Case BriefsHigh Courts

“Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven”

Madhya Pradesh High Court: The instant petition was contemplated by S.K. Awasthi, J., in which the petitioner who was the father of the rape victim sought termination of pregnancy for his 14 years old daughter.

The unfortunate facts were that a girl about 14 years old was raped and because of the alleged crime, she got pregnant. The girl was 22 weeks pregnant and as per the reports she was fit for termination of pregnancy.

The Hospital in its report submitted that pre-anesthetic & medical checkup and opinion of consultant Anesthesia and Medicine, Psychiatry was required in case if the medical method of termination failed and surgical intervention was required, however, the case was suitable for termination of pregnancy under the Medical Termination of Pregnancy Act, 1971.

The counsel for the petitioner Amit Dubey submitted that the report by the competent hospital reflected that abortion could have been carried out with the permission of the Court. The relevant statutory provisions i.e. Sections 3 and 5(1) of Act, 1971, stated when pregnancies were to be terminated and one of the clauses was, ‘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 the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health’; as the girl was very young the counsel argued that the pregnancy might ruin her mental health and there was a risk to the life of the girl. It was further contended that the Act of 1971, also provided for an explanation clause i.e., ‘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.’

The counsel relied on Murugan Nayakkar v. Union of India, 2017 SCC OnLine SC 1902, where the Supreme Court granted termination of pregnancy to a 13-year-old girl who was a victim of rape and sexual abuse, the Supreme Court had held that, “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.”

The Court observed that while interpreting the provisions of Section 5 of the Act of 1971, it was to be borne in mind that principle that the section must be construed as a whole whether or not one part was a saving clause and similarly elementary rule of construction of section was made of all the parts together and that it was not permissible to omit any part of it; the whole section must be read together. Hence, the termination was granted on the said grounds.[Ritika Prajapat v. State of M.P, 2019 SCC OnLine MP 1687, decided on 18-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A writ petition was contemplated by Vivek Rusia, J. for allowing medical termination of pregnancy of the said petitioner-wife. The petitioners requested the Court for termination of pregnancy as the report of the Radiologist showed that the right kidney of fetus was not visible and there were other complications. On the basis of the aforesaid report, the treating Doctor gave an opinion that after birth, the child may not survive even for 2-3 days.

The petitioner contended that the age of fetus was more than 20 weeks therefore, under the provisions of Medical Termination of Pregnancy Act, 1971 the doctor had refused to terminate her pregnancy. The learned counsel for the petitioners had relied upon the judgment in X v. Union of India, 2016 (14) SCC 382, where the Supreme held that Section 5 of the Act laid down the exception to Section 3 if two registered Medical Practitioner gave the opinion of in good faith in respect of the termination of pregnancy to save the life of pregnant women. In the view of the aforesaid section, the Supreme Court had granted liberty to the petitioner to terminate her pregnancy. The counsel further placed reliance upon the judgment in Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC 57, where the Supreme Court had permitted termination of pregnancy when the girl was into her 24th week of pregnancy. The Court held that “it is difficult for us to refuse the permission to the petitioner to undergo medical termination of pregnancy. It is certain that the fetus, if allowed to born, would have a limited life span with serious handicaps which cannot be avoided. It appears that the baby will certainly not grow into an adult.

It was requested by the petitioner to constitute a Committee of Doctors who can suggest whether the termination of pregnancy shall be allowed or not.

Court had already ordered the competent Medical Board to examine the petitioner-wife’s health condition and verify the report submitted. To the said order, the Board submitted their opinion and suggested that such termination was not possible after 20 weeks of pregnancy. The Court further on the request of the petitioner directed the respondents to constitute a Committee of 5 senior doctors immediately and the said Committee is directed to examine the physical condition of petitioner 1 and if it is found that it is not dangerous to her life, the Committee may proceed with the termination of her pregnancy.[Roshni v. State of M.P., 2019 SCC OnLine MP 1122, decided on 06-06-2019]

Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., in his own words, departed from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 and allowed termination of 20-weeks pregnancy of a 12-year old rape victim.

The present matter was concerned with the question of allowing the termination of pregnancy of the victim child. Dr Mamata Pradhan, Chairperson of the Medical Board constituted by the Court clarified that termination of pregnancy of 20 weeks bears the serious risk, but it could be done and for that reason, the guardian of the victim girl had to give a qualified consent on fully understanding the consequences and risks involved in such termination.

After elaborate consultations with Dr Pradhan, victim’s mother (her guardian) informed the Court that there is no alternative but to get the pregnancy terminated. A. Bhowmik, Advocate for the petitioners submitted that the court may pass appropriate orders having regard to Supreme Court decision in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339 wherein reproductive choice was recognised to be an inseparable part of personal liberty protected under Article 21.

Having regard to such a situation, the High Court directed Dr Pradhan and her team to commence the procedure of termination of pregnancy of the victim. The Court observed, “Having considered the injury that might torment the mental health of this young girl, this Court has taken the undertaking made by the mother seriously. In the circumstance, the foetus be terminated forthwith, making a departure from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 for responding to the necessity created by human emergency.” The Court also recorded appreciation for B. Choudhary, Public Prosecutor and D. Sarma, Additional Government Advocate for their contribution. The matter was disposed of in the terms above. [Jhuma Roy v. State of Tripura, 2019 SCC OnLine Tri 80, Order dated 08-03-2019]