Guidelines of High court in respect of termination of pregnancy of Rape victim

In view of the foregoing discussion, interim directions are

issued as under:

(i) Principal Secretary, Department of Health & Family

Welfare, Government of Haryana, shall deposit a sum

of `5000/- per month in the account of petitioner No.

1 for food and medical expenses. The deposit shall be

made on or before 7th of each calendar month w.e.f.

01.06.2016 for one year.

(ii) The Chief Medical Officer, Nuh and the Medical

Superintendent of Civil Hospital-cum-SHKM

Government Medical College Malhar shall depute a

senior obstetrician/ gynecologist to examine petitioner

No. 1 from time to time and give proper advice in the

matter of medicine and due medical facilities of

health professionals i.e nurses etc.. This will be in

addition to the help and assistance to be provided to

Petitioner No. 1 by AIIMS, New Delhi.

(iii) The Medical Superintendent of AIIMS shall also

provide the adequate medical help as aforesaid to

victim-petitioner No. 1.

(iv) Whenever Petitioner No. 1 visits for medical checkup

and counselling , the concerned doctors shall deal

with her sympathetically. The counselling shall be

provided to her regularly as per the mental health of

petitioner No. 1 and the requirement for the same in

view of the alleged threat of suicide by her.

(v) The State of Haryana shall also deposit an amount of

Rs.5 lakh in fixed deposit in the name of petitioner

No. 1 as damages and expenses as the officers at the

helm of affairs failed to act with due diligence. This

amount will be in addition to the other claim of

petitioner No. 1 under the provisions of law. The said

amount shall remain in fixed deposit in a scheduled

Bank; however, the interest accruing on it can be paid

to petitioner No.1 only after 31.06.2017, by the

concerned bank, if demanded by petitioner No. 1.

(vi) It is clarified that the amounts awarded by this Court

are in addition to the entitlement as per provisions of

Code of Criminal Procedure.

(vii) This Court has already issued directions in various

cases as Kavita, Vijender and Bashir Khan (supra),

referred in the earlier part of the judgement. It is

emphasized that each of those directions should also

be followed in letter and spirit.

(viii) The Central Government is advised to consider

making amendments to the Medical Termination Of

Pregnancy Act, 1971 and clarify in so many words to

the doctors that they will not be unnecessarily

prosecuted if they act in accordance with the rules in

good faith to save the life of a victim of rape or to

prevent grave injury to her physical and mental

health. Termination of pregnancy in good faith which

results from crime is otherwise permitted under the

provision of MTP Act.

(ix) Seminars for investigating agencies, doctors, lawyers

and judicial officers who have occasion to deal with

such cases should be organized periodically. They

should be sensitized about the urgency and immediate

need of counselling and other medical assistance

required to a rape victim. The respective departments

having control over these agencies should regularly

update its officers/officials about the legal provisions

and settled law on the subject.

(x) The Refresher Courses for the members of the

Superior and Subordinate Judiciary of the States of

Punjab, Haryana and U.T.Chandigarh be held to make

them aware of the provisions of the MTP Act and

urgency in such cases. In order to ensure that if any

case is brought before the gestation period reaches 20

weeks, victim be informed about her choice to seek

termination at the earliest.

(xi) The copy of this judgment be sent to the offices of

Advocate Generals of Punjab and Haryana and the

Standing Counsel for U.T., in order to ensure that if,

and when, any case is brought to Court for passing of

any orders under the MTP Act, the said case can be

determined on the first day itself by sending the

woman to the medical board immediately for quick

action if possible under the provisions of law. The

need for filing of reply should not arise so as to avoid

wasting of precious time available with the pregnant

victim.

(xii) The Registry is directed not to mention the name of

rape victim in the cause list, judgment order, but they

may refer to her name by mentioning the first

alphabet of her name.

(xiii) The Counsel representing the victim of rape are also

requested not to disclose the identity of victim in the

petition in the head-note of petition. They may also

write the first alphabet of name of the victim and may

quote 'name withheld' in particulars.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

 CWP-6733-2016

 Date of Decision: 30.05.2016

R (name withheld) and another

 ... Petitioner(s)

Versus

State of Haryana and others

 ... Respondent(s)

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

 DHALIWAL

1. In this judgment, a complex set of issues connected with

different fields of law arise for consideration. The issue, although,

relates to the medical termination of pregnancy of a minor girl beyond

the legally permissible gestation period of 20 weeks but other issues

such as right to life, health and abortion (which includes victim-mother

and the foetus), human rights and issues of social and religious concerns

are involved. The main focus will be on the issue of late termination of

pregnancy resulting from the alleged rape and a brief reference to other

ancillary issues which are intricately connected with this complex issue

will also be made.

2. In this judgment, full name of petitioner No.1 has been

withheld and she has been referred to as 'R'.

3. Instant writ petition has been filed under Articles 226/227 of

the Constitution of India for issuance of a writ in the nature of

mandamus directing respondent No.7 to terminate the pregnancy of the

child in the womb of petitioner No.1, a minor girl, who is an alleged

victim of rape, as the continuation of pregnancy would cause grave

injury to her and would also be unsafe and dangerous for the life of the

petitioner-victim. Further prayer is for issuance of a writ in the nature of

mandamus directing respondent Nos.1 to 3 to conduct a fair and

impartial investigation in FIR No. 20 dated 04.03.2016, under Section

365 IPC, registered at Police Station Women, Mewat and to hand over

the investigation of the case to some higher officials, not below the rank

of Superintendent of Police, the life and liberty of the petitioners be also

protected and to take legal action against the erring police officials. It is

further prayed that during the pendency of the present writ petition,

petitioner-victim may be permitted to terminate the pregnancy and

directions be issued to respondent no. 7. i.e. Civil Surgeon, Civil

Hospital-cum-Government Medical College, SHK Mewat Government

Medical College, District Mewat or any other Specialized Government

Hospital for providing all medical help to petitioner No.1-victim and

direction may be issued to the hospital authorities to preserve the fetus,

which would enable the investigating agency for DNA test in order to

prove the commission of offence of alleged rape by the accused person.

FACTS

4. Registration of FIR by petitioner No.2

 Petitioner No. 2-father of petitioner No.1, submitted a complaint

to the Women Police Station, Nuh that his daughter aged about 14/15

years was with her friend Urmila, daughter of Amar Chand on

29.02.2016, at about 9.00 P.M. in his house as her house is near to his

house. Petitioner No. 2 and other family members also went to sleep. In

the morning, when they woke up, his daughter was not in the house.

They searched for her, but could not find her anywhere. They also

inquired about her from Urmila and her mother, but they did not get any

information regarding whereabouts of their daughter from them. They

had suspicion that she had been got kidnapped by Urmila. On the basis

of complaint made by petitioner No. 2, an FIR No.20 dated 04.03.2016,

under Section 365 of IPC was registered at Women Police Station at

Nuh.

5. Police Proceedings and medico-legal examination

Petitioner No. 1 was recovered on 04.03.2016. She was

produced before the Medical Officer at Government Medical College,

Nalhar, Nuh. Petitioner No. 1 declined to get herself medico-legally

examined. Thereafter she was produced before the Illaqa Magistrate on

05.04.2016, her statement was recorded under Section 164 of Code of

Criminal Procedure in which petitioner No.1 stated that she had gone

with accused Mubarik at her own sweet will. She was not kidnapped

and/or allured.

6. Averments in writ petition

Petitioner No.2 has filed this writ petition being father and

natural guardian of petitioner No. 1. It is averred that the Investigating

Officer in connivance with the accused put pressure upon minor girl and

got her statement recorded under threat before the Judicial Magistrate 1st

Class, Mewat. The Court sent her (minor) to Nari Niketan, Karnal.

Petitioner No. 1 while staying in Nari Niketan sent an application to the

Judicial Magistrate 1st Class, Mewat showing her willingness to stay

with her parents. On 09.03.2016, petitioner no. 2 filed an application for

issuance of production warrant of petitioner No.1 before the Court, who

ordered handing over her custody to her parents. On 10.03.2016,

petitioner No.1 narrated the entire story to her parents and disclosed that

respondent No.8 had committed rape upon her in October, 2015 by

putting her under threat. He also prepared her obscene video-clip and

under the garb of the same, he exploited her and committed rape upon

her many a time. Petitioner No.1 was forcibly kidnapped on 29.02.2016.

The alleged offences were committed by accused-respondent No. 8 and

his associates. Thereafter, on 14.03.2016, petitioner No.2 filed an

application before the Judicial Magistrate Ist Class, Mewat for issuance

of direction to the investigating officer/SHO for conducting medico-

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legal examination of petitioner No.1. On 16.03.2016, the Judicial

Magistrate Ist Class directed the investigating officer to get petitioner

No.1 medico-legally examined. She was examined at Civil Hospitalcum-SHKM

Government Medical College, Nalhar. The medical

examination of petitioner No.1 was not conducted properly and no

pregnancy test was conducted in spite of the fact that the doctor of Civil

Hospital-cum-SHKM Government Medical College, Nalhar was made

aware of the alleged rape committed upon petitioner No.1. The

investigating officer also did not act in a fair manner. The petitioners

met the senior police officials but no one paid any heed to their

grievance. Representations were also given to Director General of Police

Haryana and Inspector General of police for protecting the life of

petitioners and their family members at the hands of the accused and his

associates.

7. Written statement

In response to notice of motion, respondent Nos.1 to 5 filed

written statement admitting the fact that the petitioner-victim is a minor.

It is averred that the victim was recovered by the police of P.S. Punhana

and was taken to Civil Hospital-cum-SHKM Government Medical

College, Nalhar for medico-legal examination. Initially, she refused to

get herself medico-legally examined. She was produced before the

Court and her statement under Section 164 Cr.P.C. was recorded wherein

she stated that she had gone with accused-Mubarik at her own sweet will

and was not kidnapped and allured. She refused to accompany her

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parents and thereafter the Court sent her to Nari Niketan. Other

averments made in writ petition have been denied.

8. I have heard the learned counsel for the parties and perused

the record.

9. Submissions made by learned Counsel for petitioners:

Mr. Gopal Sharma, learned counsel for the petitioners

vehemently contended that the police officials have not discharged their

duty with due diligence and faithfully, rather they connived with the

accused persons. The investigating officer helped the accused out of

way and her statement under Section 164 Cr.P.C. was got recorded under

threat. Petitioner No.1 was not got medico-legally examined and her

signatures were obtained to show that she had declined to get herself

medico-legally examined. He further contended that she was always

ready and willing for her medico-legal examination and wanted

termination of her pregnancy.

10. Submissions made by Ms Tanu Bedi, Advocate Amicus

 Curiae :

10.1 Ms. Tanu Bedi, amicus curiae vehemently contended that

petitioner No. 1 is the sole decision maker on the basis of the medicallyinformed

consent either to terminate the pregnancy or to continue with

the same. As there cannot be any termination of pregnancy without the

express and voluntary consent of the woman, in the same manner the

pregnancy should not be forced to be continued without her voluntary

consent, especially when the facts of the case show that the very act

which led to the conception was an involuntary act. No doubt, the

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protection of right of unborn child is an obligation cast upon the State

under the Constitutional provisions, yet in view of the unambiguous

language of Section 5 of the Medical Termination of Pregnancy Act,

1971 (for brevity, 'MTP Act'), the conflict between the right to life of

mother and the right to life of unborn child would yield in favour of the

right to life of mother. To force a woman to continue with the pregnancy

which she does not want to continue is an infringement of right to

privacy and dignity of the woman as well as an infringement of the right

to a healthy and dignified life of the nascent life in her womb.

10.2 Learned amicus curiae submitted further that the facts of the

present case reveal that the choice available to the Petitioner No. 1 under

the provisions of the law was snatched away from her due to the

ignorance exhibited by the medical experts, lawyers and investigating

officers at the relevant stages. Petitioner No. 1 is beseeching to terminate

the pregnancy, she does not want to carry, but she is being denied this

because of a helpless exercise only on account of gestation period of

pregnancy running beyond 20 weeks. Learned amicus curiae further

contended that in the last one year, two reported judicial

pronouncements, one by the Hon’ble Supreme Court and another by the

Hon’ble Gujarat High Court, lifted the bar contained under Section 3 of

MTP Act in the similar circumstances but in the present case the same

could not be done as the required assistance and co-operation did not

come forth from the medical experts as happened in the two cases came

before the Hon'ble Supreme Court and Hon'ble Gujarat High Court.

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10.3 Ms. Bedi further submitted that she has personally talked to

petitioner No.1 in camera and has placed on record of this court the

conversation in compact disc., she had with petitioner No.1. The law

permits abortion legally if the pregnancy is the result of crime. Ms. Bedi

made reference to Sections 3 to 5 of the MTP Act. Section 3 of the Act

requires

a). permission of one doctor if pregnancy is less than 12 weeks

and

b). permission of minimum of 2 doctors if the pregnancy is

more than 12 weeks but less than 20 weeks gestation period;

to opine and carry out termination of pregnancy. Section 5 of the MTP

Act carves out an exception for carrying out termination of pregnancy

required immediately to save the life of a pregnant woman irrespective

of the length of pregnancy.

10.4 Learned amicus curiae made reference to the provisions of

MTP Act that registered medical officers are required to understand the

spirit behind the provisions of MTP Act lifting the embargo on

termination of pregnancy beyond 20 weeks in cases as contemplated

under Section 5 of the MTP Act. The opinion mentioned therein can be

formed by a single doctor also. She further contended that expertise of

the doctors is to take precedence over every thing which includes the

judgment of the Court. She contended that the provisions of MTP Act do

not contemplate authorization or approval from any court. In fact,

whenever a matter concerning medical termination of pregnancy on any

ground whatsoever comes before the courts, the courts have invariably

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based their decision on the opinion of the medical board. There is not a

single instance found where the Courts have given directions against the

conclusions drawn by the medical board. In fact, the very exercise of

approaching the courts in such situations results in unnecessary wastage

of time and, many a times, renders the remedy sought unavailable to the

victim.

