Afr High Court
Case Details
1 2025:CGHC:15486 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR 1 - Abc S/o Def Aged About 40 Years R/o Xyz (C.G.) WPC No. 1637 of 2025 versus ... Petitioner(s) 1 - State Of Chhattisgarh Through Secretary, Department Of Health And Family Welfare Mantralaya, Mahanadi Bhawan, Atal Nagar Nawa Raipur, District Raipur (C.G.) 2 - Chhattisgarh Institute Of Medical Science Bilaspur Through Its Chief Medical Officer, Chhattisgarh Institute Of Medical Science, Bilaspur, District- Bilaspur (C.G.) ... Respondent(s) (Cause-title taken from the Case Information System) For Petitioner(s) : Mr. Harikesh Sharma, Advocate appearing on behalf of Mr. Vikas Kumar Pandey, Advocate For State
Legal Reasoning
“13. Having perused the medical report (relevant extracts whereof have been reproduced hereinabove), 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.” 11.The aforesaid judgment in the case of “X v. Union of India & others” the request for termination of pregnancy was in a case where the pregnancy was of more than 20 weeks. 12. The Hon'ble Supreme Court further in the recent past have permitted termination of pregnancy in matters, where the pregnancy was more than 20 weeks. A few judgments of the Hon'ble Supreme Court are 7 reported in 2017 (3) SCC 458 (X and others v. Union of India and others), 2017 (3) SCC 462 (Meera Santosh Pal and others v. Union of India and others), AIR 2017 SC 3931 (Tapasya Umesh Pisal v. Union of India and others) and AIR 2017 SC 4037 (Mrs. A v. Union of India and others). In all these cases the age of the fetus were more than 20 weeks and taking into consideration the over all condition of the victim, the Hon'ble Supreme Court permitted termination of pregnancy. 13. Given the aforesaid facts and circumstances of the case and referring to the judgment of the Hon'ble Supreme Court in the case of “A v. Union of India” 2018 (14) SCC 75 permitted termination of pregnancy at the stage where the victim was carrying for around 26 weeks. 14. Hon’ble Supreme Court in case of “Sarmishtha Chakrabortty and Another v. Union of India” 2018 (13) SCC 339 has considered the medical report and held that unless the pregnancy was terminated, the life of the mother and that of the baby to be borne would be in great danger and, therefore, permitted termination of the pregnancy. 15. In the case of X vs. The Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and Ors., reported in AIR 2022 SC 4917; Hon’ble Supreme Court, in another three-judge Bench lead by Dr. D.Y. Chandrachud, J. (as the learned Chief Justice then was) observed that a woman can become pregnant by choice irrespective of her marital status. In case the pregnancy is warranted, it is equally shared by both the partners. However, in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognizes and protects the right of a woman to 8 undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion. 16. Hon’ble Supreme Court in case of XYZ vs. the State of Gujarat and Ors., reported in MANU/SCOR/113703/2023, has held as under : “9. It is significant to note that the High Court has not taken into consideration the relevant facts that the appellant was pregnant for 25 weeks and 6 days +/- 2 weeks and the weight of foetus was around 914 grams as per ultra-sonography report dated 10.08.2023. The report further stated that although there is no congenital abnormality in the foetus, the medical termination of the pregnancy could be done only if the Court permits, after taking the consent of the appellant and explaining potential risk to maternal health. However, the following paragraphs of the report have not been noted by the High Court: “5. At present the survivor is clinically fit for above mentioned procedure. 6. The Medical Termination of Pregnancy would not adversely affect child bearing capacity and General Health of the Survivor in future.” 10. We find that in the absence of even noticing the aforesaid portion of the report, the High Court was not right in simply holding that “the age of the foetus is almost 27 weeks as on 17.08.2023 and considering the statements made by the learned advocate for the petitioner-victim and the averments made in the application the petition for medical termination of pregnancy stands rejected”, which, in our view is ex facie contradictory. Being aggrieved by the said order the appellant has knocked the doors of this Court seeking expeditious relief. xxx 18. In the context of abortion, the right of xxx xxx xxx 9
Arguments
