr. Piyush Mathur, learned Senior Counsel
was appointed as amicus curiae to assist this Court.
Section 3 of The Medical Termination of Pregnancy
Act, 1971 provides a medical opinion by a registered
medical practitioner and, therefore, the matter was
immediately referred to obtain an opinion from the Head of
the Department, Gynaecology and Obstetrics, M.G.M.
Medical College / M. Y. Hospital, Indore. The petitioner
was subjected to medical examination by Dr. Laxmi Maroo,
Professor and Head of the Department, Gynaecology and
Obstetrics, M.G.M. Medical College, Indore and her report
reflects that at the time of medical examination, the
petitioner has stated that she is not willing for termination of
pregnancy.
Again the matter was listed before this Court on
11/1/13 and as a statement was once again made before this
Court by the learned counsel for the petitioner that the
petitioner now wants to terminate the pregnancy, the
Superintendent of Jail, Distt. Jail, Indore was directed to
produce the petitioner before this Court on 15/1/13.
The petitioner was present before this Court on 15/1/13
and the petitioner in open court categorically stated that she
was forced into prostitution, she was sold in the State of
Rajasthan and on account of the forced prostitution, she has
become pregnant. The petitioner has categorically stated in
the open court that she wants to terminate pregnancy and at
the relevant point of time the medical examination took
place she was nervous and scared of the surrounding
environment as well as she was very tense. The observation
has been made by the Doctor that she does not want to
terminate the pregnancy. This Court, by way of abundant
caution has requested respected lady Lawyers of this Court
to interact with the petitioner and Ms. Meena Chaphekar and
Mrs. Vinita Phaye, Advocates have interacted with the
petitioner and have informed this Court that the petitioner
wants to terminate the pregnancy. The first medical
examination of the petitioner took place on 10/1/13 and the
age of the foetus was assessed at 11 weeks and 4 days and
therefore, keeping in view Rule 3, clause (2) sub-clause (ii),
a report of two registered medical practitioners /
Government Doctors was required.
This Court has again referred the matter for medical
opinion and now, today, a fresh report has been received.
The report has been submitted on behalf of two Doctors
posted
at
M.
Y.
Hospital,
Indore
and
both
are
Gynaecologist. They have opined that the pregnancy can be
terminated.
The
report
has
been
received
through
Superintendent of Jail, District Jail, Indore and the same is
taken on record.
Mrs. Vinita Phaye, learned counsel for the respondent
State has also argued before this Court that pregnancy can
be terminated keeping in view Section 3 of The Medical
Termination of Pregnancy Act, 1971
As statement was made by the petitioner in the open
Court that she was subjected to forced sex / rape, she was
also directed to submit an affidavit and she has submitted an
affidavit dt. 15/1/13. The affidavit reflects that she was
subjected to forced sex. She has stated that she wants to
terminate the pregnancy and does not want to give birth to
the child. Thus the petitioner has not only filed an affidavit,
but had stated in open court that she was subjected to forced
sex and wants to terminate the pregnancy. The report as
required under The Medical Termination of Pregnancy Act,
1971 is also in favour of the petitioner.
Mr. Piyush Mathur, learned sr. counsel appointed as
amicus curiae, has argued before this Court that as the
petitioner is alleging pregnancy on account of forced sex /
rape and there is no report in respect of the so-called rape
and it will result in further complications in the matter. The
arguments canvassed by the learned sr. counsel does deserve
consideration. That will be dealt with in the later paragraphs.
Heard learned counsel for the parties at length and
perused the record. The matter is being disposed of at the
admission stage itself with the consent of the parties.
In the present case, it is an undisputed fact that the
petitioner is lodged in District Jail, Indore for an offence
u/S. 302 of the Indian Penal Code. The allegation is, as
informed by the learned counsel for the petitioner, that she
has allegedly committed murder of one Usman, and the
matter is still under investigation. The petitioner was brave
enough to state in open court before everyone that she was
forced into prostitution and on account of forced prostitution
she is pregnant. The petitioner has also informed this Court
that she was sold in the State of Rajasthan and everyday she
was subjected to forced sex / rape.