10.5 In support of her contentions, Ms. Bedi has relied upon

following judgments:

(i) Roe vs. Wade 35 L Ed 2d 147 : 410 US 113

(1973);

(ii) Suchita Srivastava and another vs. Chandigarh

Administration AIR 2010 SC 235;

(iii) Kavita vs. State of Haryana and others 2015 (2)

RCR (Criminal) 606 (P & H);

(iv) Minor daughter of Sh. Rudharpal vs. State of

Haryana and others 2015 (4) R.C.R. (Criminal) 423.

(v) Bashir Khan vs. State of Punjab and another

2014 (4) R.C.R. (Criminal) 148.

(vi) Vijender vs. State of Haryana and others 2015 (1)

R.C.R. (Civil) 163.

(vii) Chandrakant Jayantilal Suthar & another vs.

 State of Gujarat 2015 (6) R.C.R. (Criminal) 83.

(viii) Bhavikaben vs. State of Gujarat, Criminal

Application No.1155 of 2016, decided on 19.02.2016;

(ix) D. Rajeswari vs. State of T.N and others 1996 Crl.

 L.J. 3795;

(x) Dr. Nikhil D. Dattar, Gynaecologist, Mr. X and

Mrs. Y being wife of Mr. X Vs. Union of India

(UOI) and State of Maharashtra 2008(110)

BOMLR3293

(xi) Ashaben vs. State of Gujarat & Others 2015 (4)

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 Crimes 1

(xii) V. Krishnan vs. G. Rajan alias Madipu Rajan and

the Inspector of Police (Law and Order)

MANU/TN/0279/1993;

(xiii) Articles with regard to laws on medical termination of

pregnancy worldwide.

10.6 Ms. Bedi further vehemently contended that the State of

Haryana, investigating officer and the doctors of Civil Hospital-cumSHKM

Government Medical College, Nalhar, Nuh are responsible for

wastage of time as a result of which statutory period for termination of

pregnancy under the MTP Act has exceeded. Petitioner No. 1 has told

the learned amicus curiae that she was under pressure as a result of

which she refused to get herself medically examined at the first stage,

when she was recovered and produced before the doctor. Subsequently

by moving an application on 14.03.2016, the victim sought to get herself

examined by medical officer for the alleged crime of rape. Petitioner No.

1 was examined by the Medical Officer on 16.03.2016, but there is no

reference to the pregnancy of petitioner No.1 in the MLR and even no

tests were conducted to ascertain the pregnancy. In fact, a bare perusal of

this document will show that the medical examination was conducted in

the most irresponsible manner. The precious time was lost due to delay.

As the pregnancy is the result of rape and petitioner No. 1 is anguished

due to such pregnancy, the termination could have been done by the

medical officers of Civil Hospital-cum-SHKM Government Medical

College, Nalhar, Nuh. No permission was required from the court and

only consent of the minor-victim and her guardian, as required under

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law, was needed.

10.7 Ms. Bedi has relied upon Bashir Khan's case (supra) and

Vijender's case (supra) wherein the issue of wastage of time in

approaching the court has been examined and the importance of consent

of minor with regard to termination of her pregnancy is mentioned. For

the purpose of requirement of minor’s consent in addition to the consent

of legal guardians, the reliance is also placed on the judgment of the

Division Bench of the Madras High Court titled as V. Krishnan's case

(supra).

10.8 Ms. Tanu Bedi further contended that the authorities at the

relevant stages, be they police officers, medical officers, lawyers or the

courts, should be well-versed with the provisions of law. As the time is

the essence of availing the remedy of medical termination of pregnancy

in the exigent situations, the importance of availing the same should be

communicated to the victim and her family members immediately. It was

submitted that the lawyers must eschew from filing the unnecessary

applications for seeking medical termination of pregnancy within 20

weeks of gestation period and should guide their clients accordingly. It

was further argued by her that as mentioned in the judgments passed by

this Court in the case of case Bashir Khan's case (supra) and Vijender's

case (supra), the judicial officers should be proactive and in the

eventuality of filing of such applications instead of technical dismissal of

the same, plea of the woman should be forwarded to the medical board

for an appropriate action immediately. Even though the provisions of

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law warrant the consent of legal guardian in cases of minority and/or

mental illness of the woman, but still efforts should be made to give due

regard to the real desire and want of the woman who is carrying the

pregnancy. The general guidelines are required to be issued by this court

to all the concerned in such cases for the submissions made hereinabove.

10.9 Ms. Tanu Bedi made reference to the conversation which

she had with the victim. During the conversation, the victim vehemently

insisted on committing suicide in-case pregnancy is not terminated. The

victim’s unequivocal rejection of the child in her womb, and her threat to

commit suicide if she’s forced to carry on with the pregnancy is a serious

issue. The peculiar situation warrants the consideration of the same

under the language of the statute, namely MTP Act, as contained in

Section 5 of the Act which unambiguously gives power to the doctor to

carry out medical termination of pregnancy, unfettered by any legal bars,

to save the life of victim/woman.

10.10 Ms. Bedi further made reference to the orders dated

23.04.2016, 02.05.2016 and 13.05.2016 and report of the Medical Board

of the Civil Hospital-cum-SHKM Government Medical College, Nalhar,

Nuh dated 26.04.2016 and the reports of the Medical Board of

PGIMER, Chandigarh, dated 04.05.2016 and 14.05.2016. It was

submitted by Ms. Bedi that the juxtaposition of the orders of the Hon’ble

Court with the reports of the medical boards would show an unfortunate

absence of required ingenuity and gumption on the part of the medical

experts to understand the spirit and import of the order in the

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background of peculiar circumstances in which they were passed. The

learned amicus curiae has implored to refer the matter to AIIMS, New

Delhi for an opinion by the experts in the field in the nature of

possibility of termination in view of threat of suicide by the victim; the

possibility of premature delivery as the foetus is reportedly stated to be

viable (reliance was placed on a news item which showed that recently

in Ireland, a country which bans abortion completely, a teenager

pregnant due to rape, who could not be allowed permission for abortion,

was helped by the doctors during the 26th week of gestation period by

delivering the child prematurely through C-Section, and relieving her of

the burden of carrying the pregnancy to its full term). She has further

drawn the attention of the court to the laws relating to medical

termination of pregnancy in other countries and submitted that in

countries like Canada, China, and North Korea, there is no upper limit of

gestation period within which the termination of pregnancy can be

legally sought by a woman. It was also submitted that in the eventuality

of both the options being ruled out by the team of medical experts, the

victim should be counselled regularly, in addition to giving her the best

pre-natal care. If it is found by the experts that in any circumstance,

petitioner No. 1 is not ready to keep the child with her after delivery, the

efforts to give the child in adoption should begin at the earliest by the

concerned adoption agencies in active co-operation with the medical

authorities under whose care petitioner No. 1 may remain till her

delivery. Ms. Bedi further submitted that the conditions in various Nari

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Niketans are very pathetic as the same act like jail and therefore, in

addition to directions for improvement of such places, it is imperative

that the sending of rape victim and woman to Nari Niketan under judicial

orders should be the last resort and the courts should explore other

options where the women in need of shelter and protection can be sent.

Reference has also been made to the issue of ethics and law in such

cases.

11. Submissions made by learned Counsel for the State:

Learned State counsel vehemently contended that the

pregnancy of the victim was already more than 21 weeks, when writ

petition was filed. Petitioner No. 1 refused to get herself medico-legally

examined and gave in writing as a result of which doctor at the Civil

Hospital-cum-SHKM Government Medical College, Nalhar could not

examine her. Petitioner No.1 made a statement under Section 164

Cr.P.C. that she had voluntarily gone with accused-Mubarik at her sweet

will, she was not kidnapped nor allured. The State has done its duty and

had recovered the girl. The police is likely to apprehend the culprits and

investigation is in progress.

12. Submissions by learned Counsel for Respondent Nos.9

and 10:

Learned counsel for respondent Nos. 9 and 10 vehemently

contended that they have no role in the present episode. They are being

harassed by the investigating officer unnecessarily. He also sought

transfer of investigation to a senior officer of the police not below the

rank of Deputy Superintendent of Police.

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13. I have given my anxious thoughtful consideration to the

arguments raised by the learned counsel for the parties.

14. Petitioners filed this petition on 06.04.2016. However, due

to objection raised by the Registry, it came up for hearing before this

Court on 08.04.2016.

15. During the pendency of this writ petition, medical reports

were received from the Civil Hospital-cum-SHKM Govt. Medical

College, Nalhar and PGIMER, Chandigarh.

16. On 23.04.2016, this Court passed the following order:

“Registry has reported that respondent No.8, 11 and

12 have been duly served and respondent No.6 is on

training at Police Academy, Madhuban.

On filing of correct address of respondent

No.6, notice be issued to her for 28.04.2016.

Dasti only.

Petitioner No.1 will be at liberty to appear on

25.04.2016 before respondent No.7-Civil Surgeon,

Mewat, who shall appoint a Board of Doctors to

examine petitioner No.1 and submit report on the

date fixed as to whether pregnancy can be terminated

without any harm to the life of petitioner No.1.”

17. In compliance of the order dated 23.04.2016, the ‘R’ was

examined by the board of doctors and her clinical and radiological

(Ultrasonography) examination was done on 26.04.2016. The report was

received in court in a sealed cover and same was opened in the court.

The relevant extract of the report reads as under:

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“Clinical Findings: Primigravida at about 22 weeks

of pregnancy with fetal movements present.

USG findings: Single live fetus, 22 weeks 2 days

Gestational age as per BPD (Bi-parietal diameter)

and 22 weeks as per FL (Femur Length).

Opinion:

After clinical and radiological examination, the

board is of opinion that “termination of pregnancy at

this stage, that is 22 weeks of gestation, will be

harmful to the life of patient (name withheld sic.).

Moreover, as per medical termination of

Pregnancy Act, 1971, the termination of pregnancy

can be carried out only up to 20 weeks of

pregnancy.”

18. On 28.04.2016, learned counsel for the petitioners sought

time to search law on the subject that in spite of 22 weeks pregnancy, it

can be terminated without any harm to petitioner No. 1 and case was

adjourned to 02.05.2016.

19. On 02.05.2016, this Court passed the following order:

“Learned counsel for the petitioners contends

that petitioner No.1 is a minor girl, her pregnancy is

the result of alleged rape. The prayer in this petition

is for termination of pregnancy.

Vide order dated 23.04.2016 petitioner No.1

was referred to Civil Surgeon, Mewat for opinion

whether pregnancy could be terminated without any

harm to the girl. As per report dated 26.04.2016 the

team of doctors of SHKM, Government Medical

College, Nalhar, Nuh has opined that the pregnancy

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is of 22 weeks and termination thereof at this stage

would be harmful to the girl.

Today, learned counsel for the petitioners

relies upon the judgment of the Gujarat High Court

dated 23.07.2015 passed in Chandrakant Jayantilal

Suthar v. State of Gujarat and the judgment of the

Hon'ble Supreme Court in Chandrakant Jayantilal

Suthar & another v. State of Gujarat, 2015(6) R.C.R.

(Criminal) 83 arising from the aforementioned

judgment of the Gujarat High Court, to contend that

it is also to be seen whether continuance of

pregnancy would be harmful to the victim girl.

Learned counsel for the petitioners prays that second

opinion with regard to termination of pregnancy of

petitioner No.1 may be got from the PGIMER

Chandigarh as the PGIMER is a super-speciality

hospital.

Keeping in view the above judgments and the

peculiar facts and circumstances of the case, I direct

that petitioner No.1 should be examined by three

senior-most Gynaecologists, a Clinical Psychologist

and a Psychiatrist of the PGIMER Chandigarh. The

said team of doctors shall examine petitioner No.1

and shall decide whether there is a serious threat to

her life if pregnancy is terminated and will it have

adverse affect upon the psychology of petitioner No.1

if the pregnancy is not terminated. Petitioner No.1 is

directed to appear before the Head of the Department

of Obstetrics and Gynaecology, PGIMER

Chandigarh, on 03.05.2016 at 10.00 a.m. Head of the

Department of Obstetrics and Gynaecology in

consultation with the Director of the PGIMER shall

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constitute a Board of doctors consisting of three

Gynaecologists, one Psychologist and one

Psychiatrist . The Board of doctors shall submit its

report to this Court forthwith. If the Board decides to

carry out termination of pregnancy, it can be done

without further orders from this Court and they can

proceed for termination of the pregnancy. If the

termination is carried out then necessary tissues of

the fetus shall be preserved for DNA

examination/identification. If there is no unanimity in

the opinion of the doctors, the view of the majority of

the doctors shall prevail. To determine the age of

petitioner No.1, ossification test or any other test may

also be conducted.

Learned counsel for the State is not in a

position to assist the Court in this matter. Advocate

General, Haryana is directed to be present in Court

on the next date or depute some competent officer to

assist the Court as larger issues are involved in this

petition.

Adjourned to 4.5.2016.

Copy of the order alongwith a copy of report

dated 26.04.2016 be sent to the Director, PGIMER,

Chandigarh/concerned Head of the Department at

PGIMER by FAX. A copy of the order be also

supplied to the learned counsel for the petitioners

under signatures of the Bench Secretary.”

20. In pursuance of the order dated 02.05.2016, PGIMER

Chandigarh Centre sent its report which reads as under:

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“Report of the Medical Board

A meeting of the medical board constituted on

the directions of Justice Paramjeet Singh Dhaliwal,

Hon'ble Punjab & Haryana High Court, Chandigarh

was held on 03.05.2016 at 4.00 p.m. in the Committee

Room of MS Office under the Chairpersonship of

Prof. Vanita Suri, HOD Obstt. Gynaecology.