: Mr. Satish Gupta, Government Advocate SB- Hon'ble Shri Justice Amitendra Kishore Prasad 02.04.2025 Order On Board 1. To give birth to an unwanted child or not is the question for determination in this Writ Petition. 2. The petitioner is a mentally retarded women, through her sister, is before this Court, seeking Medical Termination of Pregnancy of an unwanted child in which she was ravished in a sexual incident. The would be mother is seeking a life of dignity and for the said purpose, she is seeking intervention of this Court for passing a suitable order so that she may be allowed to abort the unwanted child and she may live a dignified life without there being any trauma of such an incident. 2 3. The present writ petition has been filed seeking permission to terminate the pregnancy of the sister of the petitioner. The sister of the petitioner is suffering from Mental disorder known as IDD + Epilepsy and taking advantage of the same, one Mahendra Dhiwar, a resident of the same village, illured and has deceived the sister of petitioner developing physical relationship while promising to marry her. When this fact came to the knowledge of the petitioner and her family members, they went to Mahendra Dhiwar, asked him to marry the victim, but he refused to marry and upon finding this, the FIR has been lodged by the mother of the petitioner against Mahendra Dhiwar at Police Station Ratanpur, Bilaspur bearing Crime No. 36/2025 for commission of the offence punishable under Section 64(2)(k) of the BNSS, 2023. 4. After lodging FIR, the victim has subjected to medical examination in which, it was found that she was pregnant and on further investigation it was found that she was carrying pregnancy of around 21 weeks. The petitioner herein i.e. the sister of the victim has moved the present writ petition seeking for the termination of pregnancy. The Doctors at the first instance showed their reluctance considering the fact that the matter is already seized in a criminal case for an offence under rape. Further the age of the fetus also did not legally permit the medical practitioners to perform the termination of pregnancy. It is for this reason that the petitioner has been forced to file the present writ petition. 5. On 27.03.2025 this Court had directed Chhattisgarh Institute of Medical Science (CIMS), Bilaspur i.e. the respondent No. 2 to get the victim examined and to give a report on the health of the victim, the condition 3 of the fetus and also whether the situation was such that the victim could be allowed to terminate her pregnancy. 6. The victim was thereafter examined by team of 6 Doctors and a report in this regard has been submitted vide report dated 29.03.2025. In the course of the physical examination of the victim, the team of Doctors did find that the victim was not mentally sound. The clinical examination shows that the victim was carrying pregnancy of 22 weeks, whereas under the USG test it was found that the victim was pregnant of 22 weeks and 1 day. Though no serious abnormalities were detected both so far as the victim is concerned as also the fetus is concerned. The Physical and mental status assessment of the patient suggests that patient is medically fit to undergo Medical Termination of Pregnancy, however, the risks and complications associated with the procedure will need to be accounted for, as with all Medical Termination of Pregnancy (MTP) cases. The team of Doctors also counseled the parents and they were firm on their stand that they were interested in getting the pregnancy terminated. 7. So far as the proceedings for a termination of pregnancy is concerned, the law has been laid down in the Medical Termination of Pregnancy Act, 1979. 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 hereinunder: “3. When Pregnancies may be terminated by registered medical practitioners.--(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of 4 this Act. (2) Subject to the provisions of subsection (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that,- (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation 1.- Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in subsection (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment. (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a [mentally ill person], shall be 5 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.” 8. From the aforesaid provisions it is evidently clear that it is not that termination of pregnancy was not impermissible at all. It was permissible in the given circumstances as is envisaged under Section 3. Undoubtedly, in the instant case the the victim is not mentally sound. The continuation of the pregnancy can lead to complication at a later stage both so far as the physical condition of the victim as also the psychological and mental condition is concerned. In the case of “Suchita Srivastav & Another v. Chandigarh Administration”, reported in 2009 (9) SCC 1 the Hon'ble Supreme Court in paragraphs No. 36 & 37 has held as under: “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 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 6 assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.” 9. In the aforementioned case i.e. Suchita Srivastava (Supra) Hon’ble Supreme Court expressed that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution. She has a sacrosanct right to her bodily integrity. 10. Likewise, again in the case of “X v. Union of India & others”, reported in 2016 (14) SCC 382 in paragraph No. 13 it has been held as under:
