Sanjeev Sachdeva, J, Vinay Saraf, J
1. Appellant impugns order dated 22.07.2024 whereby the prayer for termination of pregnancy has been declined on the ground that the foetus is over
28 weeks.
2. Subject petition has been filed by the grandmother of the minor girl. It is contended that the parents of the minor girl were separated from the
grandmother and were living separately and the child has been brought up by the maternal grandmother from a very early age.
3. In the impugned order, the learned Single Judge has noticed the opinion of the Board part of which has been extracted in the order. For the sake of
convenience, the part of the report is extracted herein:-
“5. Opinion by Medical Board for termination of pregnancy:
a) Allowed: -
b) Denied: Denied
The gestational age of the fetus is more than 24 weeks hence medical termination cannot be performed as per MTP act amendment 2021. In
case of permission or order of MTP by honorable court such termination can be performed with all the explained risk of anticipated and
unanticipated complications related to termination of such high risk teenage pregnancy and the survivor having mild intellectual disability.
Termination of pregnancy at this gestational age and continuation of pregnancy, both, carries risk of complications.
6. Physical fitness of the woman for the termination of pregnancy: Yesâ€
4. Learned Single Judge referring to the medical report has held that in view of the medical report and the fact that the FIR that has been lodged by
the grandmother of the girl is suspicious, no case is made out for terminating the pregnancy.
5. Insofar as the observation of the learned Single Judge with regard to the lodging of the FIR being suspicious is concerned, we find that there is no
material to substantiate that observation. Accordingly, the observation in the impugned order that the lodging of the FIR by the grandmother of the
petitioner is suspicious, is expunged.
6. Reference may be had to the judgment of the Supreme Court inÂA (Mother of X) vs. State of Maharashtra &
Another, 2024 (6) SCC 327 wherein the Supreme Court has held that opinion of the pregnant person must be given privacy in evaluating the
foreseeable environment of the person under Section 3 (3) of the Medical Termination of Pregnancy Act, 1971. Further, Supreme Court has held that
the consent of a pregnant person in decision of reproductive autonomy and termination of pregnancy paramount and in case, there is a diversion in the
opinion of the pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an
important aspect in enabling the Court to arrive at a just conclusion.
7. The appeal was mentioned and listed before us on 24.07.2024 when we noticed that there was no consent of the minor as is held to be an essential
condition by the Supreme Court in A (Mother of X) vs. State of Maharashtra & Another, 2024 (6) SCC 327.
8. Keeping in view the observation of the Supreme Court in A (Mother of X) (supra), we directed the Principal District Judge, Bhopal to nominate a
Lady Judicial Officer to visit the girl at the hospital and obtain her independent informed decision with regard to termination of her pregnancy. We also
directed that the concerned Gynaecologists shall also accompany the Lady Officer so as to explain to the minor girl consequences about the
eventualities.
9. Pursuant to the said order, the Principal District Judge nominated Ms. Palak Rai, Judicial Magistrate First Class, Bhopal to visit the girl. The Judicial
Magistrate visited the girl at 8:30 in the night. She was accompanied by Dr. Smt. Shubha Shrivastava and Dr. Preksha Gupta. A report has been
submitted. The report inter alia reads as under:-
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10. As per the report, the Judicial Magistrate has noticed that though the mental age of the girl was 6.5 years, however, she was of mature
understanding and able to understand her surrounding and respond to the questions.
11. The medical opinion is that the pregnancy is a high risk pregnancy and there are complications both in taking the pregnancy to its term as also of
termination of pregnancy and there is risk to the life of the child, in both circumstances.
12. The Judicial Magistrate has noticed that at the time of her visit both the parents of the child were also present. The statement of the child has been
recorded. She has stated that she does not wish to continue with the pregnancy as she is not in a position to take care of the child. The grandmother of
the child has also stated that she is aged about 60 years and is already taking care of the minor girl and is not in a position to take care of the child, if
born.
13. Reference may be had to the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971 which reads as under:-
“3.When pregnancies may be terminated by registered medical practitioners.â€
(1) xxxxxxxxx
(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 twenty weeks, if such medical practitioner is, or
(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, of the opinion, formed in good
faith, thatâ€
(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.
Explanation 1.â€"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.
Explanation 2.â€"For the purposes of clauses (a) and (b), where any 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.â€
14. Section 3(2)(a) of the Act permits termination of pregnancy by registered medical practitioner in cases where length of pregnancy does not
exceed 20 weeks or where it exceeds 20 weeks but does not exceed 24 weeks, if the continuance of pregnancy would involve a risk to life of
pregnant woman or grave injury to the physical or mental health.
