Dismissed

Xxx v. State of Chhattisgarh

Chhattisgarh HC23 Sept 2024WPC/4788/2024

Case brief

AI extract

What is this about?

In a writ petition, a minor rape victim sought abortion at 28 weeks of pregnancy. The High Court referenced the MTP Act and Supreme Court precedent regarding gestational limits. Relying on a unanimous Medical Board opinion that termination at this stage posed severe health risks to the petitioner and involved a viable fetus, the Court dismissed the petition. However, it directed the State to fund

What did the court decide?

Petitioner's petition for abortion dismissed; State directed to cover medical expenses and facilitate adoption if desired.

Xxx Vs State of Chhattisgarh — Constitutional and Fundamental Rights | Chhattisgarh HC (2024)

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2024:CGHC:37664

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPC No. 4788 of 2024

1 - XXX

... Petitioner

versus

1 - State Of Chhattisgarh Through Secretary, Ministry Of Public Health And Welfare, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh

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2 - Chairman, District Medical Board Raipur District Raipur, Chhattisgarh

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3 - Chairman, District Medical Board Balodabazar District Balodabazar, Chhattisgarh

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4 - The Chief Medical And Health Officer District Mahasamund, Chhattisgarh

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5 - Head Officer Of Department Gynaecologist (H.O.D.) Gynaic District Hospital Baloda Bazar, District Balodabazar, Chhattisgarh

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6 - Station House Officer Police Station Kasdol, District Baloda Bazar, Chhattisgarh

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... Respondents

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For Petitioner : Shri Aman Pandey, Advocate For Respondent/State : Shri Praveen Das, Dy.A.G. and Shri Keshav Gupta, G.A.

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({Hon’ble Shri Justice Sachin Singh Rajput})

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Order on Board

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24/09/2024

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Following relief has been claimed in this writ petition -

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“10.1 That, this Hon’ble Court may kindly be pleased to permit the petitioner for abortion of her womb, who is now 27 weeks pregnant.

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10.2 To kindly grant any other relief which may be deem fit in the given facts and circumstances of the instant case.”

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A minor victim was subjected to forcible sexual intercourse by the accused in Crime No.372/2024 registered at police station – Kasdol, District – Baloda Bazar for the offence punishable under Section 137 (2) of Bhartiya Nyaya Sanhit (BNS), 2023. As a result of the said act, the petitioner conceived and at present, she is carrying an advance pregnancy of 28 weeks. The petitioner came before this Court seeking claim as stated above.

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The matter came upon before this Court 20/09/2024 and this Court passed the following order -

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“The Dean, Medical College, Raipur is directed to ensure medical examination of petitioner by team of experts, one of which should be Gynecologist, and to submit report in terms of Section 3 (2) of the Act of 1971 and the Rules framed thereunder.

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Petitioner is also directed to appear along with her guardian before the Chief Medical & Health Officer, Balodabazar, District – Balodabazar – Bhatapara on 21.09.2024 at 9.00 AM and in turn Chief Medical Officer, Balodabazar shall make all necessary arrangement for examination of the petitioner at Medical College, Raipur on 21.09.2024.”

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On 23/09/2024, the report was submitted by the Medical Board with regard to medical condition of the petitioner and ultimately, this Court on 23/09/2024 passed the following order -

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“In the aforementioned facts of the case and also considering the age of pregnancy, learned State counsel is directed to ask the doctors, who examined petitioner to appear before this Court tomorrow virtually at 2.15 PM.”

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Learned counsel for the petitioner submits that since the petitioner was subjected to forcible intercourse and does not want to continue with the pregnancy, therefore the relief as claimed by the petitioner may be granted.

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Learned State counsel submits that looking to the medical report, the petitioner is at high risk to go for termination of pregnancy.

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A medical report dated 21/09/2024 is placed on record and following opinion was given by the Medical Board -

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Gestational age is 28 weeks

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Fetus is viable with no gross / obvious anomaly seen

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Patient is anemic with HB 7.2 gm.

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Patient is high risk for obstetrics / operative intervention

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It appears that in view of the order dated 23/09/2024, another medical board was constituted. The report of the medical board constituted in the light of order of this Court is placed on record. Today, the team of medical board appeared before this Court through V.C. and made submissions in the line of report submitted by them details of which is mentioned as below -

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cSBd dh dk;Zokgh fooj.k

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उपरो्ሹ वि�षयात्ቇ�त लेख है वि� मरीज xxx WPC No 4788 of 2024 ्ቛारा अपने ल्ቇभ्ቇ 28 स्቎ाह �े उपर ्ቇभ� होने ए�ं माननीय उ्ሴ न्यायालय �े विनቖኔ#शानुसार ्ቇभ� समापन �ी अनुमतित मां्ቇी ्ቇयी है। अतः उ्ሹ सቖኔभ� में ्ቇवि+त मेति,�ल बो,� �े ्ቛारा MTP हेतु Denied वि�या ्ቇया था। माननीय उ्ሴ न्यायालय �े ्ቛारा तत्संबंध में �ुछ ्ቚ्቞