Following members attended the medical board

meeting:

1. Prof. Vanita Jain, Deptt. Of Obstt. & Gynae. Member

2. Prof. Jaswinder Kalra, Deptt. Of Obstt. & Gynae. Member

3. Prof. D. Basu, Deptt. Of Psychiatry Member

4. Prof. Adarsh Kohli, Deptt. Of Psychiatry Member

5. Dr. S.P.Mandal, Assoc. Prof. Deptt. Forensic Medicine Member

6. Dr. Tulika Singh, Assoc. Prof. Deptt. Of Radiodiagnosis Member

7. Dr. Pankaj Arora, Asstt. Prof. Deptt. Of Hospital Admn. Member

 The medical board was briefed that the patient

(name withheld) daughter of Jamshed resident of

Punhana presented herself at PGIMER, Chandigarh

on 3.5.2016 at 10.00 a.m. The patient was examined

in the Gynae. OPD by Prof. Vanita Suri and Prof.

Vanita Jain. The physical examination reveals a

pregnant female with gestation age 22 to 24 weeks.

Ultrasonography was done in the Radiodiagnsis

Department which reveals gestation age to be 23

weeks and 2 days. X-ray of wrist and elbow of the

patient were taken to determine the bone age.

The psychiatric assessment was carried out by

Prof. D. Basu and Prof. Adarsh Kohli.

According to the MTP Act 1971, medical

termination of pregnancy can be carried out up to 20

weeks of pregnancy with the opinion of two

registered medical practitioners. The termination of

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pregnancy at 23 weeks of gestation carries usual risk

as per the gestational age.

The Board after going through the physical

examination, radiological examination, psychiatric

and psychological examination is on the opinion:

1. The bone age of the patient 'R' (name withheld)

is 18 to 20 years as per the X-ray examination.

2. The gestational age of the pregnancy is more

than 20 weeks (23 weeks) as per the

ultrasonography examination.

3. The termination of pregnancy cannot be

carried out as per the provisions of MTP Act

1971.

4. There is possibility of harm to the patient due

to social and emotional consequences of

continuation of pregnancy.”

21. On 05.05.2016, Ms Tanu Bedi, Advocate was appointed as

amicus curiae to assist the court and case was adjourned to 06.05.2016.

On that day, the case was adjourned to 10.05.2016.

22. On 10.05.2016, amicus curiae submitted that she wanted to

personally talk to petitioner No. 1. Petitioner No. 1 came on 13.05.2016

and Ms. Tanu Bedi talked to her in camera and informed the court,

relevant reference to that has been in the order dated 13.05.2016 which

reads as under:

“In pursuance of order dated 10.05.2016,

petitioner No.1, namely R is present in Court. Ms.

Tanu Bedi, Amicus Curiae has personally talked to

petitioner No.1 at length and has informed the Court

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about the psychology of petitioner No.1 who is

inclined to commit suicide if the pregnancy is not

terminated. Learned Amicus Curiae has made

reference to the report of the PGIMER wherein it is

mentioned that there is possibility of harm to the

patient due to social and emotional consequences of

continuation of pregnancy. Learned Amicus Curiae

made further reference to the judgment of Gujarat

High Court in Special Criminal Application No.1155

of 2016 titled 'Bhavikaben v. State of Gujarat'

decided on 19.02.2016. Learned Amicus Curiae

argued that opinion of the Board is only to the effect

that the Medical Termination of Pregnancy Act, 1971

(for short 'MTP Act') does not provide for termination

past 20 weeks of pregnancy. The Board should reexamine

that even though the MTP Act does not

permit termination of pregnancy, whether

termination at this stage is possible and such

termination will not affect petitioner No.1 in any

manner, including physically and psychologically.

Learned Amicus Curiae also made reference to

Section 5 of the MTP Act, which reads as under: -

 “5. Sections 3 and 4 when not to apply.- (1)

The provisions of Sec.4 and so much of the

provisions of sub-section (2) of Sec. 3 as relate

to the length of the pregnancy and the opinion

of not less than two registered medical

practioner, 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

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not a registered medical practitioner shall be

an offence punishable under that Code, and

that Code shall, to this extent, stand modified.”

In the light of above, the Board should reassess

the termination of pregnancy and if an opinion

favouring termination is formed then the Board may

proceed further for termination of the pregnancy

without any further orders from this Court. The

Board should consider in an holistic sense the matter,

including the mental state of petitioner No.1. The

aspect that petitioner No.1 has told the learned

Amicus Curiae that in case the pregnancy is not

terminated, she may commit suicide, should also be

taken into consideration.

Petitioner No.1 is directed to appear before the

same Board of doctors constituted earlier by

PGIMER on 14.05.2016. In case some member of the

earlier constituted Board is not available, same may

be replaced by a Doctor of the relevant department.

Report on all the aspects which have been dealt with

by the Board earlier and to be dealt now, be sent to

this Court confidentially in a sealed cover.

Adjourned to 16.5.2016.

Copy of this order alongwith a copy of

judgment of Gujarat High Court in Bhavikaben

(supra) and a copy of earlier opinion dated

03.05.2016 be sent to the Director, PGIMER,

Chandigarh/concerned Head of the Department at

PGIMER by FAX. A copy of the order be also

supplied to the learned counsel for the petitioners

under signatures of the Bench Secretary.”

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23. Thereafter, a report dated 14.05.2016 was also received

from the PGIMER, Chandigarh which reads as under:

“ Report of the Medical Board

A meeting of the medical board constituted on

the directions of Justice Paramjeet Singh Dhaliwal,

Hon'ble Punjab & Haryana High Court, Chandigarh

was held on 14.05.2016 at 12.00 noon in the

Committee Room of MS Office under the

Chairpersonship of Prof. Vanita Suri, HOD Obstt.

Gynaecology. Following members attended the

medical board meeting:

1. Prof. Vanita Jain, Deptt. Of Obstt. & Gynae. Member

2. Prof. Jaswinder Kalra, Deptt. Of Obstt. & Gynae. Member

3. Prof. Adarsh Kohli, Deptt. Of Psychiatry Member

4. Dr. S.P.Mandal, Assoc. Prof. Deptt. Forensic Medicine Member

5. Dr. Tulika singh, Assoc. Prof. Deptt. Of Radiodiagnosis Member

6. Dr. Pankaj Arora, Asstt. Prof. Deptt. Of Hospital Admn. Convener

Prof. D. Basu, Deptt. Of Psychiatry could not attend

the meeting.

The members of the board pursued the

directions of the Punjab & Haryana High Court. The

board observed that the previous meeting of the

board was held on 3.5.2016 at which time it was

determined through ultrasonography that gestation is

of 23 weeks and 2 days. As on 14.05.2016, the

gestation age of the foetus would be 25 weeks.

Considering the gestational age has attained the age

of viability (more than 24 weeks) implying that the

pregnancy could not be terminated without harming

the new born child. In addition this will have severe

ethical considerations because the foetus is viable.

The members were also of the opinion that gestation

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related risk has further increased. If the delivery is

conducted at this stage, the chances of child being

born alive are there and the long term complications

of premature birth for the surviving child will have to

be weighed. Hence the board was of the opinion that

the termination of pregnancy should not be carried

out at this stage.”

24. Relevant Provisions of Law:

1. Constitution of India {Articles 21, 39(e), 39 (f), 41, 42, 47 and

 51-A(e)}

2. Medical Termination of Pregnancy Act, 1971 (Sections 3, 4 and 5)

3. Code of Criminal Procedure,1973 (Sections 53-A and 164-A)

4. Indian Penal Code,1860 (Sections 312 to 318)

5. Indian Medical Council (Professional conduct, Etiquette and Ethics)

 Regulations, 2002.

24.1 It would be apposite to reproduce relevant provisions.

Articles, 21, 39 (e), 39 (f), 41, 42 and 47 of the Constitution of India

read as under:

“21. Protection of life and personal liberty. - No person

shall be deprived of his life or personal liberty except

according to procedure established by law.

39. Certain principles of policy to be followed by the

State.- The State shall, in particular, direct its policy

towards securing-

(a) to (d) xxxxx

(e) that the health and strength of workers, men and

women, and the tender age of children are not abused and

that citizens are not forced by economic necessity to enter

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avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities

to develop in a healthy manner and in conditions of

freedom and dignity and that childhood and youth are

protected against exploitation and against moral and

material abandonment.

41. Right to work, to education and to public assistance

in certain cases.—The State shall, within the limits of its

economic capacity and development, make effective

provision for securing the right to work, to education and

to public assistance in cases of unemployment, old age,

sickness and disablement, and in other cases of

undeserved want.

42. Provision for just and humane conditions of work

and maternity relief.—The State shall make provision for

securing just and humane conditions of work and for

maternity relief.

47. Duty of the State to raise the level of nutrition and

the standard of living and to improve public health.—The

State shall regard the raising of the level of nutrition and

the standard of living of its people and the improvement of

public health as among its primary duties and, in

particular, the State shall endeavour to bring about

prohibition of the consumption except for medicinal

purposes of intoxicating drinks and of drugs which are

injurious to health.

51-A. Fundamental duties.- It shall be the duty of every

citizen of India-

(a) to (d) xxxx

(e) to promote harmony and the spirit of common

brotherhood amongst all the people of India transcending

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religious, linguistic and regional or sectional diversities;

to renounce practices derogatory to the dignity of

women.”

24.2 Sections 3, 4 and 5 of MTP Act read as under:

"Section 3 : When pregnancies may be terminated by

 registered medical practitioners

(1) Notwithstanding anything contained in the Indian

Penal Code, 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

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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 reasonably 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 3 ["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 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 or a District Level

Committee constituted by that Government with the

Chief Medical Officer or District Health Officer as

the Chairperson of the said Committee :

Provided that the District Level Committee shall consist of

not less than three and not more than five members

including the Chairperson, as the Government may specify

from time to time.

Section 5 : Sections 3 and 4 when not to apply

(1) The provisions of section 4 , and so much of the

provisions of sub-section (2) of section 3 as relate to the

length of the pregnancy and the opinion of not less than two

registered medical practitioners, shall not apply to the

termination of a pregnancy by a registered medical

practitioner in a 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.

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(2) Notwithstanding anything contained in the Indian Penal

Code, 1860 (45 of 1860), the termination of pregnancy by a

person who is not a registered medical practitioner shall be

an offence punishable with rigorous imprisonment for a

term which shall not be less than two years but which may

extend to seven years under that Code, and that Code shall,

to this extent, stand modified.

(3) Whoever terminates any pregnancy in a place other

than that 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.

Explanation 2.-For the purposes of this section, so much of

the provisions of clause (d) of Section 2 as relate to the

possession, by registered medical practitioner, of experience

or training in gynaecology and obstetrics shall not apply."

24.3 Sections 53-A and 164-A of the Code of Criminal Procedure

read as under:

“53-A Examination of person accused of rape by medical

practitioner

1. When a person is arrested on a charge of committing

an offence of rape or an attempt to commit rape and

there are reasonable grounds for believing that an

examination of his person will afford evidence as to

the commission of such offence, it shall be lawful for

a registered medical practitioner employed in a

hospital run by the Government or by a local

authority and in the absence of such a practitioner

within the radius of sixteen kilometers from the place

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where the offence has been committed by any other

registered medical practitioner, acting at the request

of a police officer not below the rank of a subinspector,

and for any person acting in good faith in

his aid and under his direction, to make such an

examination of the arrested person and to use such

force as is reasonably necessary for that purpose.

2. The registered medical practitioner conducting such

examination shall, without delay, examine such

person and prepare a report of his examination

giving the following particulars, namely-\

 (i) the name and address of the accused and of the

person by whom he was brought,

 (ii) the age of the accused,

 (iii) marks of injury, if any, on the person of the

accused,

 (iv) the description of material taken from the

person of the accused for DNA profiling, and”.

 (v) other material particulars in reasonable detail.

 (3) The report shall state precisely the reasons for each

 conclusion arrived at.

 (4) The exact time of commencement and completion of

 the examination shall also be noted in the report.

 (5) The registered medical practitioner shall, without

delay, forward the report of the investigating officer,

who shall forward it to the Magistrate referred to in

section 173 as part of the documents referred to in

clause (a) of Sub-Section (5) of that section.”

164 A. Medical examination of the victim of rape.– (1)

Where, during the stage when an offence of committing

rape or attempt to commit rape is under investigation, it is

proposed to get the person of the woman with whom rape is

alleged or attempted to have been committed or attempted,

examined by a medical expert, such examination shall be

conducted by a registered medical practitioner employed in

a hospital run by the Government or a local authority and

in the absence of a such a practitioner, by any other

registered medical practitioner, with the consent of such

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woman or of a person competent to give such consent on

her behalf and such woman shall be sent to such registered

medical practitioner within twenty-four hours from the time

of receiving the information relating to the commission of

such offence.

(2) The registered medical practitioner, to whom such

woman is sent shall, without delay, examine her and

prepare a report of his examination giving the following

particulars, namely:-

(i) the name and address of the woman and of the

person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the

person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the

woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each

conclusion arrived at.

(4) The report shall specifically record that the consent

of the woman or of the person competent to give such

consent on her behalf to such examination had been

obtained.

(5) The exact time of commencement and completion of

the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without

delay forward the report to the investigation officer who

shall forward it to the Magistrate referred to in section 173

as part of the documents referred to in clause (a) of sub-

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section (5) of that section.

(7) Nothing in this section shall be construed as

rendering lawful any examination without the consent of the

woman or of any person competent to give such consent on

her behalf.

Explanation. – For the purposes of this section,

“examination” and “registered medical practitioner” shall

have the same meanings as in section 53”.

24.4 Sections 312 to 318 of the Indian Penal Code read as under:

“312. Causing miscarriage.--Whoever voluntarily causes a

woman with child to miscarry, shall if such miscarriage be

not caused in good faith for the purpose of saving the life of

the woman, be punished with imprisonment of either

description for a term which may extend to three years, or

with fine, or with both; and, if the woman be quick with

child, shall be punished with imprisonment of either

description for a term which may extend to seven years, and

shall also be liable to fine.

Explanation.-A woman who causes herself to miscarry, is

within the meaning of this section.