In the present case, the petitioner wants to abort the
child and has challenged the order passed by the CJM,
rejecting her prayer to abort the child. Section 3 provides for
medical opinion of a registered medical practitioner and as
the length of pregnancy is about 12 weeks, the matter was
referred to M.Y. Hospital, Indore for obtaining medical
opinion of two Doctors. Two lady Doctors including the
Head of the Department, Gynaecology and Obstetrics,
M.G.M. Medical College / M. Y. Hospital, Indore has
categorically stated that pregnancy of the petitioner can be
terminated vide report dt. 16/1/13, meaning thereby the
medical opinion to abort the child is in her favour.
The Indian Penal Code was enacted in the year 1860
and abortion was a crime punishable by imprisonment upto
7 years and also with a fine. The Exception provided was in
order to save life of the women. Large number of women
died attempting illegal abortions and finally the Government
of India constituted a Committee known as “Abortion
Committee” and the Committee submitted its report in
December 1966. Based upon the report of the Abortion
Study Committee and after inviting objections and
suggestions, The Medical Termination of Pregnancy Act,
1971 was enacted in 1971. The Medical Termination of
Pregnancy Act, 1971 provides for abortion, in case of
woman whose physical / mental health are endangered by
the pregnancy, woman facing birth of a potentially
handicapped or malform child, rape, pregnancy in unmarried
girls under the age of 18, with the consent of guardian,
pregnancies in lunatics, with the consent of a guardian,
pregnancies which are result of failure in sterilization. This
Act provides for termination of pregnancy in case of rape
which is in fact, forced sex with the victim who was led into
prostitution by use of force and, therefore, in the peculiar
facts and circumstances of the case, keeping in view, the
statement of the petitioner, the Act of 1971 does permit
abortion in the peculiar facts and circumstances of the
present case also. The Act of 1971 provides for a legal
method of abortion in respect of cases mentioned in the Act.
It is really shocking that in our country every year almost 11
million abortions takes place and 20000 women die every
year due to abortion related complications. Most abortion
related maternal deaths are attributable to illegal abortions
and, therefore, The Medical Termination of Pregnancy Act,
1971 has authorised a procedures for abortion in respect of
cases mentioned in the Act. It certainly provides for a
safeguard to women to abort a child keeping in view the
statutory provisions as contained under the Act. Pre-natal
Test for determining the sex of the foetus, is a crime under
the Indian laws and a punishment is also provided under
various statutory provisions for termination of pregnancy
and for determining the sex of foetus. However, the present
case is having a distinguishing feature, the sex of the child
has not been determined, foetus is on account of the forced
prostitution, as alleged by the petitioner, and, therefore, case
of the petitioner in respect of the abortion, is squarely
covered under the Exceptions where permission can be
granted for abortion as per the statutory provisions as
contained under The Medical Termination of Pregnancy
Act, 1971.
As already stated earlier, The Medical Termination of
Pregnancy Act, 1971 was enacted by the Parliament in 22nd
year of the Republic of India and it came into force on
1/4/1972. Earlier under the Indian Penal Code abortion was
made a crime for which mother as well as the abortionist
could be punished except where it had to be induced in order
to save life of the mother. Provisions relating to abortion
under the Indian Penal Code were enacted about a Century
ago, keeping in view the then British Law on the subject.
The Medical Termination of Pregnancy Act, 1971
provides for termination of pregnancy on health grounds and
in those cases where there is a danger to life or risk to
physical or mental health of a woman and also on
humanitarian ground where the pregnancy arises from sex
crimes like rape or intercourse with lunatic woman etc.,
Section 3 of The Medical Termination of Pregnancy
Act, 1971 reads as under :
"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 pregnant woman.
(3) In determining whether the
continuance of a 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 mentally ill person, shall be
terminated except with the consent in
writing of her guardian.
(b) Save as otherwise provided in
clause (a), no pregnancy shall be terminated
except with the consent of the pregnant
woman."