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पुछे ्ቇये थे ए�ं विन्ቓ�य �ो पुनः स्ሺान में लेने हेतु विनቖኔ#शिशत वि�या ्ቇया था। आज विቖኔनां� 24/09/2024 �ो पुनः MTP हेतु ्ቇवि+त बो,� ए�ं अन्य वि�शेष्ሺों �ी बै+� आयोजिजत �ी ्ቇयी ए�ं विनम्नलिललिखत अशिभमत विቖኔया ्ቇया।

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The denial for MTP of miss XXX WPC No 4788 of 2024 is again given after review meeting.

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The petitioner is having 28 wks + 3 days pregnancy with no gross congenital anomalies in fetus.

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Babies near 28 wks of gestation of 1 kg weight are viable. Due to prematurity such babies if survive face many complication through out their life.

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There were few points and queries as per order no WPC No 4788 of 2024 dated 23.09.2024

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Ques:-1. If patient is on high risk and she is anemic that will be their even if she has to deliver a child?

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Ans.

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Petitioner is anemic with HB 7.2 gm % which poses risk to the patient if taken for any operation/intervention.

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Patient may have to undergo surgical interventions in view of poor bishop, which is an additional risk at this period.

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Correction of anemia in these patient for MTP needs 3-4 blood transfusion which carries additional risks to the patient.

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In case of continuation of pregnancy anemia correction can be done by medical management.

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Ques:- 2. Other paramount consideration with respect to social and mental status and suffering of patient is also to be taken note of?

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Ans.

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Patient has studied upto 11th standard so no obvious mental illness present on the cross sectional examination. Mental status post delivery can not be predicted

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Ques 3 :- Whether apart from the petitioner being anaemic there is other risk to the petitioner?

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Ans:- Additional risk for termination of pregnancy is there

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A. Anaemia

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B. Poor Bishop score which poses increased risk of failure of induction for pregnancy termination and chances of increased surgical interventions or delivery by caesarean section at this gestationalage.

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Opinion of MTP board - denied for MTP

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The board is of opinion that MTP of Miss.XXX at this gestational age with anaemia carries higher risk to her life as compared to continuation of pregnancy.

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Medical Board was consisting of following doctors -

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1्ቚसूतित ए�ं ኚᮌी रो्ቇ वि�भा्ቇ,अध्य्ቌ, (izk/;kid ए�ं वि�भा्ቇाध्य्ቌ)	Dr. Jyoti Jaiswal	√ Allowed / Denied
2.्ቚसूतित ए�ं ኚᮌी रो्ቇ वि�भा्ቇ,सቖኔस्य(izk/;kid) 3. सूतितए�ंኚᮌीरो्ቇवि�भा्ቇ, सቖኔस्य(lg&izk/;kid)	Dr. Ruchi Kishore Dr. Abha	√ Allowed/Denied √ Allowed/Denied √
4. सूतितए�ंኚᮌीरो्ቇवि�भा्ቇ, सቖኔस्य (lgk;d ्ቚाध्याप�)	Dr. Shruti Singh Dhruv	Allowed / Denied √
5. मेति,जिसनवि�भा्ቇसቖኔस्य(्ቚाध्याप�).	Dr. Suresh Chandravans	hi Allowed/Denied.
6.रेति,योलॉजी वि�भा्ቇ सቖኔस्य(्ቚाध्याप�). 7.्ቚसूतित ए�ं ኚᮌी रो्ቇ वि�भा्ቇ,सቖኔस्य (सहाय� ्ቚाध्याप�).	Dr. Vivek Patre Dr. Supriya	√ Allowed/Denied. √ Allowed / Denied √
8. f’k’qk jksx foHkkx]lnL;](lg&izk/;kid)	Dr. Pretima Beck	Allowed/ Denied √
9.fu’psruk foHkkx lnL;(lg&izk/;kid) 10.विन्ቐेतना वि�भा्ቇ सቖኔरय(सहाय� ्ቚाध्याप�) 11.euksjksx वि�भा्ቇ lnL; lg&izk/;kid	Dr. Pratiksha Agrawal Dr. Amrita Jain Dr.Surbhi Dubey	Allowed / Denied √ Allowed / Denied √ Allowed / Denied

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I have heard learned counsel for the parties and perused the record.