15. Explanation 2 to Section 3(2)(b) provides that for the purposes of Clause (a) and (b) where 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.
16. In the instant case, the pregnancy is over 28 weeks and has been caused on account of the girl being raped. FIR No.629/2024 Police Station
Nishatpura under Sections 376(2)(n), 366A, and 506 of IPC and Sections 5 and 6 of POCSO Act has been registered on 07.07.2024. Reference may
be had to the judgment of the Supreme Court in X vs. Principal Secretary, Health and Family Welfare Department, Government of NCT of
Delhi, 2023 (9) SCC 433 wherein the Supreme Court considered the constitutional values animating the interpretation of MTP Act and MTP Rules
and dealt with the Right to Reproductive Autonomy of a woman. The Supreme Court held that the MTP Act is an aid to interpretation understanding
injury to mental health and held as under:-
“64. When interpreting a sub-clause or part of a statutory provision, the entire section should be read together with different sub-clauses
being a part of an integral whole. [Balasinor Nagrik Coop. Bank Ltd. v. Babubhai Shankerlal Pandya, (1987) 1 SCC 606; Madanlal
Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd., 1962 SCC OnLine SC 65 : 1962 Supp (3) SCR 973 : AIR 1962 SC 1543] In
terms of Section 3(2)(b) of the MTP Act, not less than two RMPs must, in good faith, be of the opinion that the continuation of the
pregnancy of any woman who falls within the ambit of Rule 3-B would involve : (i) a risk to her life; (ii) grave injury to her physical health;
or (iii) grave injury to her mental health. Alternatively, not less than two RMPs must, in good faith, be of the opinion that there is a
substantial risk of the child suffering from a serious physical or mental abnormality, if born. Women who seek to avail of the benefit under
Rule 3-B of the MTP Rules continue to be subject to the requirements of Section 3(2) of the MTP Act.
65. One of the grounds on the basis of which termination of pregnancy may be carried out is when the continuance of a pregnancy would
involve risk of injury to the mental health of the woman. The expression “grave injury to her physical or mental health†used in Section
3(2) is used in an overarching and all-encompassing sense. The two Explanations appended to Section 3(2) provide the circumstances
under which the anguish caused by a pregnancy may be presumed to constitute a grave injury to the mental health of a woman.
66. Courts in the country have permitted women to terminate their pregnancies where the length of the pregnancy exceeded twenty weeks
(the outer limit for the termination of the pregnancy in the unamended MTP Act) by expansively interpreting Section 5, which permitted
RMPs to terminate pregnancies beyond the twenty-week limit when it was necessary to save the life of the woman. In X v. Union of India [X
v. Union of India, (2017) 3 SCC 458] , Mamta Verma v. Union of India [Mamta Verma v. Union of India, (2018) 14 SCC 289], Meera
Santosh Pal v. Union of India [Meera Santosh Pal v. Union of India, (2017) 3 SCC 462], Sarmishtha Chakrabortty v. Union of India
[Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339], this Court permitted the termination of post twenty-week pregnancies
after taking into account the risk of grave injury to the mental health of a pregnant woman by carrying the pregnancy to term.
67. The grounds for approaching courts differ and include various reasons such as a change in the circumstances of a woman's
environment during an ongoing pregnancy, including risk to life, [A v. Union of India, (2018) 14 SCC 75; X v. Union of India, (2017) 3
SCC 458; Meera Santosh Pal v. Union of India, (2017) 3 SCC 462; Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC 57; Mamta
Verma v. Union of India, (2018) 14 SCC 289] risk to mental health, [X v. Union of India, (2017) 3 SCC 458; Meera Santosh Pal v. Union
of India, (2017) 3 SCC 462; Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339; Mamta Verma v. Union of India, (2018) 14
SCC 289; Z v. State of Bihar, (2018) 11 SCC 572 : (2018) 2 SCC (Cri) 675] discovery of foetal anomalies, [A v. Union of India, (2018) 14
SCC 75; Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339; Tapasya Umesh Pisal v. Union of India, (2018)Â
12 SCC 57; Mamta Verma v. Union o fIndia, (2018) 14 SCC 289] late discovery of pregnancy in case of minors and women with
disabilities, [X v. Union of India, (2020) 19 SCC 806] and pregnancies resulting from sexual assault or rape. [Z v. State of Bihar, (2018) 11
SCC 572 : (2018) 2 SCC (Cri) 675; X v. Union of India, (2020) 19 SCC 806] These are illustrative situations thrown up by cases which
travel to the court. Although the rulings in these cases recognised grave physical and mental health harms and the violation of the rights of
women caused by the denial of the option to terminate unwanted pregnancies, the relief provided to the individual petitioner significantly
varied.
