1. The victim has been produced before this Court by Ms. Divya Upadhyay, Lady Constable No- 2906 for in-camera proceedings.
2. The petitioner, who is the elder sister of the victim, is also present in person along with her husband.
3. This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking following relief:-
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4. This case involves an unfortunate rape victim, aged about 16 years, whose sister seeks permission for termination of her pregnancy caused by the accused- Putto Gurjar.
5. The case of the petitioner in brief is that her minor sister victim, aged about 16 years, was residing with her brother and his wife at her brother's house, situated at Bhanwarpura. Her brother works under accused Putto Singh Gurjar and is alcoholic. Once, while the victim was going to deliver food to her brother at the agricultural field, accused Putto Singh Gurjar caught hold her and committed rape with her forcibly. Thereafter, when her brother and his wife went for labour work, accused Puttosingh Gurjar, finding the victim alone used to came to her house (Pator) and by extending threat, used to commit rape with her forcibly, due to which she is three months' pregnant. Because of the fear of accused Puttosingh Gurjar, for the last two months victim is residing with her sister at Motijheel Pahadiya and after disclosing the entire incident to her elder sister, on 8/5/2023, she along with her elder sister went to the Police Station Bhanwarpura, District Gwalior and made a written complaint against the accused Putto Singh Gurjar, on the basis of which, an FIR bearing Crime No.20/2023 was registered against him for the offence punishable under Sections 376, 376 (2) (n) and 506 of IPC, Sections 3, 4 of Prevention of Children from Sexual Offences Act, 2012 and Sections 3(2)(v), 3(1) (w ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
6. This Court by order dated 18/5/2023 directed the CMHO, District Gwalior to constitute a Medical Board with experts in the field concerned and an opinion be sought from the Medical Board with regard to the medical termination of pregnancy and, accordingly, a report dated 19/5/2023 has been submitted by the Medical Board, consisting of Chairman, District Medical Board Gwalior and Dr. Reena Saxena, Gynecologist, District Hospital Morar, Dr. Shraddha Goswami, Anesthesia Specialist, District Hospital Morar and Dr. Naresh Lakshwani, Medicine Specialist, District Hospital Morar, in a sealed cover, which is taken on record. According to the said report, the sister of the petitioner is carrying pregnancy of 24 weeks and her general condition is average. An USG was conducted on the victim and single live intra uteran fetus of MGA – 20 weeks 3 days + - 10 days was found. The Medical Board has given an opinion that on the basis of the tests results, it would be appropriate to conduct termination of pregnancy of the victim at the earliest by taking all precautions. The opinion given by the Medical Board reads as under:-
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7. Thus, the relevant factors which are to be taken into consideration while deciding the present case are the medical report submitted by the Medical Board dated 19/5/2023, the future of a minor girl aged 16 years, who is carrying a foetus of a rapist, the trauma she will have to face throughout her life while raising such child and not only this, but also the fact that the child will also have to live his/her entire life with such social stigma. Relevant provisions of the Medical Termination of Pregnancy Act are as under:-
“3. When Pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are. Of opinion, formed in good faith,that,-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury 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 tothe 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 sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.
(a), no pregnancy shall be terminated except with the consent of the pregnant woman.
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. 3as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.”
8. In the present case, although the victim being minor is legally not in a position to decide anything for herself, even then she specifically expressed her desire that she wants to terminate her pregnancy. Her elder sister has although expressed her desire through her counsel that in case a live child will born, she is ready to adopt the same, but she has also specifically given her consent for termination of victim's pregnancy.
9. In a similar case, the Indore Bench of this Court by its order dated 21.4.2018 passed in Writ Petition No.7701/2018 (Mukesh Patidar Vs. State of M.P. and others), in the light of a judgment of Hon'ble Supreme Court and in similar set of facts after taking note of the medical report submitted by the Doctors in which the girl aged 12 years was carrying a child in her womb of 29 weeks, permitted the medical termination of pregnancy of a minor rape victim and held as under:-
10- The respondents are directed to carry out termination of pregnancy immediately. The Dean, MGM Medical College and M.Y. Hospital, Indore is directed to admit the child (prosecutrix) today itself as she is present and termination of pregnancy be carried out on 22/04/2018 and if tomorrow is the holiday being Sunday, the termination be carried out on 23/04/2018.
11- It is needless to mention that the Head of the Department of Gynecologist, Head of the Department of Anesthesia and all other specialist will remain present at the time termination of pregnancy is carrying out, as the girl is of tender age and as their is a threat of life of the girl also. Not only this, after the termination of pregnancy is carrying out, the State of Madhya Pradesh shall ensure post operative care of the girl (prosecutrix).
10. In view of the above, the prayer made by the petitioner is allowed. Let an interdisciplinary team of doctors be constituted by the Dean of G.R. Medical College as early as possible and they shall carry out the necessary procedure of termination of pregnancy on 26 th May, 2023, when the victim girl (prosecutrix) shall be produced by the Child Welfare Committee, District Gwalior and the petitioner, who is her elder sister, shall appear before the team of the doctors and fill necessary consent forms. It is also directed that senior doctor of the Department of Medicine and senior doctor of the Department of Cardiology shall examine the health condition of the victim girl (prosecutrix) before termination of pregnancy of victim girl (prosecutrix). It is directed that Dean of G.R. Medical College, Gwalior shall constitute team of senior and experienced doctors for the sake of humanity. It is further directed that in terms of the law laid down by Division Bench of Bombay High Court in the case of Shaikh Ayesha Khatoon Vs. Union of India, reported in 2018 SCC OnLine Bom 11, the petitioner and her sister shall be sensitized by the Committee/Medical Board about the risk factors involved in the procedure and it would be open for the petitioner's sister to undergo the procedure of medical termination of pregnancy at her own risk and consequences. It is further made clear that the doctors who have put their opinions on record shall have the immunity in the event of occurrence of any litigation arising out of the instant procedure.
11. It is further clarified that identity of the girl and if she gives birth to a live child, then parentage of the child, shall be kept a secret and shall not be revealed to anybody. This is being done looking to the future of the victim girl (prosecutrix). It is also directed that no legal claim can be put forth on the team of the doctors by the girl or her guardian as they have understood the possible complications and the team of doctors will not be liable to any legal complications arising out of such procedure. As far as the issue of probability of birth of a live foetus is concerned, if a live foetus is born & the mother does not want to keep the child, then that be given in adoption as per the rules of adoption and while giving the child in adoption, first priority to adopt the child be given to the petitioner, who is the elder sister of the victim and has also expressed her desire for the same. It is further directed that relevant department in the G.R. Medical College or its associates may carry out DNA sampling of the baby and preserve report of such DNA sampling to be produced before the competent Court where criminal case in relation to the mother's/victim's agony is pending. 12. Let the victim be taken to the Child Welfare Committee, District Gwalior with a direction to keep her present before the team of doctors, G.R. Medical College on 26th of May, 2023 for carrying out medical termination of pregnancy.
13. With the aforesaid direction, this writ petition is disposed of. No costs.
14. Let a copy of this order be provided to learned Government Advocate free of cost for immediate transmission to the Dean, G.R. Medical College, Gwalior.