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The Medical Termination of Pregnancy Act, 1971 (for short “the MTP Act”) and the Rules framed thereunder governs termination of pregnancy. Section 3 of the MTP Act spells out the situations wherein pregnancies may be terminated by registered medical practitioners. Section 3 of the MTP Act provides that when the length of pregnancy is within 20 weeks it may be terminated by a registered medical practitioner if an opinion is reached in good faith that continuance of the same would involve a risk to the life of the pregnant women or cause grave injury to her physical or mental health or there is a risk to the child or that it will suffer from abnormalities. Section 3 of the MTP Act reads as under:-

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“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.

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[(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,—

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(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

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(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,

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of the opinion, formed in good faith, that—

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(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

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(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

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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 may be presumed to constitute a grave injury to the mental health of the pregnant woman.

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Explanation 2.—For the purposes of clauses (a) and (b), where any

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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.

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(2-A) 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.

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(2-B) 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 where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

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(2-C) 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.

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(2-D) The Medical Board shall consist of the following, namely—

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(a) a Gynecologist;

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(b) a Pediatrician;

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(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.]

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(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 reasonably foreseeable environment.

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(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.

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(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.”

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In case of a pregnancy which exceeds 20 weeks but is within 24 weeks, the same may be terminated if an opinion on the same parameter is produced by two

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registered medical practitioners. The cases of such category of women is prescribed under Rule 3(2)(b) of the MTP Act.

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It is also to be noted that under Section 3(2)(b) of the MTP Act, a pregnancy may be terminated even beyond 20 but not beyond 24 weeks where such termination of such pregnancy is necessary due to any substantial foetal abnormality as diagnosed by a medical board. Section 3(2)(b)(i) of the MTP Act reads as under:-

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"3.(2)(b)(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;"

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Furthermore, as per Section 5 of the MTP Act, termination of pregnancy of a duration exceeding 24 weeks can also be allowed only if an opinion is formed in good faith for the purpose of saving the life of the pregnant woman. Relevant portion of Section 5 of the MTP Act is quoted as under :-

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“5. Sections 3 and 4 when not to apply.—(1) The provisions of Section 4, and so much of the provisions of sub-section (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a 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.

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(2) X X X X

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(3) X X X X

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(4) X X X X”

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The scheme of the Act has been explained by the Hon’ble Supreme Court in case of X vs. Union of India & Anr., reported in 2023 SCC OnLine 1338 , which reads as under :-

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“21. The position of law can therefore be summarized as follows :

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Length of thepregnancy	Requiremen	ts for	termination
Up to twenty weeks	Opinion of	one	RMP in terms of
	Section 3(2)
Between twenty and	Opinion of	two	RMPs in terms of
twenty-four weeks	Section 3(2)	read	with Rule 3B.

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Beyond	twenty four	If the termination is required to save the
weeks		life of the pregnant woman, the opinion
		of one RMP in terms of Section 5
		If there are substantial foetal
		abnormalities, with the approval of the
		Medical Board in terms of Section 3
		(2B)read with Rule 3A(a) (i).”

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From a perusal of the Act and the Rules framed thereunder, as well as the Judgment of the Hon’ble Supreme Court in X vs. Union of India and Another, 2023 SCC OnLine 1338 , it is amply clear that a pregnancy which is beyond 24 weeks can only be terminated if requirements provided under Section 5 of the MTP Act are satisfied and the decision has been made to save the life of the pregnant woman or to the satisfaction of Section 3(2)(b) and Section 3(2)(a)(i) for substantial foetal abnormalities.

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Perusal of the examination report of the petitioner/victim submitted before this Court show that foetus is viable with no gross obvious anomaly. Patient is high risk for obstetrics / operative intervention. The pregnancy termination is denied. This opinion was given unanimously by the Medical Board. Since the foetus is viable and normal and there is high danger to the petitioner to terminate the pregnancy, foeticide would neither be ethical nor legally permissible.

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As per the submission of head of the Medical Board Dr. Jyoti Jaiswal, today the petitioner is carrying pregnancy of 28 weeks and 3 days and foetus is viable and the opinion has been given that the petitioner is at high risk if she is permitted to go for termination of pregnancy.

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Looking to the report of medical board and submission made by team of the Medical Board, this Court is not inclined to allow this writ petition. This writ petition is accordingly dismissed. However, considering the fact that minor victim of rape has to deliver a child, State Government is directed to make all necessary arrangement and to bear all the expenses of hospitalization for delivery as and when victim is admitted. It is also expected that the State would provide adequate medical aid to improve the health of the petitioner during the period of pregnancy. In the

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event, the minor and her parents desire to give the child in adoption after delivery, the State Government shall take all necessary steps in accordance with the applicable provisions of law to facilitate this exercise.

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Sd/-

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({Sachin Singh Rajput})

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JUDGE

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Deepti

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Digitally signed by DEEPTI DEEPTI HARIKUMAR HARIKUMAR Date: 2024.09.26 13:30:26 +0530

Xxx v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Xxx v. State of Chhattisgarh

Case brief

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