313. Causing miscarriage without woman's consent.--

Whoever commits the offence defined in the last preceding

section without the consent of the woman, whether the

woman is quick with child or not, shall be punished with

imprisonment for life, or with imprisonment of either

description for a term which may extend to ten years, and

shall also be liable to fine.

314. Death caused by act done with intent to cause

miscarriage.-- Whoever, with intent to cause the

miscarriage of a woman with child, does any act which

causes the death of such woman, shall be punished with

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imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine;

If act done without woman's consent.- And if the act is

done without the consent of the woman, shall be punished

either with imprisonment for life, or with the punishment

above mentioned.

Explanation.-It is not essential to this offence that the

offender should know that the act is likely to cause death.

315. Act done with intent to prevent child being born alive

or to cause it to die after birth.-Whoever before the birth of

any child does any act with the intention of thereby

preventing that child from being born alive or causing it to

die after its birth, and does by such act prevent that child

from being born alive, or causes it to die after its birth,

shall, if such act be not caused in good faith for the purpose

of saving the life of the mother, be punished with

imprisonment of either description for a term which may

extend to ten years, or with fine, or with both.

316. Causing death of quick unborn child by act

amounting to culpable homicide.--Whoever does any act

under such circumstances, that if he thereby caused death

he would be guilty of culpable homicide, and does by such

act cause the death of a quick unborn child, shall be

punished with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to

fine.

317. Exposure and abandonment of child under twelve

years, by parent or person having care of it.--Whoever

being the father or mother of a child under the age of twelve

years, or having the care of such child, shall expose or

leave such child in any place with the intention of wholly

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abandoning such child, shall be punished with

imprisonment of either description for a term which may

extend to seven years, or with fine, or with both.

Explanation.-This section is not intended to prevent the trial

of the offender for murder or culpable homicide, as the case

may be, if the child die in consequence of the exposure.

318. Concealment of birth by secret disposal of dead

body.-- Whoever, by secretly burying or otherwise

disposing of the dead body of a child whether such child die

before or after or during its birth, intentionally conceals or

endeavors to conceal the birth of such child, shall be

punished with imprisonment of either description for a term

which may extend to two years, or with fine, or with both.”

24.5 Chapter 1.1 of the Indian Medical Council (Professional

conduct, Etiquette and Ethics) Regulations, 2002 reads as under:

“B. Duties and responsibilities of the Physician in

general:

1.1 Character of Physician (Doctors with qualification

of MBBS or MBBS with post graduate degree/ diploma or

with equivalent qualification in any medical discipline):

1.1.1 A physician shall uphold the dignity and honour of

his profession.

1.1.2 The prime object of the medical profession is to

render service to humanity; reward or financial gain is a

subordinate consideration. Who- so-ever chooses his

profession, assumes the obligation to conduct himself in

accordance with its ideals. A physician should be an

upright man, instructed in the art of healings. He shall keep

himself pure in character and be diligent in caring for the

sick; he should be modest, sober, patient, prompt in

discharging his duty without anxiety; conducting himself

with propriety in his profession and in all the actions of his

life.

1.1.3 No person other than a doctor having qualification

recognised by Medical Council of India and registered with

Medical Council of India/State Medical Council (s) is

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allowed to practice Modern system of Medicine or Surgery.

A person obtaining qualification in any other system of

Medicine is not allowed to practice Modern system of

Medicine in any form.

24.6 Chapter 2 of the Indian Medical Council (Professional

conduct, Etiquette and Ethics) Regulations, 2002 reads as under:

“2. DUTIES OF PHYSICIANS TO THEIR PATIENTS

2.1 Obligations to the Sick

2.1.1 Though a physician is not bound to treat each and

every person asking his services, he should not only be ever

ready to respond to the calls of the sick and the injured, but

should be mindful of the high character of his mission and

the responsibility he discharges in the course of his

professional duties. In his treatment, he should never forget

that the health and the lives of those entrusted to his care

depend on his skill and attention. A physician should

endeavour to add to the comfort of the sick by making his

visits at the hour indicated to the patients. A physician

advising a patient to seek service of another physician is

acceptable, however, in case of emergency a physician must

treat the patient. No physician shall arbitrarily refuse

treatment to a patient. However for good reason, when a

patient is suffering from an ailment which is not within the

range of experience of the treating physician, the physician

may refuse treatment and refer the patient to another

physician.

2.1.2 Medical practitioner having any incapacity

detrimental to the patient or which can affect his

performance vis-à-vis the patient is not permitted to

practice his profession

xxxx to xxxxx

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2.5 Engagement for an Obstetric case: When a

physician who has been engaged to attend an obstetric case

is absent and another is sent for and delivery accomplished,

the acting physician is entitled to his professional fees, but

should secure the patient’s consent to resign on the arrival

of the physician engaged.

25. Case law on medical termination of pregnancy:

(i) Judgments of Indian Courts:

25.1 In the case of Jacob George v. State Of Kerala, (1994) 3

SCC 430, the Hon'ble Supreme Court observed as under:

"1. Life is said to be the most sublime creation of God. It

is this belief and conception which lies at the root of the

arguments, and forceful at that, by many religious

denominations that human beings cannot take away life, as

they cannot give life. This idea is so intense with some

religious leaders that they would even oppose any measure

of birth control. Abortion or miscarriage would be opposed

with greater force by these persons.

2. Mahatma Gandhi, Father of the Nation, urged long

back in Harijan that God alone can take life because He

alone gives it. For the Jains taking away of even animal life

is a sin, as, according to them, animals are as much part of

God as human beings. Buddhists too preach Ahimsa.

3. Our Rig Veda II recites:

"Grant us a hundred autumns that we may see the

manifold world.

May we attain the long lives which have been

ordained as from yore." Atharva Veda I contains the

following:

"May we be enabled to see the sun for a long time."

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The aforesaid shows that life is beyond price and it is not

only a legal wrong, but a moral sin as well, to take away

life illegally.

4. In the present appeals we are not concerned with

taking away of life before its birth. We are concerned with

destruction of foetus life. This is what is known as abortion

or miscarriage. To dispel any doubt as to whether the

foetus has a life, what has been stated by Taylor in his

Principle and Practice of Medical Jurisprudence may be

noted where the learned author has opined at p. 332 (13th

Edn.) that legally both abortion and miscarriage are

synonymous because the foetus being regarded as a

"human life ... from the moment of fertilisation". It may,

however, be stated that sometimes the word 'miscarriage' is

used for "spontaneous abortion" and "abortion" for

"miscarriage produced by unlawful means".

5. This distinction is, however, not material for our

purpose because Section 312 of the Penal Code speaks

about causing of miscarriage and Section 314 punishes the

person who has intent to cause miscarriage of a woman and

while doing so causes the death of such woman. It is under

this section that the appellant has been found guilty by the

High court of Kerala after setting aside the acquittal order

of the learned Assistant Sessions Judge. For the offence

under Section 314, the appellant has been sentenced RI for

4 years and a fine of L 5,000.00. The High court had also

taken suo motu cognizance against the order of acquittal

and it is because of this that along with the criminal appeal

filed by the State which was registered as Criminal Appeal

No. 415 of 1989 the High court disposed of Cr.RC No. 44 of

1989, which is relatable to its own action. So, two aforesaid

appeals have been preferred by the appellant. It may be

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stated that out of fine of L 5,000.00 as awarded, a sum of L

4,000.00 was directed to be paid to the children of the

deceased towards compensation for loss of their mother, in

case of realisation of fine.

6. Our law-makers had faced some difficulty when our

Penal Code was being enacted. The authors of the Code

observed as below while enacting Section 312:

"With respect to the law on the subject of abortion,

we think it necessary to say that we entertain strong

apprehension that this or any other law on that

subject may, in this country, be abused to the vilest

purposes. The charge of abortion is one which, even

where it is not substantiated often leaves a stain on

the honour of families. The power of bringing a false

accusation of this description is therefore a

formidable engine in the hands of unprincipled men.

This part of the law will, unless great care be taken,

produce few convictions but much misery and terror

to respectable families, and a large harvest of profit

to the vilest pests of society. We trust that it may be in

our power in the Code of Criminal Procedure to lay

down rules which may prevent such an abuse. Should

we not be able to do so, we are inclined to think that

it would be our duty to advise his Lordship in council

rather to suffer abortion, where the mother is a party

to the offence, to remain wholly unpunished, than to

repress it by provisions which would occasion more

suffering to the innocent than to the guilty."

So what finds place in the aforesaid section is the result of

very mature and hard thinking and we have to give full

effect to it.

7. After the enactment of the Medical Termination of

Pregnancy Act, 1971, the provisions of the Penal Code

relating to miscarriage have become subservient to this Act

because of the non obstante clause in Section 3, which

permits abortion / miscarriage by a registered practitioner

under certain circumstances. This permission can be

granted on three grounds:

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(i) Health when there is danger to the life or risk to

the physical or mental health of the woman;

(ii) humanitarian such as when pregnancy arises

from a sex crime like rape or intercourse with a

lunatic woman;

(iii) eugenic - where there is substantial risk that the

child, if born, would suffer from deformities and

diseases. (See Statement of Objects and Reasons).

8. The above shows that concern for even unborn child

was evinced by the legislature, not to speak of hazard to the

life of the woman concerned."

25.2 The Hon'ble Apex Court in the case of Suchita Srivastava

and another (supra) has held as under:

"10. ............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 :-

xxxx to xxxx

11. A plain reading of the above-quoted provision makes

it clear that Indian law allows for abortion only if the

specified conditions are met.. 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.

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

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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.

12. 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

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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. 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. 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. 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.

13. 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

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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.....”

15. ...... 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.”

30. ......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. Lastly we have

urged the need to look beyond social prejudices in order to

objectively decide whether a person who is in a condition of

mild mental retardation can perform parental

responsibilities."

25.3 In the case of Chandrakant Jayantilal Suthar (supra), the

Hon'ble Supreme Court has held as under:

“4. Looking at the peculiar facts of the case, we direct

that Ms. Maitri Chandrakant Suthar shall be examined by

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three senior most available Gynecologists of the Civil

Hospital, Ahmedabad at Asarwa, along with Dr. Riddhi

Ketan Shukla, who had examined Ms. Maitri on 25th July,

2015 and also by a Clinical Psychologist attached to the

Civil Hospital.

5. The afore-stated team of doctors shall examine Ms.

Maitri and after having an interaction with her, shall

decide whether there is a serious threat to her life, if the

child is not aborted.

6. If the team of the afore-stated doctors is of the view

that termination of the pregnancy is immediately necessary

to save life of Ms. Maitri, the concerned doctor of the Civil

Hospital shall perform necessary surgery, if the petitioner

and Ms. Maitri desire to go through to such abortion,

without taking any permission from this Court. If there is no

unanimity among the doctors, majority view of the doctors

shall prevail. In case of abortion, the hospital authorities

shall take necessary tissue from the fetus for DNA

identification.

7. Intimation of this order shall be sent to the Medical

Superintendent of the Civil Hospital, Ahmedabad, at

Asarwa, forthwith by the Registry. The learned counsel

appearing for the State shall also give intimation of this

order to the Superintendent of the Civil Hospital,

Ahmedabad, that if Ms. Maitri approaches the Civil

Hospital on 29th July, 2015, necessary arrangements for

her stay as an Indoor-patient shall be made by him so that

on 30th July, 2015 around 11.00 a.m. or at the time suitable

to the afore-stated doctors, she can be examined.

8. Intimation of this order shall also be given to Dr.

Riddhi Ketan Shukla by the learned counsel for the

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petitioner. If, for any reason, Dr. Riddhi Ketan Shukla can

not remain present, the remaining four doctors shall

examine Ms. Maitri and act as per this order.

25.4 In Komalavalli vs. C.R. Nair and Ors. 1984 CriLJ 446, a

Division Bench of the Hon'ble Madras High Court has held as under:

“On going through the affidavit filed by the petitionerdetinue

and after hearing her and her counsel, we are

satisfied that the petitioner has been impregnated against

her will and that unless the pregnancy is terminated the

petitioner will suffer traumatic and psychological shock.

Hence we grant permission to the petitioner to terminate

her pregnancy. This is subject to the condition that

qualified gynaecologists examine her and find that the

pregnancy can be terminated without detriment to the

petitioner's life and safety. Subject to the above condition,

we direct the petitioner to be transferred to the Government

Maternity Hospital, Egmore, Madras, for undergoing

termination of pregnancy.

2. After undergoing the requisite treatment at the

hospital, the petitioner will be transferred back to the

custody of Abaya Nilayam, Mylapore, Madras. The

Superintendent of Abaya Nilayam will inform Thiru Raja,

Secretary, Madras District Legal Aid and Advice Board,

Madras, about the date of return of the petitioner-detenue

to Abaya Nilayam. On receipt of such information, the

petition is ordered to be posted before us in a week

therefrom. On that date, we will pass further orders

regarding the future custody of the detenue. The detenue's

husband is also present in court and he states that he will

make the necessary arrangements for the future custody of

the detenue.”

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25.5 In the case of V. Krishnan (supra), a Division Bench of the

Hon'ble Madras High Court declined the termination of pregnancy of 16

years old girl and issued further directions.

25.6 In the case of D. Rajeswari (supra), the Hon'ble Madras

High Court has held as under:

“32. The narration of events as given by her in the

petition and the counter filed by the respondents, would

clearly show that she was raped by several persons on

several dates against her will. Besides the allegation of

rape, as contained in the records filed by both the parties,

the mental anguish and agony and grave injury to her

mental health, being suffered by the petitioner due to the

continuance of the unwanted pregnancy in her womb is also

clearly spelt out by the petitioner herself in her affidavit.

33. Having regard to the factual position as narrated by

the petitioner, which was not disputed by the respondents,

this Court is constrained to come to the conclusion that

unless the pregnancy of the petitioner is terminated, not

only the mental shock and anguish would be caused, but

also an irreparable loss would be caused to her, which

cannot be remedied.

