1 - Xyz Nil v. 1 - State Of Chhattisgarh Through Secretary, Ministry Of Public Health And Welfare, Mahandi
Case Details
1 2025:CGHC:6021 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.02.03 14:51:28 +0530 WPC No. 749 of 2025 1 - Xyz Nil. Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Ministry Of Public Health And Welfare, Mahandi Bhawan, Naya Raipur, District Raipur, Chhattisgarh 2 - Chairman State Medical Board Raipur, District Raipur, Chhattisgarh 3 - Chairman District Medical Board Mungeli, District Mungeli, Chhattisgarh 4 - The Chief Medical And Health Officer District- Mungeli, Chhattisgarh 5 - Head Officer Of Department Gynaecologist (H.O.D.) Gynaic District Hospital, Mungeli, District- Mungeli, Chhattisgarh 6 - Station House Officer Police Station Lormi, District- Mungeli, Chhattisgarh Respondent(s) For Petitioner(s)
Legal Reasoning
13. Having perused the medical report (relevant extracts whereof have been reproduced herein above), we are satisfied that a clear finding has been recorded by the Medical Board, that the risk to the petitioner of continuation of her pregnancy can gravely endanger her physical and mental health. The Medical Board has also expressed an advice that the patient should not continue with the pregnancy. In view of the findings recorded in Para 6 of the report, coupled with the recommendation and advice tendered by the Medical Board, we are satisfied that it is permissible to allow the petitioner to terminate her pregnancy in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. In view of the above, we grant liberty to the petitioner, if she is so advised, to terminate her pregnancy. 7. Similar proposition has been laid down by the Supreme Court in the matter of X and others v. Union of India and others3 and also in the matter of Meera Santosh Pal and others v Union of India and others4. 2 3 4
Arguments
: Mr. Ankur Diwan and Mr. Anurag Kumar For State : Mr. Praveen Das, Dy. GA Kashyap, Advocate 2 (HON’BLE SHRI JUSTICE BIBHU DATTA GURU) Order on Board 03/02/2025 1. Petitioner is a victim of forcible sexual intercourse committed with her by the accused of Cr.No. 149/2024 registered at police station Lormi, District-Mungeli. As a result of said forcible sexual intercourse, the petitioner is carrying pregnancy, which she wants to abort, as the said pregnancy is causing her anguish and she does not want to have a child born out of a person who has ravished her without her consent and has subjected her to humility and embarrassment before the society. 2. This petition was filed on 30/01/2025 and advance copy of the same was supplied to the learned counsel for the State. On which, the State counsel sought medical examination report in respect of the petitioner from the Chief Medical & Health Officer, Mungeli vide its letter dated 31/01/2025. In response to the said letter, the CMHO constituted the Medical Board, who after examining the petitioner, submitted its report on 01/02/2025 stating that the pregnancy can be terminated as the petitioner is physically and mentally fit. The said report has been sent by the CMHO, Mungeli to the learned State counsel today i.e. on 03/02/2025, the copy of the same has been produced before this Court during the course of argument. The same is taken on record. 3. 4. I have heard learned counsel appearing for the parties and perused the record. So far as the proceedings for termination of pregnancy are concerned, the law in this regard has been framed in the Medical Termination of Pregnancy Act, 1971 {as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021} (for short ‘the Act’) Section 3 of the said Act specifically deals with the conditions. which are required and which have to be adhered to. For ready reference, Section 3 of the said Act is reproduced herein under : 3 medical “3. When Pregnancies may be terminated by practitioners.–(1) registered Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the 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 any serious physical or mental abnormality. Explanation 1.-For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.-For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act. (2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner 4 where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. The Medical Board shall consist of the (2D) following, namely:- (a) a Gynaecologist; (b) a Paediatrician; (c) a Radiologist or Sonologist: and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.” (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 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. 5. In this regard, the Supreme Court in Suchita Srivastava and Another v Chandigarh Administration1 has laid down the guidelines based on the principle of “best interests” theory and held that the Court is required to ascertain the course of action which would serve the best interests of the person in question. Paras 36 and 37 read thus : 36. Courts in other common law jurisdictions have developed two distinct standards while exercising “parens patriae” jurisdiction for the purpose of making reproductive decisions on behalf of mentally retarded 1 (2009) 9 SCC 1 5 persons. These two standards are the “best interests” test and the “substituted judgment” test. 37. As evident from its literal description, the “best interests” test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights. 6. The Supreme Court in the matter of X v Union of India and others2 has clearly held that termination of pregnancy after 20 weeks to save life of pregnant woman (an alleged rape victim) in case of grave danger to physical and mental health of the said woman, is permissible, and observed as under :