Decision
dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is 5 susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women. 19. The whole object of preferring a Writ Petition under Article 226 of the Constitution of India is to engage with the extraordinary discretionary jurisdiction of the High Court in exercise of its constitutional power. Such a power is vested with the constitutional courts and discretion has to be exercised judiciously and having regard to the facts of the case and by taking into consideration the relevant facts while leaving out irrelevant considerations and not vice versa. 20. In view of the above discussion and on perusal of the latest medical report we permit the appellant to terminate her pregnancy. We direct the appellant to remain present before the KMCRI Hospital, Bharuch, Gujarat during the course of the day, today (21.08.2023) or 09:00 A.M. tomorrow (22.08.2023) as she deems fit so that the termination of pregnancy could be carried out preferably during the course of the day today (21.08.2023) or tomorrow i.e. 22.08.2023.” 17. More recently, High Court of Madhya Pradesh in reference (Suo Moto) vs. State of Madhya Pradesh and Others, reported in 2025 SCC MP 1533 has held as under : “3. Subsequently, the learned Single Judge, Principal Seat at Jabalpur in Writ Petition No.3491 of 2025 vide order dated 28.01.2025 while dealing with matter listed 10 before the Bench in compliance with the directions of aforesaid order dated 12.12.2024 passed in Writ Petition No. 39431 of 2024 by Single Bench at Indore, has held at para no. 5 read with para no.6 that woman, who are survivors of sexual assault or rape or incest, can get their pregnancy terminated upto 24 weeks and order from the Court is not required for termination of pregnancy and pregnancy can be terminated under the provisions of the MTP Act. The learned Single Bench at Jabalpur further held that permission is only required in cases where pregnancy is more than 24 weeks old as termination of such pregnancy is not permissible under Medical Termination of Pregnancy Act, 1971 and in said case, High Court has to exercise its jurisdiction under Article 226 of the Constitution of India for passing orders for termination of pregnancy. The relevant paras of judgment are as follows:- “2. On going through Provisions of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred as MTP Act 1971), it is found that Section 3 is enabling provision to terminate pregnancy of conditions mentioned in said section. Section 3 protects Doctor who terminates pregnancy from any prosecution. Section 3(2)(A) of MTP Act, 1971 pregnancy can be terminated by registered Medical Practitioner where length of pregnancy does not exceed twenty weeks. Section 3(2)(B) of MTP Act, 1971, pregnancy may be terminated where length of pregnancy does not exceed 24 weeks by two registered Medical Practitioners (RMP). Termination under 3(2)(A) and 3(2)(B) shall only take place, if opinion is formed under Section 3(2)(i) or under Section 3(2)(ii), which are quoted as under:- "(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or 11 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." 3. Further explanation 2 of Section 3(2) of MTP Act, 1971 lays down that any pregnancy which is alleged by pregnant woman to have been caused by rape, the anguish caused by pregnancy shall be presumed to constitute a grave injury to mental health of a pregnant woman. 4. Considering the Provisions of MTP Act 1971, pregnancy can be terminated by RMP without there being an order of the Court, if case falls within purview of Section 3(2)(A) or under Section 5(1) or under Section 3(2)(B) of MTP Act, 1971. 5. Categories of woman has also been mentioned in Rule 3B of Medical Termination of Pregnancy Rules, who can get their pregnancy terminated upto 24 weeks i.e. woman who are survivors of sexual assault or rape or incest are covered. 