34. In view of the clear observations made by Srinivasan,

J. speaking for a Bench, in the above referred V. Krishnan's

case (1994 (1) Mad LW (Cri) 16) and in the circumstances

of this case, I am fully satisfied that the continuance of the

pregnancy in the womb of the petitioner would definitely

involve the risk as mentioned in Section 3(2)(b),

Explanation-I to Section 3 and Section 3(3) of the Act.

35. In view of the above discussion, I deem it fit to direct

the Chairman and Superintendent, Government Kasturba

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Gandhi Hospital for Women and Children, Madras-5, to

conduct medical termination of pregnancy of the petitioner

and preserve fetus to enable the investigating agency to ask

for DNA test, which would be helpful in order to prove the

case of rape alleged by the petitioner, against the persons

during the course of trial.”

25.7 The Constitutional validity of The Medical Termination of

Pregnancy Act,1971 was a subject matter of challenge before a Division

Bench of the Hon'ble Rajasthan High Court on the ground of being

unethical and violative of Article-21 of the Constitution of India. While

up-holding the constitutional validity of the Act, the Division Bench in

the case of Nand Kishore Sharma & Ors. v. Union of India & Anr.,

AIR 2006 Raj.166 observed thus -

"4. The issues relating to medical termination of

pregnancy in common parlance known as 'abortion' are

indeed of public importance. Counsel for the parties

attempted to go into the length and breadth of the issue. In

our opinion, however, the point for consideration lies in a

narrow compass. This Court is not supposed to enter upon

a debate as to when foetus comes to life or the larger

question touching upon the ethics of abortion. We are

merely concerned with the validity of the relevant

provisions of the Act. At the outset, it may be mentioned that

the petition was sought to be argued as if the Act has been

enacted to legalise abortions but from a bare reading of the

relevant provision it would appear that Act aims at

termination of pregnancy in the interest of the woman or the

to-be-born child. Section 3 may be quoted in extenso as

under :

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"3. When pregnancies may be terminated by

registered medical practitioners :-

xxxx to xxxx

5. On a plain reading, it is manifest that Section 3

permits termination of pregnancy by registered medical

practitioner(s) on being satisfied, in good faith, that the

continuance of pregnancy would involve a risk to the life of

the pregnant woman or cause grave injury to her physical

and mental health; or that if the child were born, it would

suffer from such physical or mental abnormalities as would

render it seriously handicapped. As per the Explanation,

where pregnancy is caused by rape, the anguish of

pregnancy is regarded as 'grave injury to the mental health'

of the pregnant woman. If the pregnancy occurs as a result

of failure of any device or method used by the woman or her

husband for the purpose of limiting the number of children,

the anguish caused by such unwanted pregnancy is also

treated as constituting 'grave injury to the mental health' of

the pregnant woman.

6. It would appear that dominant object to achieve

which the law has been enacted is to save the life of the

pregnant woman or to relieve her of any injury toward

physical and mental health or prevent the possible

deformities in the child - to be born. We find support from

the Statement of Objects and Reasons of the Act, the

relevant portion of which reads as under :

"There is thus avoidable wastage of the mother's

health, strength and, sometimes, life. The proposed

measure which seeks to liberalize certain existing

provisions relating to termination of pregnancy has

been conceived (1) as a health measure - When there

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is danger to the life or risk to physical or mental

health of the woman; (2) on humanitarian grounds -

Such as when pregnancy arises from a sex crime like

rape or intercourse with a lunatic woman, etc.; (3)

eugenic grounds - Where there is substantial risk that

the child, if born, would suffer from deformities and

diseases."

7. The object of the Act being to save the life of the

pregnant woman or relieve her of any injury to her physical

and mental health, and no other thing, it would appear the

Act is rather in consonance with Article 21 of the

Constitution of India than in conflict with it. While it may

be debatable as to when the foetus comes to life so as to

attract Article 21 of the Constitution of India, there cannot

be two opinion that where continuance of pregnancy is

likely to involve risk to the life of the pregnant woman or

cause grave injury to her physical and mental health, it

would be in her interest to terminate the pregnancy.

8. The perusal of Section 3 also makes it clear that the

Act does not give a carte blanche to any person, even a

medical practitioner, to cause termination of pregnancy.

The Act provides in express terms that the pregnancy can

be terminated upto twenty weeks and only by registered

medical practitioner. If the length of pregnancy exceeds

twelve weeks upto twenty weeks, it can be terminated only if

a Board of at least two registered medical practitioners is

of the opinion, in good faith, that the continuance of

pregnancy involves risk to the life of the pregnant woman

or cause grave injury to her physical and mental health.

9. An important aspect of the case is that the

termination of pregnancy is not something which is

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provided for the first time by the Medical Termination of

Pregnancy Act.Section 312 of the Indian Penal Code too

protects termination of pregnancy described as

miscarriage; if it is done "in good faith for the purpose of

saving the life of the woman". Similarly Section 315 of the

Indian Penal Code protects any act done with intent to

prevent child from being born alive or causing it to die

after its birth "if such act has been done in good faith for

the purpose of saving the life of the mother".To bring home

the point, it would be useful to quote Sections 312 and 315

as under :-

"Section 312. Causing miscarriage,- Whoever

voluntarily causes a woman with child to miscarry,

shall, if such miscarriage be not caused in good faith

for the purpose of saving the life of the woman, be

punished with imprisonment of either description for

a term which may extend to three years, or with fine,

or with both; and, if the woman be quick with child,

shall be punished with imprisonment of either

description for a term which may extend to seven

years, and shall also be liable to fine.

Section 315. Act done with intent to prevent child

being born alive or to cause it to die after birth.-

Whoever before the birth of any child does any act

with the intention of thereby preventing the child

from being born alive or causing it to die after its

birth, and does by such act prevent that child from

being born alive, or causes it to die after its birth,

shall, if such act be not caused in good faith for the

purpose of saving the life of the mother, be punished

with imprisonment of either description for a term

which may extend to ten years, or with fine, or with

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both.

10. It would not be out of place to mention that the

deficiency in the Indian Penal Code as regards termination

of pregnancy or abortion was noticed in the Statement of

Objects and Reasons in the following words :

"The provisions regarding the termination of

pregnancy in the Indian Penal Code which were

enacted about a century ago were drawn up in

keeping with the then British Law on the subject.

Abortion was made a crime for which the mother as

well as the abortionist could be punished except

where it had to be induced in order to save the life of

the mother. It has been stated that this very strict law

has been observed in the breach in a very large

number of cases all over the country. Furthermore,

most of these mothers are married women, and are

under no particular necessity to conceal their

pregnancy.

11. Read in the context of Sections 312 and 315, IPC, it

would appear that the object of the Act was to make the

provisions relating to termination of pregnancy stringent

and effective rather than to permit blatant termination of

pregnancy. Section 312 of the IPC made causing

miscarriage an offence except in good faith for the purpose

of saving the life of the woman without laying down the

manner in which pregnancy could be medically terminated.

Section 3 of the Act provides the guidelines or limitation

within which the pregnancy could be terminated."

25.8 In the case of Dr. Nikhil D. Dattar, Gynaecologist (supra),

it has been held as under:

“20. The Statement of Objects and Reasons of the said Act

undoubtedly discloses that the legislation in the nature of

the said Act was enacted to regulate the matters in relation

to the termination of certain pregnancies. Sections 3 and 5

clearly speak of right to terminate pregnancy under the

specified circumstances and after taking necessary

precautions and after obtaining medical opinion of the

medical experts who are required to give their opinion in

good faith in that regard. Section 5 can be resorted to for

termination of pregnancy when the non-termination of

pregnancy would be dangerous to the life of pregnant

woman. It is not a mere desire to terminate the pregnancy

that will entitle either pregnant woman to go for

termination of pregnancy or for the doctors to assist the

pregnant woman to terminate the pregnancy by taking

resort to Section 5 of the said Act. There has to be an

opinion formed in good faith by a medical expert in that

regard before going for termination of pregnancy.

Undoubtedly, the experts have to ascertain whether there is

danger to the life of a pregnant woman on account of

pregnancy.

21. As regards the physical or mental abnormalities of

serious nature to the child to be born which could be the

cause for termination of pregnancy, the legislature in its

wisdom has imposed certain period within which the

pregnancy can be terminated. Nothing is placed on record

on behalf of the petitioners even to remotely suggest that

the period so prescribed by the statute has been arbitrarily

prescribed or that there is no logic behind the period

prescribed by the legislature in that regard.

22. In the circumstances, the petitioners have not placed on

record even any material which could perhaps justify the

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exercise of our discretion in writ jurisdiction to allow the

petitioner No.3 to terminate the pregnancy. No exceptional

case in that regard has been made out so as to exercise

discretionary jurisdiction under Article 226 of the

Constitution of India to issue any writ in the matter.”

25.9 In the case of Vijender(supra), learned Single Judge of this

Court has held as under:

“5. There has been a similar petition before this Court on

a previous occasion which was disposed of in CWP No.

14058 of 2014 decided on 02.08.2014. I had directed that in

every case where a complaint of rape is lodged and the

victim is found to have become pregnant and she does not

want to retain the foetus, the pregnancy itself may be

treated as involving grave mental injury and the medical

assistance must be secured to the rape victim at the nearest

Government hospital with a request through the rape victim

or the guardian depending on whether the person is a

minor or not to take an opinion from the competent medical

personnel about the feasibility of termination of pregnancy

and carry out the procedure without wasting any time. A

rape victim shall not be further traumatized by putting

through a needless process of approaching Courts for

taking permission. The Medical Termination of Pregnancy

Act does not contemplate such a procedure at all and the

medical personnel before whom the person shows up is

bound to respond to an information regarding complaint of

rape and if evidence is available that the person is a victim

of rape, the medical personnel will take decision regarding

the termination of pregnancy and carry out the procedure.

If a plea for termination of pregnancy is made that should

be dealt with such sensitivity as the occasion demands.

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6. In the writ petition referred to above in CWP No.

14058 of 2014, this Court has directed the order copy to be

dispatched to the Director General of Police for the States

of Punjab, Haryana and Union Territory, Chandigarh. If

this direction had been taken seriously and the information

must have percolated to the SHO, he would not have forced

the petitioner to approach this Court for appropriate

direction. This order is directed to be sent to the Director

General of Police, Haryana who will in turn communicate

the matter to the SHO concerned and elicit the information

as to why he did not assist the rape victim to secure the

medical assistance in the manner that she deserved in spite

of directions already given by this Court.

7. The writ petition is disposed of with the above

directions. If the petitioner brings the rape victim with

identification and produces the copy of this order, the

District Medical Officer or the officer who holds the power

of superintendence over the facilities in the Government

Hospital, Hisar shall carry out the directions forthwith. A

copy of this order be issued under the signature of Special

Secretary of this Court.”

25.10 In the case of Bashir Khan (supra), learned Single Judge of

this Court has observed as under:

“8. Considering the fact every passing day could harm

her physically and mentally, I am of the view that she

must be examined by the two medical practitioners attached

to the Obstetric and Gynaecology department at PGI and

the Director, PGI, Chandigarh, will immediately constitute

an ad hoc Medical Board to examine the petitioner on

04.08.2014 and if they are of the view that the length of

pregnancy does not exceed 20 weeks, proceed to terminate

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the pregnancy by appropriate medical procedure. No

further direction is necessary from the court before the

actual procedure is done, needless to say, care being taken

to ensure physical and mental safety of the victim.

9. To ensure that the victim of rape who becomes

pregnant does not lose time by applying from court to court,

there shall be general instructions given by the Director

General of Police to all the police stations who register

cases of rape and who come by information that the victim

has become pregnant to render all assistance to secure

appropriate medical opinions and also provide assistance

for admission in Government hospitals and render medical

assistance as a measure of support to the traumatized

victim. The need to apply to the court for permission would

arise only in a situation where there is a conflict of whether

the pregnancy must be terminated or not or when the

opinions of two medical practitioners themselves differ. It is

hardly necessary in a situation where there is no contest

and the victim gives her own consent and the guardian also

gives consent and there is proof of such pregnancy was

resultant to an offence of rape. This instruction shall also be

circulated to all the Station Inspectors manning police

stations in the State of Punjab.

10. Issue copy of the order dasti. Registry may dispatch

the order copy to the Director, PGI, Chandigarh, to carry

out the directions for immediate constitution of the Medical

Board for examination of the patient and to carry out the

opinion if it were to be that the patient requires the medical

procedure for termination of pregnancy. Since the birth

certificate of the victim is not available, I have taken the

age to be 14 years on the assertion of the parent. The

medical practitioner may carry out such test as it finds

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necessary to ascertain her age. This is only by way of

caution, for, even without reference to the age and if she

was more than 14 years of age if she was a victim of rape,

there is not an age restriction for carrying out the

termination of pregnancy. There is also a direction to take

appropriate samples of the foetus for DNA testing that

could be used, if necessary at an appropriate time.

25.11 In the case of Kavita (supra), the victim in question was

only 12 years old who was impregnated as a result of which the gestation

period had crossed 34 weeks; the termination of pregnancy was declined

by the learned Single Judge, however, the Division Bench issued various

directions.

25.12 In the case of (minor) daughter of Sh. Rudarpal (supra),

this Court has held as under:

“8. Taking a cue from the order passed in Kavita's case

(supra), this petition is also hereby disposed of with certain

directions, which are as follows:-

(i) Since Rudarpal, who is alleged to be a daily wage

worker and is a resident of Sonepat, would find it

difficult to visit Chandigarh very often and it would

be easier for him to take 'X' for routine checkup to the

Pt. B.D. Sharma University of Health Sciences,

Rohtak, therefore, the Registrar, Pt. B.D. Sharma

University of Health Sciences, Rohtak, who is though

not a party in this case, is directed to admit 'X' as an

indoor patient as and when the need in this regard

arises;

(ii) The Registrar, Pt. B.D. Sharma University of

Health Sciences, Rohtak shall provide a private room

to 'X' so that she could be attended by her family

member(s);

(iii) It shall be the duty of the authorities of the Pt.

