Ku. B.T. v. State Of Chhattisgarh
NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No.
Ku. B.T. D/o G.T. Aged About 16 Years Through Legal Guardian Father Gajral Toppa, R/o Pidchod, Police Station Lohattar, District North Bastar Kanker Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of Health And Family Welfare, Mahanadi Bhawan Mantralaya, Atal Nagar, Naya Raipur , District Raipur Chhattisgarh.
2. Collector North Bastar Kanker District North Bastar Kanker Chhattisgarh.
3. Civil Surgeon District Hospital , Kanker, District North Bastar Kanker Chhattisgarh.
4. Block Medical Officer Community Health Centre, Bhanupratappur, District North Bastar Kanker Chhattisgarh.
5. Block Medical Officer Community Health Centre, Durgukondal, District North Bastar Kanker Chhattisgarh.
6. Station House Officer Police Station Lohattar, District North Bastar Kanker Chhattisgarh.
---- Respondents For Petitioner :
Mr. Kishore Narayan, Advocate For State :
Mr. V. R. Tiwari, Addl. A.G.
Hon'ble Shri Justice P. Sam Koshy Order on Board 03/02/2020 1.
This Court vide previous order dated 03.02.2020 had asked the respondent No.3-Civil Surgeon, District Hospital, Kanker to submit a report so far as the health condition of the petitioner is concerned. 2.
State counsel has filed the reply along with the report of the Medical Officer (Annexure P/1), where the respondent No.3 has given a report that the termination of pregnancy can be carried out on the petitioner. 3.
The facts in brief is that, the petitioner a minor girl was allured by an accused Parab Jade and was subjected to rape. That, a report was lodged and a case under Sections 376 & 506 of the Indian Penal
Code and also under Sections 4 & 6 of the POCSO Act has been registered against the accused Parab Jade. As a result of the petitioner being subjected to rape, she has got conceived and as of now is pregnant of 11 weeks and 1 day as on 31.01.2020. The petitioner has approached this Court seeking for termination of the pregnancy.
4.
The petitioner has relied upon an order passed by this Court in WPC No. 2869/2019, decided on 27.08.2019 and WPC No. 3674/2019, decided on 23.10.2019 in support of her contention. 5.
The State counsel as has been held earlier on the previous date was directed to get the medical opinion so far as the health condition of the petitioner is concerned. The respondent No.3 has since submitted their report showing that the petitioner can be permitted to termination of pregnancy.
6.
It would be relevant at this juncture to refer to paragraph Nos. 6 to 9 of the judgment passed in WPC No. 2869/2019 on 27.08.2019, which are as under:- "6. The Supreme Court in the case of Meera Santosh Pal & others Versus Union of India and others {(2017) 3 SCC 462} has reiterated the view taken in the case of Suchita Srivastava Vs. Chandigarh Admn {(2009) 9 SCC 1} and has observed thus in para 9, which is reproduced hereunder:- "9.
In Suchita Srivastava v. Chandigarh Admn {(2009) 9 SCC 1} a Bench of three Judges held "a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution". The Court there dealt with the importance of the consent of the pregnant woman as an essential requirement for proceeding with the termination of pregnancy. The Court observed as follows :- "22. 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 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." 7.
Reading of section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'the Act of 1971') makes it clear that where length of pregnancy does not exceed 20 weeks and not less than two registered medical practitioners have formed an opinion in good faith that the continuance of pregnancy would involve a risk to the life of pregnant woman or grave injury to her physical or mental health, the pregnancy can be terminated by a registered medical practitioner. This act of medical practitioner, if aforesaid conditions are satisfied, will not attract the penal provisions mentioned in Indian Penal Code. In other words, such registered medical practitioner shall not be guilty of any offence under the IPC or under any other law for the time being in force if conditions mentioned in Section 3 or Section 5 of the Act are satisfied.
8.
Explanation 1 of the Act of 1971 purports that when 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. Sub section 4(a) of section 3 further contemplates that no pregnancy of a woman, who has not attained the age of eighteen years, for termination of the pregnancy consent has to be obtained in writing from her guardian.
9.
The instant petition has been preferred by the mother of the victim being her natural guardian and the victim has also been made petitioner No.1 and the report which is called from the team of the two medical practitioner of Civil Surgeon, Main Hospital, Mahasamund shows that the patient is fit to undergo termination of pregnancy and the pregnancy is of 17 weeks 01 days." 7.
Based on the aforesaid findings, the Coordinate Bench of this Court had allowed the writ petition and permitted the petitioner for terminating the pregnancy.
8.
Bare perusal of the facts that the present case would show that the said judgment of this Court in WPC No. 2869/2019 is on similar footing and the condition of the petitioner therein and the petitioner herein also are almost similar except for the period of pregnancy. In the instant case the pregnancy is of a lesser duration as compared to the petitioner in that writ petition.
9.
In view of the aforesaid facts and circumstances of the case and also taking note of the decision of this Court rendered in WPC No. 2869/2019 decided on 27.08.2019, this Court is also inclined to take the same stand and allow the present writ petition permitting the petitioner to undergo with the termination of her pregnancy. 10.
Accordingly, it is directed that let the petitioner approach the respondent No.3 on 4th/5th of February, 2020 and subsequently the respondent No.3 in turn shall ensure that the petitioner is subjected to medical termination under the supervision of two registered medical practitioners preferably two senior Doctors available in the said district after obtaining due consent of the petitioner as well as her guardian. The DNA sample of the fetus shall also be taken and preserved for further evidence as the criminal case against the accused is still pending. Let this exercise be carried without any further delay. 11.
With the aforesaid observations, the present writ petition stands allowed and disposed of.
12.
Certified copy today.
Sd/- (P. Sam Koshy) Judge Ved