6. In all aforesaid cases, order from the Court is not required for termination of pregnancy. Pregnancy can be terminated in all aforesaid cases which are covered within the purview of the Act. Permission from the Court is only required in cases where pregnancy is more than 24 weeks old. Termination of such pregnancy is not permissible under Medical Termination of Pregnancy Act, 1971. In said cases, High Court has to exercise its jurisdiction under Article 226 of the Constitution of India for passing orders for termination of pregnancy.” xxx xxx xxx xxx 5. Accordingly, in order to remove the anomaly existing between the learned Single Bench at Indore and Jabalpur in relation to 12 controversy in hand, the questions posed before this Court are :- (a) what is the permissible procedure for the purpose of termination of pregnancy by the registered medical practitioner under the provisions of Medical Termination of Pregnancy Act, 1971 and rules framed thereunder?; and (b) whether resort to judicial proceedings under Article 226 of the Constitution of India is necessitated for the termination of pregnancy in each and every case? 8. The aforesaid Rule 3B(a) of the Medical Termination of Pregnancy Rules, 2003 provides that survivors of sexual assault or rape or incest are considered eligible for termination of pregnancy under clause (b) of sub section (2) Section 3 of the Act, which exceeds 20 weeks but does not exceed 24 weeks. 9. Similarly, a pregnancy may be terminated where the length of the pregnancy does not exceed twenty weeks by a registered medical practitioner and where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as prescribed in aforesaid Rule 3B(a) of the Medical Termination of Pregnancy Rules, 2003, by two registered medical practitioners, when he/they is/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.” xxx xxx xxx 12.This Court is of the considered opinion that in case of survivors of sexual assault or rape or incest, where the pregnancy exceeds 24 weeks, permission from the xxx 13 High Court is required and termination of such pregnancy is not permissible under Medical Termination of Pregnancy Act, 1971. In such cases, High Court may exercise its jurisdiction under Article 226 of the Constitution of India for passing orders for termination of pregnancy;” 18. In Indian society, within the institution of marriage, generally pregnancy is a reason for joy and celebration and of great expectation, not only for the couple but also for their families and friends. By contrast, pregnancy outside marriage, in most cases, is injurious, particularly, after a sexual assault/abuse and is a cause for stress and trauma affecting both the physical and mental health of the pregnant woman the victim. Sexual assault or abuse of a woman is itself distressing and sexual abuse resulting in pregnancy compounds the injury. This is because such a pregnancy is not a voluntary or mindful pregnancy. A fact which cannot be brushed aside and which came up for consideration before this Court was the mental condition of victim. If the victim is permitted to undergo the entire process of pregnancy and delivery, it can lead to great physical, mental and psychological effect, not only on the victim, but also so far as the fetus is concerned. Coupled with the fact that the medical examination of the victim has also found that she is not mentally sound, which again is at times quite serious and can lead to further complication. 19. Considering the fact that the victim of rape must be given that much of liberty and right to decide whether she should continue with the pregnancy or she should be permitted to terminate the pregnancy. For all the aforesaid reasons, this Court is inclined to allow the instant present writ petition also in the given factual backdrop of the case. 20. The victim since she is already admitted at the respondent No.2- 14 Institute, the team of Doctors which had examined her and who have submitted the report are directed to ensure that the victim is subjected to termination of pregnancy at the earliest without further delay. The DNA sample of the fetus shall also be taken and preserved for further evidence in the same manner as provided under Rule 6(6) of the Protection of Children from Sexual Offences Rules, 2020 as the criminal case against the accused is still pending. Let this exercise be carried without any further delay. 21. It is further directed that the privacy of the victim be maintained strictly in view of statutory provisions of Section 5A of the Medical Termination of Pregnancy Act 1971. 22. With the aforesaid observations, the present writ petition stands allowed and disposed of. Digitally signed by SHAYNA KADRI Shayna Sd/- (Amitendra Kishore Prasad) Judge