B.D. Sharma University of Health Sciences, Rohtak to

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provide all requisite medicines, food, clothing and

other facilities as are required to be made available

to `X' or her attendant(s), well in advance and the

Professor and Head of the Department of Obstetrics

and Gynaecology of the Pt. B.D. Sharma University

of Health Sciences, Rohtak shall personally monitor

such requirements;

(iv) The Medical Superintendent of the Pt. B.D.

Sharma University of Health Sciences, Rohtak shall

be obligated to ensure meticulous compliance of

every advice, recommendation, suggestion or order

in this regard made to him/her by the Professor and

Head of the Department to Obstetrics and

Gynaecology Department;

(v) The Professor and Head of the Department to

Obstetrics and Gynaecology of the Pt. B.D. Sharma

University of Health Sciences, Rohtak would further

supervise the periodical needs of 'X' like psychiatric

consultation or related assistance from other

departments of the Pt. B.D. Sharma University of

Health Sciences, Rohtak, which shall also be

provided timely;

(vi) The authorities of the Pt. B.D. Sharma University

of Health Sciences, Rohtak shall ensure adequate

privacy to 'X' and her family members while she

would be an indoor patient and the identity of 'X'

shall not be disclosed and shall also not be exposed

to the public and media.

(vii) The Chief Secretary to the State of Haryana,

Principal Secretary, Department of Health and all

other concerned departments of State of Haryana are

directed to ensure the reimbursement of bills or

expenditure incurred on the victim by the Pt. B.D.

Sharma University of Health Sciences, Rohtak,

forthwith but not later than two weeks from the date

of submission of the bills.

9. It is made clear that the petitioner shall always be at

liberty to approach this Court for any other directions, if

need arises.

10. With these directions, the present petition is hereby

disposed of.

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11. Before parting, I would place on record my

appreciation to the authorities of the PGIMER, Chandigarh

and the members of the Medical Board who have wasted no

time in complying with the request made by this Court on

14.09.2015 and examined `X' on the next day i.e.

15.09.2015 and produced the report today, enabling this

Court to dispose of this case at the earliest to give

appropriate relief to 'X' and her family members.”

25.13 In Janak Ramsang Kanzariya vs. State of Gujarat and

another 2012 (7) R.C.R. (Criminal) 2025, the Hon'ble Gujarat High

Court has held as under:

“14. Considering the above and keeping in mind the best

interest of minor, Janakben, and her parents and likely

consequences and innumerable mental, physical, social and

economical problems in future if pregnancy is not allowed

to be terminated and resulted into birth of a child, this

Court has come to the conclusion that the present case falls

within the parameters of Sections 3 and 4 of the MTP Act.

There is no bar, as provided in Explanation I to sub-section

(2) of Section 3 of the MTP Act, for termination of

pregnancy in case of a rape victim if such pregnancy is

caused by rape.

15. Having regard to the factual and legal position as

discussed hereinabove and not disputed by Mr. Shivang

Shukla, learned Additional Public Prosecutor for the

respondent-State, the provisions of the MTP Act, and

considering the judgment of the Apex Court in the case of

Sudhita Srivastava [supra], this Court is constrained to

issue the following directions :

[i] The Civil Surgeon, Government General Hospital,

Surendranagar, is directed to conduct medical

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termination of pregnancy of minor, Janakben, with

two qualified surgeons including Gynecologist,

Obstetricion in presence of a qualified physician with

due care and precaution so as to avoid any likelihood

of untoward harm to the physical or mental health of

minor, Janakben, after carrying out necessary

medical check-up, forthwith;

[ii] It is clarified that if the concerned panel of

doctors are of the opinion that termination of

pregnancy would affect the life and safety of minor,

Janakben, they shall not terminate the pregnancy,

otherwise, they shall terminate the pregnancy.

[iii] The blood group of minor, Janakben, is B+ as

per the medical report and, therefore, special

arrangement be made for providing adequate

quantity of blood in the event of necessity.

[iv] The foetus be preserved to enable the

Investigating Agency to send it for DNA test.

[v] Minor, Janakben, be discharged from the hospital

after termination of pregnancy only if she is found to

be medically fit to reside with her parents and,

thereafter, she may be called for periodical check-up

to know about status of her health as and when

required and found necessary and she be provided

medicine, proper diet and nutritious food as may be

necessary for her health.

25.14 In Special Criminal Application No.1786 of 2013

(Jankiben Ronakbhai Patel v. State of Gujarat & Anr.), decided on

21.06.2013, learned Single Judge of Gujarat High Court allowed the

termination of pregnancy of a rape victim who was major and her

pregnancy was of nineteen weeks.

25.15 In the case of Ashaben (supra), the Hon'ble Gujarat High

Court has held as under:

“12. I may only say having regard to the peculiar

facts and circumstances of the case that the applicant will

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have to bravely go ahead with the pregnancy and when time

comes, she should deliver the child. I am conscious of the

fact that it is easy for a judge to say so in his judgment

because it is ultimately the applicant who will have to face

the hard days ahead, but as observed above, howsoever

harsh one may find the law, yet it remains the law and one

has to respect it. She must understand that termination at

this stage will put her own life in peril. I can only remind

her of what Helene Evans, a victim of rape, had to say in

these type of situations. I quote "After the abortion, I

wanted to die. How could I live when I had just ended the

life of my child? The negative feelings resulting from the

rape were not eliminated by the abortion. Nothing was

solved; instead, the grief was now doubled."

13. I may also quote a short extract from an article

"rape, incest and abortion; searching beyond the myths by

David C. Reardon Ph.D. " Finally we must recognise that

children conceived though sexual assault also deserve to

have their voices heard. Rebecca Wasser-Kiessling, who

was conceived in a rape, is rightfully proud of her mother's

courage and generosity and wisely reminds us of a

fundamental truth that transcends biological paternity. "I

believe that God rewarded my birth mother for the suffering

she endured, and that I am a gift to her. The serial rapist is

not my creator, God is."

Similarly, Julie Makimaa, who works diligently against the

perception that abortion is acceptable or even necessary in

cases of sexual assault, proclaims. "it doesn't matter how I

began. What matters is who I will become."

14. In the result, this application fails and is hereby

rejected. However, I would like to issue few directions in

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the matter;

(1) The District Superintendent of Police, Botad shall

take over the investigation of the first information

report bearing No.C.R. No.I-10 of 2015 registered

with the Ranpur Police Station and see to it that it is

completed at the earliest in accordance with law. I

am told that out of the seven persons named as an

accused in the first information report, three have

been arrested, whereas the other four are yet not

arrested and are absconding. All steps should be

taken to see that the other four co-accused are

arrested at the earliest.

(ii) The Collector, Botad shall personally look into the

matter and keep a close watch on the applicant and her

family members including the husband of the applicant. The

Collector shall ensure that proper medical facilities are

provided to the applicant and the child is delivered safely.

The Collector shall also see to it that after the delivery of

the child, the child is looked after well and is not

abandoned in any manner. If necessary, the Collector can

avail of the services of any NGO or any other govt. social

organisation in this regard.”

25.16 In Special Criminal Application (Quashing) No.4255 of

2015, titled as ' Chandrakant Jayantilal Suthar & Anr. vs. State of

Gujarat', decided on 23.07.2015, learned Single Judge of Gujarat High

Court has held as under:

“30. This Court is unable to accede to this proposition, as

Section 3(2)(d)(i), read with Explanation1, specifically

state the duration of the pregnancy, which duration does

not exceed twenty weeks. Had the length of the pregnancy

not exceeded twenty weeks, the argument of the learned

counsel for the petitioners could have been accepted.

However, as it is an admitted fact that the pregnancy is now

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a little over twentyfour weeks, this Court is unable to

accept the submissions of the learned advocate for the

petitioners.”

25.17 In the case of Bhavikaben(supra), the rape victim was 18

years old and her pregnancy was 24 weeks, termination was permitted.

(ii) Judgments of Foreign Courts:

25.18 In the case of The King vs. Bourne 1. K.B. 687: [1938] 3

All ER 615, it was held as under:

“The charge against Mr. Bourne is the very grave

charge under the Offences against the Person Act 1861, s.

58, that he unlawfully procured the abortion of the girl who

was the first witness in the case. It is so grave a crime that

the punishment may be penal servitude for life. It is one of

those crimes, like murder, which is only triable by the

judges of the High Court, and, judging by the cases that

come before the court, [3 All E. R. 616] it is a crime by no

means uncommon. This is the second case at these July

sessions at this court where a charge of an offence against

that section has been preferred, and I mention that case

only to show you how different the case now before you is

from the type of case which usually comes before a criminal

court. In that case, a woman without any medical skill or

any medical qualifications did what is alleged against Mr.

Bourne here: she unlawfully used an instrument for the

purpose of procuring the miscarriage of a pregnant girl.

She did it for money. £2 5s. was her fee, and she came from

a distance to a place in London to do it. £1 had to be paid

to make the appointment. She came, she used her

instrument, and, within an interval of time measured not by

minutes but by seconds, the victim of her malpractice was

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dead on the floor. She was paid the rest of her fee and she

went away. That is the class of case that usually comes

before the court. The case here is very different. A man of

the highest skill, openly, in one of our great hospitals,

performs the operation. Whether it was legal or illegal you

will have to determine, but he performs the operation as an

act of charity, without fee or reward, and unquestionably

believing that he was doing the right thing, and that he

ought, in the performance of his duty as a member of a

profession devoted to the alleviation of human suffering, to

do it. That is the case that you have to try today.”

25.19 In that case, a 14 years old girl was raped by five soldiers as

a result of which she became pregnant. An eminent gynaecologist

performed an abortion on her and was charged with the offence of

conducting an illegal abortion. He was acquitted.

25.20 In the case of Roe v. Wade (supra) the Supreme Court of

the United States in its landmark decision established that most laws

against abortion violate a constitutional right to privacy, thus,

overturning all State laws restricting the abortion that were inconsistent

with the decision. Jone Roe, wanted to terminate her pregnancy because

she contended that it was a result of rape. Relying on the then current

state of medical knowledge, the decision established a system of

Trimesters that attempted to balance the State's legitimate interests with

the individual constitutional rights. The Court ruled that the State cannot

restrict a women's right to an abortion during the first trimester, the State

can regulate the abortion procedure during the second trimester "in ways

that are reasonably related to maternal health" and in the third trimester,

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demarcating the viability of the foetus, a State can choose to restrict or

even to prescribe abortion as it would deem fit. It was held that "the

childbirth endangers the lives of some women, voluntary abortion 'at any

time and place' regardless of medical standards would impinge on a

rightful concern of the society. The woman's health is part of that

concern as is the life of the foetus after quickening. These concerns

justify the State in treating the procedure as medical one.

25.21 A West German Constitutional Court in the abortion reform

law case (1975) 39 B Verf GE observed that the West German

Constitutional Court laid down the following proposition :

(1) "Everyone" in Article 2 includes an unborn being;

(2) Human life exists in embryo from the fourteenth day of

the conception;

(3) It is the duty of the State to protect and promote the life

of the foetus and defend it from unlawful interference by

other person;

(4) The right of development accrues in the foetus from the

mother's womb and is not complete even after birth;

(5) If the foetus was considered only as a part of the

maternal organism, the termination of pregnancy would

remain entirely in the sphere of private life, not warranting

public interferences. But because the foetus is "an

autonomous human being" under the protection of the

Constitution, the termination of pregnancy has a social

dimension which demands public regulation;

(6) The Constitution also protects a woman's right to free

development of her personality, which includes freedom to

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decide against parenthood. But this right is not guaranteed

without limitations. The right of others, the constitutional

order, and the moral code all restrict it;

(7) A compromise which guarantees both the protection of

foetus as well as the freedom of abortion of a pregnant

woman is impossible because the termination of pregnancy

always means "destruction of unborn life". The legal order

cannot, therefore, make a woman's self-determination, the

principle of its regulations. On the other hand, the

protection of foetus must be given priority to the woman's

right of self-determination;

(8) The State is to effectively fulfil its duty to protect the

"developing life". In discharging this duty the State is to

make a reasonable adjustment between unborn right to life

and the woman's right to her own life and health. The

unborn's right to life can lead to burdens for the woman

which sharply exceed those of a normal pregnancy. In such

a case, the State may exempt the pregnant woman from

punishment for destroying the foetus where there is

necessity to protect the pregnant woman from a threat to

her life or a threat of a serious impact on her health or

other cases, where the burden is extraordinary; and

(9) The duty of the court is not to put itself in the

legislator's place, but to determine whether the legislator

has fulfilled its duty to protect the "developing life" and

made a reasonable adjustment between the right of the

unborn and the right of the pregnant woman. (see D.D.

Basu, Commentary on Constitution of India, Vol.III Edn,

2008 3143)

25.22 The Abortion Act, 1967 of the UK also in its Article 2 does

not confer an absolute right to life to the unborn child. It was so held in

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Paton v. United Kingdom (1980) 3 EHRR 408. Abortion is permitted if

the continuance of the pregnancy involves risk. The right to life of

foetus is subject to an implied limitation allowing the pregnancy to be

terminated in order to protect the life of a mother. The same was upheld

in H v. Norway {(1992) 73 DR 155}.

25.23 The Hon'ble Supreme Court of Canada interpreted Article 7

of the Canadian Charter which guarantees an individual's right to life,

liberty and freedom and security of a person. In the leading case of

Morgentalor Smoling and Scott v. R (1988) 44 DLR (4th) 385, the

Court focused on the bodily security of the pregnant women. The

Criminal Code of that country required a pregnant woman, who wanted

an abortion, to submit an application to a therapeutic committee, which

resulted in delays. The Supreme Court found that such a procedure

infringed the guarantee of security of a person. This subjected the

pregnant woman to psychological stress.