Section 3 provides for Opinion from a registered
Medical Practitioner where the length of pregnancy does not
exceed 12 weeks and where the length of pregnancy exceed
12 weeks, from two medical practitioners and permission
can be granted where pregnancy is alleged by the pregnant
woman to have been caused by rape and the anguish caused
by such pregnancy shall be presumed to constitute a grave
injury to the mental health of a pregnant woman. The
Statement of Objects & Reasons for enacting the Act of
1971 was to help a victim of a sex crime like rape or
intercourse with a lunatic woman also.
In the present case, the petitioner who was present in
the court was brave enough to state before everyone that she
was forcibly forced into prostitution. She was sold for
prostitution and every day she was subjected to forced
prostitution / rape. Forced prostitution, in the considered
opinion of this court, virtually amounts to rape and,
therefore, this Court is of the considered opinion, that the
petitioner's case falls under Exception I of Section 3, clause
(ii) of the Act of 1971.
We cannot force a victim of violent rape / forced sex to
give birth to a child of a rapist. The anguish and the
humiliation which the petitioner is suffering daily, will
certainly cause a grave injury to her mental health. Not only
this, the child will also suffer mental anguish in case the
lady gives birth to a child.
The apex court in the case of Suchita Srivastava and
another Vs. Chandigarh Administration reported in (2009) 9
SCC 1, in para, 20 to 27, 31 and 58 has held as under:
20. In this regard we must stress
upon the language of Section 3 of the
Medical Termination of Pregnancy
Act, 1971 [Hereinafter also referred to
as 'MTP Act'] which reads as follows :-
"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 pregnant woman.
(3) In determining whether the
continuance of a 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
mentally ill person, shall be terminated
except with the consent in writing of
her guardian.
(b) Save as otherwise provided in
clause (a), no pregnancy shall be
terminated except with the consent of
the pregnant woman."
A plain reading of the above-
quoted provision makes it clear that
Indian law allows for abortion only if
the specified conditions are met.
21. When the MTP Act was first
enacted in 1971 it was largely
modelled on the Abortion Act of 1967
which had been passed in the United
Kingdom. The legislative intent was to
provide a qualified 'right to abortion'
and the termination of pregnancy has
never been recognised as a normal
recourse for expecting mothers.
22. There is no doubt that a woman's
right to make reproductive choices is
also a dimension of 'personal liberty' as
understood under Article 21 of the
Constitution of India. It is important to
recognise that reproductive choices can
be exercised to procreate as well as to
abstain from procreating. 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 exercise of
reproductive choices such as a
woman's right to refuse participation in
sexual activity or alternatively the
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.
However, in the case of pregnant
women there is also a 'compelling state
interest' in protecting the life of the
prospective child. Therefore, the
termination of a pregnancy is only
permitted when the conditions
specified in the applicable statute have
been fulfilled. Hence, the provisions of
the MTP Act, 1971 can also be viewed
as reasonable restrictions that have
been placed on the exercise of
reproductive choices.
23. A perusal of the above mentioned
provision makes it clear that ordinarily
a pregnancy can be terminated only
when a medical practitioner is satisfied
that a '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' [as per
Section 3(2)(i)] or when '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' [as per
Section 3(2)(ii)]. While the satisfaction
of one medical practitioner is required
for terminating a pregnancy within
twelve weeks of the gestation period,
two medical practitioners must be
satisfied about either of these grounds
in order to terminate a pregnancy
between twelve to twenty weeks of the
gestation period.
24. The explanations to this provision
have also contemplated the termination
of pregnancy when the same is the
result of a rape or a failure of birth-
control methods since both of these
eventualities have been equated with a
'grave injury to the mental health' of a
woman.
25. In all such circumstances, the
consent of the pregnant woman is an
essential requirement for proceeding
with the termination of pregnancy.
This position has been unambiguously
stated in Section 3(4)(b) of the MTP
Act, 1971.
26. The exceptions to this rule of
consent have been laid down in Section
3(4)(a) of the Act. Section 3(4)(a) lays
down that when the pregnant woman is
below eighteen years of age or is a
'mentally ill' person, the pregnancy can
be terminated if the guardian of the
pregnant woman gives consent for the
same. The only other exception is
found in Section 5(1) of the MTP Act
which permits a registered medical
practitioner to proceed with a
termination of pregnancy when he/she
is of an opinion formed in good faith
that the same is 'immediately necessary
to save the life of the pregnant woman'.