25.24 In the case of R.R vs. Poland, application No.27617/04,

decided on 26.05.2011 by the European Court of Human Rights, the case

concerned a woman who was deliberately refused genetic tests during

her pregnancy by doctors who were opposed to abortion. The woman

and the doctors suspected a severe genetic abnormality in the fetus, but

the doctors withheld the tests until the legal time-limit for abortion had

expired. R.R. tried desperately to obtain the relevant genetic tests, that

she may have had the opportunity to make an informed decision about

whether or not to terminate her pregnancy. She saw numerous doctors

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and went to several hospitals and clinics, she even travelled to doctors in

other regions than her own – at one point she was even hospitalized for a

few days, during which time the doctors only carried out irrelevant tests

– but all to no avail. Only when it was too late for an abortion, was her

suspicion that the baby she was carrying had a genetic abnormality

confirmed. The child was subsequently born with Turner syndrome.

The Court treated the case under Articles 3 and 8 of the Convention and

found a violation of both of these provisions. Articles 3 of the

Convention which, insofar as relevant, reads as follows:

“No one shall be subjected to ... inhuman or

degrading treatment... ”

25.25 Article 8 of the Convention, insofar as relevant, reads as

follows:

“1. Everyone has the right to respect for his private ...

life ...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the

interests of national security, public safety or the economic

well-being of the country, for the prevention of disorder or

crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others.”

25.26 The European Court after considering the relevant Articles

of the Convention came to the conclusion as under:

“159. The Court notes that the applicant was in a

situation of great vulnerability. Like any other pregnant

woman in her situation, she was deeply distressed by

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information that the foetus could be affected with some

malformation. It was therefore natural that she wanted to

obtain as much information as possible so as to find out

whether the initial diagnosis was correct, and if so, what

was the exact nature of the ailment. She also wanted to find

out about the options available to her. As a result of the

procrastination of the health professionals as described

above, she had to endure weeks of painful uncertainty

concerning the health of the foetus, her own and her

family’s future and the prospect of raising a child suffering

from an incurable ailment. She suffered acute anguish

through having to think about how she and her family

would be able to ensure the child’s welfare, happiness and

appropriate long-term medical care. Her concerns were not

properly acknowledged and addressed by the health

professionals dealing with her case.”

26 It would be appropriate to understand the term 'medical

termination' and its historical aspects. The medical termination of

pregnancy is commonly known as 'abortion'.

27. What is abortion?

The word 'abortion' comes from the Latin word 'abortio'

which means to abort, miscarriage, deliver prematurely. The Latin word

'abortus' means miscarriage, premature, untimely birth. In medicalterminology

abortion means ending a pregnancy prematurely. An

abortion is when the pregnancy is ended so that it does not result in the

birth of child. This is, in fact, called termination of pregnancy. The

termination of pregnancy is extremely controversial issue all over the

world. The major dilemma is whether a mother or a victim of rape has a

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right to terminate her pregnancy at any time she wishes or unborn child

has a right.

28. Historical Aspect of Abortion:

28.1 Abortion was accepted in the ancient Greece and Rome.

Romans and Greeks were not much concerned with protecting the

unborn, but they did object to abortion. Earlier belief among the

philosophers was that a foetus did not become formed and begin to live

until at least 40 days after conception for a male, and around 80 days for

a female. In Politics, Book Seven Part XVI, 350 B.C.E. (before common

era), Aristotle, a great philosopher wrote:

“.... when couples have children in excess, let

abortion be procured before sense and life have

begun; what may or may not be lawfully done in

these cases depends on the question of life and

sensation.”

28.2 Under English common law, abortion was a crime after

quickening but the seriousness of that crime was different at different

times in history. In 1920, English Law added a get out clause that

stopped abortion being a crime if it was done in good faith for the

purpose of only preserving the life of the mother.

28.3 In 1938, in the case of R vs. Bourne's (supra), an

abortion was performed on a 14 years old girl, victim of rape. The Court

acquitted the doctor who carried out the abortion and faced the legal

action observing that the girl's mental health would have suffered had

she given birth. This established that mother's mental suffering could be

a sufficient reason for abortion. In this case, Mr. Justice Macnaghten

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observed as under:

“As I have said, I think that those words ought to be

construed in a reasonable sense, and, if the doctor is of

opinion, on reasonable grounds and with adequate

knowledge, that the probable consequence of the

continuance of the pregnancy will be to make the woman a

physical or mental wreck, the jury are quite entitled to take

the view that the doctor, who, in those circumstances, and

in that honest belief, operates, is operating for the purpose

of preserving the life of the woman. ”

28.4 Similarly, the decision rendered by Supreme Court of USA

in Roe vs. Wade's case (supra) made the abortions legal in United

States of America.

29. In India, MTP Act has been enacted on the lines of U.K.

Abortion Act, 1967.

30. Section 3 of the MTP Act requires permission of one or

more than one doctor to opine and carry out MTP depending upon the

gestational period. Section 5 of MTP Act carves out an exception for

carrying out termination of pregnancy required immediately to save the

life of the pregnant women irrespective of length of pregnancy. The

opinion in good faith can be made even by single doctor too. The

scheme of the MTP Act indicates that pregnancy can be terminated in

good faith if the continuance of pregnancy would involve risk to the life

of the pregnant woman or of grave injury to her physical or mental health

or there is a substantial risk that if the child was born, it would suffer

from such a physical or mental abnormalities as to be seriously

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handicapped. The MTP Act provides a defence for those who carry out

the abortion under certain parameters of MTP Act. The main objects of

the M.T.P Act are perceived 'need' to prevent some sections of the

population from reproducing and national interest and other necessary

exigencies. The scheme of the MTP Act can be summed up as under:

“1. Reasons to seek termination of pregnancy

should be as mentioned under Section 3 of MTP Act.

If those reasons are not present, no pregnancy can be

legally terminated.

2. Length of pregnancy is a vital factor to give

green signal for termination.

3. Pre-requisites of doctor’s opinion to declare fit

for termination as per law. The Length of pregnancy

determines the need for opinion of one or more

doctors.

4. Consent of woman or her guardian (minor and

mentally ill) is mandatory.

5. To save life of woman, Section 5 lifts the

embargo of termination on post 20-weeks pregnancy

and requirement of more than one doctor’s opinion.

But the language used is “immediately”.

6. No provision stipulates judicial authorization

of MTP in any case including those necessitating

termination on account of mental anguish in woman

due to rape committed on her.”

31. The Courts allowing or declining termination of pregnancy

always depend upon the opinion of the doctors. It may be a rare case

where court passes order contrary to opinion of medical boards. This is

due to reason that medical and health professionals are the experts in this

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field. The catena of judgments referred above clearly indicates that

many a time, time is wasted in getting the opinion of the medical board

and by that time even statutory period lapses.

32. In fact, the statute provides for early termination of

pregnancy not on demand but on satisfaction of certain conditions. The

requirements that need to be fulfilled are enumerated in Section 3(2) of

the MTP Act. Apart from that, uptil 20 weeks of pregnancy, there are no

impediments in law for termination of pregnancy, if those conditions

exist. Even then, there appears to be a practice of approaching the courts

for termination of pregnancy before the completion of 20 weeks. Many a

time, even doctors while examining the rape victims do not probe the

possibility of pregnancy and many a time in spite of pregnancy, its

notice is not taken and medico-legal reports are prepared in a casual

manner, unmindful of the consequences specifically in rape cases. The

practice stems from lack of awareness on the part of the doctors,

investigating officers, lawyers and courts. The cases are filed by the

counsel without sometime being aware of the provisions of the Act and

the need of urgency in such cases. The practice of filing such cases has

been condemned by this Court in Bashir Khan's case (supra) and

subsequently, in the case of Vijender's case(supra). The judgments in

the said cases mention issuance of orders to the Director General of

Police of the State of Punjab, Haryana and the U.T. to ensure that such

cases of termination of pregnancy should not be brought to court.

33. Why are the late abortions still necessary?

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33.1 Unwed teenagers who may have suffered pregnancy due to

the alleged rape may not know that they are pregnant until they feel the

baby kick. This is known as quickening. At this stage, foetal movements

occur between 17th to 20th week of pregnancy, when at this stage issue of

termination of pregnancy arises the legal scholars, ethicists and others

continue to dissect this complicated issue. Social policy makes the issue

of late abortion worse. The doctors, physicians and social policy makes

the issue of late abortion worse. The doctors, physicians, gynaecologists

and obstetricians grapple the following issues in relation to the late

termination of pregnancy

(i) what is appropriate or not as per their own beliefs;

(ii) whether abortion should now be carried out in

obstetrical wing of the hospital where foetus can be

 monitored and

(iii) whether neonatologist should be present at the time of

termination of pregnancy; where a live birth is a

possibility.

Terminating pregnancy at advanced stage, say 28 weeks, may not be

advisable as this may be high risk pregnancy. We can make an attempt

to draw a line at 24 weeks, as this period is fixed by the statutes in

various other countries. Even Draft Medical Termination of Pregnancy

(Amendment) Bill, 2014 is pending in the Parliament, according to

which decision to allow abortion between 20 and 24 weeks can be taken

in good faith by the competent person. The revision of the legal limit for

termination of pregnancy is long due. In fact, medical technology has

leaped beyond the MTP Act and assumptions of medical ethics. Most of

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the doctors try to remain within law and do not consider the peculiar

circumstances of the case before them. Advances in neonatology may

have an impact on the judgment in Roe vs. Wade's case (supra) to

render at obsolete. Some abortions are necessary beyond the statutory

limit in the light of circumstances under which they are sought and,

therefore, we require to streamline the system in this regard.

33.2 There is a possibility that when a child is born alive, he/she

may be required extraordinary care. The saying is 'fear inspires

caution'. In case, foetus is born alive during late termination of

pregnancy, physician, gynaecologist and obstetricians confront a serious

problem as performing late abortion is the gap between abstract theory

on foetal viability and realities of medical practice. Pregnancy due dates,

date of conception and foetal viability are still an uncertain area.

Viability is more difficult to assess. As per the opinion of the

gynaecologist, 24 weeks foetus physically appears to resemble a child

but his lungs and brain are still not fully developed, nor its eye-lids are

open.

33.3 The MTP Act is an inadequate act and only appears to have

been designed to serve the interest of the family planning programme.

Under the MTP Act, women have restricted right to termination of

pregnancy. The declared objects of the MTP Act are to help women,

who become pregnant as a result of rape, women who are pregnant due

to contraceptive failure (applicable to married women/marital sexuality)

or to reduce the risk of severely handicapped children being born.

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33.4 Right to abortion involves the fundamental right of the

mother and the foetus. Now the issue arises at what stage a foetus can be

seen as an individual in its own right. It is a disturbing issue. The

notion that the foetus is an individual in its own right infuses an

emotional angle to the entire issue on abortion. The abortion causes

emotional turmoil for many women and their families. The woman has

an exclusive and inalienable right over her body and her reproduction

and that cannot be transferred to her family or the State. This is more

relevant in our country where child bearing is governed by social mores.

Article 21 of the Constitution of India provides right to life and right to

privacy. Article 6(1) of the International Covenant on Civil and Political

Rights prohibits the arbitrary deprivation of life. But, the right of the

mother is to be balanced with the right of unborn. One view is that

human being does not exist as a legal person until after birth. The foetus

does not enjoy independent legal personality. In the case of Mr. Vijay

Sharma and Mrs. Kirti Sharma vs. Union of India AIR 2008 Bom.

29, it was held that foeticide of girl child is a sin; such tendency offends

dignity of women. It undermines their importance. It violates woman's

right to life. It violates Article 39 (e) of the Constitution which states that

the principle of state policy that the health and strength of women is not

be abused. It ignores Article 51 (A) (e) of the Constitution which

envisages that it shall be the duty of every citizen of India to renounce

practice derogatory to the dignity of the women. The legislature in the

MTP Act has not defined anguish that it must be termed as grave injury

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to the physical and mental health of the victim. The Hon'ble Supreme

Court in catena of judgments has developed the various rights under the

concept of personal liberty under Article 21 i.e. right of free enjoyment,

right to human dignity, right to have access to justice, right to privacy.

Thus even in the best circumstances, this Court believes that no law or a

person can ethically compel a woman to carry on pregnancy that she

does not want. When pregnancy has progressed to a point where the

foetus has become viable, one is compelled to view the situation from

the point of the woman as well as the potential child.

34. Psychological Effects of rape, impregnation and refusal

of termination of pregnancy for want of legal sanction on

the victim:

Victims of rape impregnated due to the act experience both

short and long term psychological effects. Deep physical trauma is most

common and lasting effect of rape. The medical literature and studies are

galore with the instances of Post Traumatic Stress Disorder (PTSDs) in

rape victims. Due to the less evolved society, more so in this part of the

world, till date the rape victim carries more stigma than the person

accused of the offence of rape. Those assaulted repeatedly at very young

age may need treatment and counselling for the rest of their lives. Rape

of minors and young girls, at the hands of unconscientious criminals

continuously increasing in various parts of the country, is itself a matter

to be ashamed of as a society and needs deliberations to curb the

menace. What makes it worse is the callous attitude of the person in

authority, specifically the investigating officers. Rape of innocent and

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minor girls on the one hand, and the complete absence of sensitivity,

empathy in the society towards the victims and, moreover,the

misogynistic response by the authorities on the other hand, is highly

condemnable. The daughters of India are falling prey to a deeply

misogynistic society. We need sensitive people at various echelons in the

set up of investigation of criminal cases and rehabilitation of victims of

crime who will hear the cries of anguish of the victims with an open

mind and a sensitive heart. The perpetrators of such heinous crimes

roam in streets like wolves in forests and threaten the victims and their

families of dire consequences as a result of which tears stream down

their faces.

35. Need for Counselling and Mental Health Evaluation

from time to time:

35.1 There is extensive research to the fact that the incident of

violence on the body of a victim re-visits her thinking process many

times a day. The counselling is necessary to help her overcome this

trauma. The Indians are perceived to have faith in religions and God.