Clearly, none of these exceptions are
applicable to the present case.
27. In the facts before us, the State
could claim that it is the guardian of
the pregnant victim since she is an
orphan and has been placed in
government-run welfare institutions.
However, the State's claim to
guardianship cannot be mechanically
extended in order to make decisions
about the termination of her pregnancy.
An ossification test has revealed that
the physical age of the victim is around
19-20 years. This conclusively shows
that she is not a minor. Furthermore,
her condition has been described as
that of 'mild mental retardation' which
is clearly different from the condition
of a 'mentally ill person' as
contemplated by Section 3(4)(a) of the
MTP Act.
31. As mentioned earlier, in the facts
before us the victim has not given
consent for the termination of
pregnancy. We cannot permit a
dilution of this requirement of consent
since the same would amount to an
arbitrary and unreasonable restriction
on the reproductive rights of the
victim. We must also be mindful of the
fact that any dilution of the
requirement of consent contemplated
by Section 3(4)(b) of the MTP Act is
liable to be misused in a society where
sex-selective abortion is a pervasive
social evil.
58. In our considered opinion, the
language of the MTP Act clearly
respects the personal autonomy of
mentally retarded persons who are
above the age of majority. Since none
of the other statutory conditions have
been met in this case, it is amply clear
that we cannot permit a dilution of the
requirement of consent for proceeding
with a termination of pregnancy. We
have also reasoned that proceeding
with an abortion at such a late stage
(19-20 weeks of gestation period)
poses significant risks to the physical
health of the victim.
In the present case, the petitioner understands what
pregnancy is. She has consented for abortion. The medical
opinion is in her favour. She does not want to raise the child
of a rapist and, therefore, the relief prayed for in the relief
clause is granted to the petitioner directing the respondents
to carry out the process of abortion immediately. The
present case also reflects a very sorry stage of affairs in the
society and the situation is quite alarming. The petitioner, a
mother of 3 children, was forced into prostitution by
someone as alleged and for months together, as stated by
her, she was raped, she was sold and now she wants to abort
the child. She appears to be a shattered lady and now she is
in Jail for allegedly committing murder of a person who has
forced her into prostitution.
This Court has not expressed any opinion in the matter
of the criminal case which has been registered against the
petitioner, but at the same time, as the law provides for free
legal aid / assistance to such persons, the respondents are
directed to ensure that the petitioner is provided all possible
legal – aid to defend herself irrespective of the charge of
murder which she is facing. It is needless to mention that
any observation made by this court in the present case will
-
not prejudice any case and will not come in way of the trial
court in any matter whether it is pending against the
petitioner or whether it has been filed at the behest of the
petitioner against any other individual.
Mr. Piyush Mathur, learned senior counsel, who has
been appointed as amicus curiae, at this stage, has argued
before this Court that the DNA Sample of the foetus be
preserved as the petitioner is alleging forced sex / rape and
he is not aware of the fact whether any report of rape or
forced sex has been lodged against someone by the
petitioner or not and, therefore, the DNA samples be
preserved in the case of the foetus. The suggestion made by
the learned amicus curiae appears to be reasonable and,
therefore, the authorities are directed that after conducting
the abortion, they will do the needful for keeping the DNA
samples of the foetus and shall also keep the same in a seal
cover as per the prescribed procedure.
In the result, the writ petition is allowed. The petitioner
is granted permission to abort the child keeping in view the
statutory provisions as contained under The Medical
Termination of Pregnancy Act, 1971. The Superintendent of
District Jail, Indore is directed to admit the petitioner in
M.Y. Hospital, Indore for terminating the pregnancy. It is
needless to mention that the petitioner shall be provided
with all medical assistance and care after the pregnancy is
terminated, she will again be provided with all medical
assistance by the respondent State. It is needless to mention
that the Superintendent of District Jail, Indore after the
pregnancy is terminated shall file status report to the
Principal Registrar of this Court and for a further period 6
months, he will file a monthly status report in respect of
health of the petitioner.
With the aforesaid the writ petition is allowed. No
order as to costs.
(S. C. SHARMA)
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