God is a wonderful counsellor; we have learnt from scriptures and holy

books. The sufferings must reach to a minimum level of severity and for

this purpose, counselling is a necessity. The denial of such services

which are critical for making an informed decision as to whether to seek

abortion or not also violates the right to be free from inhumane and

degrading treatment. The assessment of minimum level of suffering is a

relative term. It depends upon the circumstances of the case, such as

duration of treatments, its physical and mental effects and the age and

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state of health of the victim. Paradoxically, both the rape and abortion

are violations and infringement of right to life.

36. In this case, the alleged pregnancy is the result of a crime of

rape. The minor and her legal guardian have expressed in an unequivocal

desire to get the pregnancy terminated. The doctors at Civil Hospital

cum SHKM Government Medical College, Nalhar, Nuh should have

examined the possibility of pregnancy of the petitioner-victim in terms

of Section 164-A of Code of Criminal Procedure and helped the minor

and her legal guardians to make an informed decision with regard to

termination or continuation of the pregnancy.The doctors who conducted

the initial medico-legal examination at Nalhar did not perform their duty

as doctors with due diligence and did not carry out pregnancy test in

spite of the information that she is victim of alleged sexual assault. The

petitioner No. 1 during the course of conversation in camera with

Amicus Curiae had given the threat to commit suicide if the pregnancy,

which is causing her a lot of mental anguish and embarrassment in the

society as per her understanding, was not allowed to be terminated. Such

a statement of the victim reflects the state of acute mental and physical

health problem. Even in the medical report dated 3rd of May 2016

submitted by the Board of Doctors, PGIMER it is mentioned that “there

is a possibility of harm to the patient due to social and emotional

consequences of continuation of pregnancy.” This court vide order dated

13.05.2016 directed the Medical Board of PGIMER to reassess the

termination of pregnancy of Petitioner No. 1 and, if the same is

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medically feasible, they should go ahead with the termination of

pregnancy without further orders from the court. The Medical Board of

the PGIMER also determined the bone age of petitioner No. 1 through

X-Ray examination to be 18 to 20 years.

37. Section 3 of MTP Act stipulates that the pregnancy which

exceeds 12 weeks but does not exceed 20 weeks may be terminated if

not less than 2 registered medical practitioners can form an opinion in

good faith that continuation of pregnancy will pose risk to the life of the

pregnant woman or will cause grave injury to her physical and mental

health. The pregnancy in the present case is the result of rape and the

victim is a minor as per the assertion in the Writ Petition and admission

in the written statement of State Government. However, the age of the

petitioner No. 1 as per x-ray examination of her bones has been

determined between 18 to 20 years by the Medical Board, PGIMER

constituted on 03.05.2016 under the the directions of this Court.

Meaning thereby she might be major and is legally capable to take a

decision with regard to her termination of pregnancy. Even if she is a

minor, her father –her natural Guardian, had given the consent for the

same and has approached this Court. This Court is of the opinion that in

the present case applying the 'best interest test' as explained by the

Hon'ble Supreme Court in Suchita Srivastava’s case (supra), the

pregnancy of petitioner No. 1, which is the result of alleged rape and has

caused deep mental anguish to her, constraining her to demand the

termination of the same in unequivocal terms, may have been terminated

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by the doctors of PGIMER, which is an imminent institution on the

medical sciences. This observation finds strength from the fact that the

gestation period of pregnancy was not beyond 24 weeks at that time and

this Court had given the legal authority to the medical board to carry out

the termination if the same is necessary for preserving the life and health

of Petitioner No. 1. This court is of the considered opinion which is

corroborated from the opinion of psychiatrist of PGIMER that

continuance of the pregnancy is certainly a grave injury to petitioner

No. 1’s physical and mental health. The doctors in such circumstances

cannot be penalized when they act in good faith and help a hapless

victim to abort the pregnancy caused due to rape. It appears that doctors

did not carry out termination of pregnancy for fear of prosecution under

the penal provisions referred to in the foregoing paras of this judgment.

This court is of the view that the fear of chilling effect of prosecution

needs to be removed from the mind of doctors. Section 3 of MTP Act

provides a defence when the termination is done in accordance with the

conditions set out in the MTP Act. Further, a medical practitioner is

protected by Section 8 of MTP Act for “any damage caused or likely to

be caused by anything” for any act done in good faith under the MTP

Act . This court has to base its judgment completely upon the opinion of

the experts in the field and cannot issue directions on its own. The courts

only interpret the provisions of law and pass the order accordingly. To

remove this fear of prosecution in the minds of the doctors, the

authorities concerned should issue procedural guidelines so that they

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may act without fear in the interest of the patient.

38. Way back in 1938 in the case of King vs. Broune (supra), it

was held that when a doctor on reasonable grounds and with adequate

knowledge in the field comes to a conclusion of probable consequences

of pregnancy that it will make the concerned victim /woman physically

and mentally wrecked then the concerned doctor/doctors, if decide for

termination of pregnancy, are proceeding with purpose of preserving the

life of women. On the anvil of the settled position of law, the best

interests parameters and the social circumstances that may be faced by

the rape victim, the decisions of Court as well as of the doctors should be

guided by the interest of the victim alone. Bearing this in mind, this

court had given liberty to the doctors of the PGIMER to go ahead with

termination of pregnancy if it is not harmful to the victim and, rather, is

required to preserve her mental and physical health. But the board

decided according to their wisdom not to go ahead with the same and

came to a conclusion that the termination of pregnancy should not be

carried out at this stage. In view of the opinion of Medical Board of

PGIMER, this court cannot pass the order to terminate the pregnancy of

petitioner No. 1.

39. This Court is of the considered opinion, in the light of the

findings in the report dated 3rd of May 2016 to the effect that there is a

possibility of harm to the patient due to social and emotional

consequences of continuation of pregnancy, then the inference can be

drawn that it will certainly cause grave injury to her physical and mental

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health. Moreover, in the order dated 13.05.2016, this Court had referred

to the judgements of the Hon’ble Apex Court and the Hon’ble Gujarat

High Court vide which the Courts have granted the permission for

termination of pregnancy beyond the prescribed period of 20 weeks

under the MTP Act. The order also contains reference to Section 5 of the

MTP Act which gives power to the doctor to go ahead with the

termination of pregnancy if the same is necessitated on account of saving

the life of the woman. Therefore, pursuant to the order of this Court,

there was no risk of prosecution of the doctors if they would have gone

ahead with the termination of pregnancy of petitioner No.1. At that

juncture, petitioner No.1 and her father - her natural guardian,were ready

to give consent for termination of pregnancy.

40. During the course of arguments, Ms. Tanu Bedi, amicus

curiae submitted that the petitioners come from area nearer to Delhi and

she may be referred to AIIMS for exploring further possibilities of

termination of pregnancy in view of the advancement in medical

sciences.

41. I would request Director of AIIMS to constitute another

medical board of equivalent or Larger number of doctors as of the

PGIMER to explore the possibility of termination of pregnancy. The

Court requests the Director of AIIMS to do the needful as soon as

possible and inform the Court about the actions taken. The petitioners

will be at liberty to appear before the medical board of AIIMS at the

earliest possible. The medical experts of AIIMS are further requested to

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provide all the facilities including counselling etc. and explore the

possibility for carrying out the termination of pregnancy if possible or

other option in the best interest of the petitioner-victim. They are also

requested to reserve a special room for petitioner No.1 and her family, as

required at the appropriate time. In case the Board rules out the

termination at this stage and petitioner No. 1 is required to take the

pregnancy to its full term and the petitioners inform the Board about

their unwillingness to keep the child, efforts should be made to make

arrangements for the adoption of child by involving the concerned

officials from Central Adoption Resource Authority (CARA). All the

expenses incurred in this regard shall be borne by the department of

health and family welfare, Haryana. The State of Haryana is directed to

tentatively deposit `50,000/- as expenses forthwith with the authorities

of AIIMS. If the amount of expenses exceeds, the same shall also be

payable by the Health Department, Government of Haryana.

42. In view of the foregoing discussion, interim directions are

issued as under:

(i) Principal Secretary, Department of Health & Family

Welfare, Government of Haryana, shall deposit a sum

of `5000/- per month in the account of petitioner No.

1 for food and medical expenses. The deposit shall be

made on or before 7th of each calendar month w.e.f.

01.06.2016 for one year.

(ii) The Chief Medical Officer, Nuh and the Medical

Superintendent of Civil Hospital-cum-SHKM

Government Medical College Malhar shall depute a

senior obstetrician/ gynecologist to examine petitioner

No. 1 from time to time and give proper advice in the

matter of medicine and due medical facilities of

health professionals i.e nurses etc.. This will be in

addition to the help and assistance to be provided to

Petitioner No. 1 by AIIMS, New Delhi.

(iii) The Medical Superintendent of AIIMS shall also

provide the adequate medical help as aforesaid to

victim-petitioner No. 1.

(iv) Whenever Petitioner No. 1 visits for medical checkup

and counselling , the concerned doctors shall deal

with her sympathetically. The counselling shall be

provided to her regularly as per the mental health of

petitioner No. 1 and the requirement for the same in

view of the alleged threat of suicide by her.

(v) The State of Haryana shall also deposit an amount of

Rs.5 lakh in fixed deposit in the name of petitioner

No. 1 as damages and expenses as the officers at the

helm of affairs failed to act with due diligence. This

amount will be in addition to the other claim of

petitioner No. 1 under the provisions of law. The said

amount shall remain in fixed deposit in a scheduled

Bank; however, the interest accruing on it can be paid

to petitioner No.1 only after 31.06.2017, by the

concerned bank, if demanded by petitioner No. 1.

(vi) It is clarified that the amounts awarded by this Court

are in addition to the entitlement as per provisions of

Code of Criminal Procedure.

(vii) This Court has already issued directions in various

cases as Kavita, Vijender and Bashir Khan (supra),

referred in the earlier part of the judgement. It is

emphasized that each of those directions should also

be followed in letter and spirit.

(viii) The Central Government is advised to consider

making amendments to the Medical Termination Of

Pregnancy Act, 1971 and clarify in so many words to

the doctors that they will not be unnecessarily

prosecuted if they act in accordance with the rules in

good faith to save the life of a victim of rape or to

prevent grave injury to her physical and mental

health. Termination of pregnancy in good faith which

results from crime is otherwise permitted under the

provision of MTP Act.

(ix) Seminars for investigating agencies, doctors, lawyers

and judicial officers who have occasion to deal with

such cases should be organized periodically. They

should be sensitized about the urgency and immediate

need of counselling and other medical assistance

required to a rape victim. The respective departments

having control over these agencies should regularly

update its officers/officials about the legal provisions

and settled law on the subject.

(x) The Refresher Courses for the members of the

Superior and Subordinate Judiciary of the States of

Punjab, Haryana and U.T.Chandigarh be held to make

them aware of the provisions of the MTP Act and

urgency in such cases. In order to ensure that if any

case is brought before the gestation period reaches 20

weeks, victim be informed about her choice to seek

termination at the earliest.

(xi) The copy of this judgment be sent to the offices of

Advocate Generals of Punjab and Haryana and the

Standing Counsel for U.T., in order to ensure that if,

and when, any case is brought to Court for passing of

any orders under the MTP Act, the said case can be

determined on the first day itself by sending the

woman to the medical board immediately for quick

action if possible under the provisions of law. The

need for filing of reply should not arise so as to avoid

wasting of precious time available with the pregnant

victim.

(xii) The Registry is directed not to mention the name of

rape victim in the cause list, judgment order, but they

may refer to her name by mentioning the first

alphabet of her name.

(xiii) The Counsel representing the victim of rape are also

requested not to disclose the identity of victim in the

petition in the head-note of petition. They may also

write the first alphabet of name of the victim and may

quote 'name withheld' in particulars.

43. Taking the facts and circumstances of the case into account,

this Court holds that the prayer of the petitioners for the termination of

pregnancy of petitioner No. 1 cannot be granted at this stage in view of

the medical reports so far submitted before this Court.

44. As an abundant caution and leaving no stone unturned to

time out some solution to the woes of a hapless victim heard in this

Court, this Court requests the authorities of AIIMS, New Delhi to reassess

the possibility of termination of pregnancy of the victim in this

case and take a call keeping in mind the advancement in medical

sciences and the spirit behind the MTP Act. The Medical Board of

AIIMS, New Delhi may take decision in good faith in the best interest of

the victim of crime.

45. Though, this Court has issued some directions in the interest

of the victim as regards the care and attention to be given to her during

her pregnancy and other procedure, if any, carried out by the medical

expert, for the post-delivery period, the directions issued by this Court

in the present case and in other cases involving similar issue to the

concerned authorities are not exhaustive and monitoring of these

directions by this Court is necessary as it has come into notice of this

Court during the hearing of this case that the same are not being

implemented faithfully.

46. Disposed of in the aforementioned terms.

47. To come up on 07.07.2016 for further proceedings.

48. Before parting with this judgment, I would like to place on

record my appreciation to Ms. Tanu Bedi, amicus curiae for the

assistance rendered to this Court.

49. Registry is directed to seal the audio-recording CD

submitted by Ms. Tanu Bedi and be kept in a safe custody and copy of

the same shall not be supplied to anyone.

50. Copy of this judgment be given to the petitioners free of

costs on urgent basis.

51. It is made clear that nothing observed herein will have any

bearance on the decision of the criminal case and the court concerned

will adjudicate the case on its own merits.

52. Registry is directed to send a copy of this judgment to the

following for necessary compliance:

(i) Director and Medical Superintendent, AIIMS, New Delhi

through FAX and e.mail.

(ii) All the judicial officers in the States of Punjab and Haryana

and U.T. Chandigarh.

(iii) The Director Generals of Police of both the States of Punjab

and Haryana and Inspector General of Police, U.T. for

circulation to the Senior Superintendents of Police.

(iv) Advocate Generals of Punjab and Haryana and Standing

Counsel of U.T. Chandigarh.

(v) Bar Council of Punjab and Haryana and Bar Association,

Punjab and Haryana High Court, Chandigarh.

30.05.2016 (Paramjeet Singh Dhaliwal)

parveen kumar Judge