68. The expression “mental health†has a wide connotation and means much more than the absence of a mental impairment or a mental
illness. The World Health Organisation defines “mental health†as a state of “mental well-being that enables people to cope with the
stresses of life, realise their abilities, learn well and work well, and contribute to their communityâ€. [World Health Organisation,
“Promoting Mental Health: Concepts, Emerging Evidence, Practice (Summary Report)†(2004).] The determination of the status of one's
mental health is located in one's self and experiences within one's environment and social context. Our understanding of the term “mental
health†cannot be confined to medical terms or medical language, but should be understood in common parlance. The MTP Act itself
recognises the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that
while interpreting “grave injury to her physical or mental healthâ€, account may be taken of the pregnant woman's actual or reasonably
foreseeable environment. The consideration of a woman's “actual or reasonably foreseeable environment†becomes pertinent,
especially when determining the risk of injury to the mental health of a woman.â€
17. In the case of A (Mother of X) (supra), the Supreme Court while considering the statements, objects and reasons of the MTP Act and also the
aspect of physical and mental health of the pregnant person, held as under:-
“28. The powers vested under the Constitution in the High Court and this Court allow them to enforce fundamental rights guaranteed
under Part III of the Constitution. When a person approaches the court for permission to terminate a pregnancy, the courts apply their mind
to the case and make a decision to protect the physical and mental health of the pregnant person. In doing so the court relies on the opinion
of the Medical Board constituted under the MTP Act for their medical expertise. The court would thereafter apply their judicial mind to the
opinion of the Medical Board. Therefore, the Medical Board cannot merely state that the grounds under Section 3(2-B) of the MTP Act are
not met. The exercise of the jurisdiction of the courts would be affected if they did not have the advantage of the medical opinion of the
board as to the risk involved to the physical and mental health of the pregnant person. Therefore, a Medical Board must examine the
pregnant person and opine on the aspect of the risk to their physical and mental health.
29. The MTP Act has removed the restriction on the length of the pregnancy for termination in only two instances. Section 5 of the MTP Act
prescribes that a pregnancy may be terminated, regardless of the gestational age, if the medical practitioner is of the opinion formed in
good faith that the termination is immediately necessary to save the life of the pregnant person. Section 3(2-B) of the Act stipulates that no
limit shall apply on the length of the pregnancy for terminating a foetus with substantial abnormalities. The legislation has made a value
judgment in Section 3(2-B) of the Act, that a substantially abnormal foetus would be more injurious to the mental and physical health of a
woman than any other circumstance. In this case, the circumstance against which the provision is comparable is rape of a minor. To deny
the same enabling provision of the law would appear prima facie unreasonable and arbitrary. The value judgment of the legislation does
not appear to be based on scientific parameters but rather on a notion that a substantially abnormal foetus will inflict the most aggravated
form of injury to the pregnant person. This formed the basis for this Court to exercise its powers and allow the termination of pregnancy in
its order dated 22-4-2024 [A v. State of Maharashtra, 2024 SCC OnLine SC 608]. Th eprovision is arguably suspect on the ground that it
unreasonably alters the autonomy of a person by classifying a substantially abnormal foetus differently than instances such as incest or
rape. This issue may be examined in an appropriate proceeding should it become necessary.
30. Moreover, we are conscious of the fact that the decision to terminate pregnancy is one which a person takes seriously. The guidelines to
terminate pregnancy as well as the scheme of the MTP Act show the seriousness attached to the well-being of the pregnant person
throughout the process envisaged under the MTP Act. Change in the opinion of the Medical Board may cause undue trauma and exertion to
a pregnant person whose mental health is understandably under distress. While we understand the need for a Medical Board to issue a
clarificatory opinion based on the facts and circumstances of each case, the board must explain the reasons for the issuance of the
clarification and, in particular, if their opinion has changed from the earlier report. Pregnant persons seeking termination of pregnancy
seek predictability for their future. The uncertainty caused by changing opinions of the Medical Board must therefore balance the distress it
would cause to the pregnant person by providing cogent and sound reasons.â€
18. In A (Mother of X) (supra,) the Supreme Court by order dated 04.2024 had permitted the termination of pregnancy
even when the minor was in the 30th week of her pregnancy. However, subsequently, the decision was taken by the minor and parents not to put the
child at risk.
19. In the instant case, as noticed above, the latest medical opinion suggests that the pregnancy is a high risk pregnancy. There is high risk in both,
taking the pregnancy to term and in termination of pregnancy. A conscious decision has been taken by the guardian of the minor as also the minor girl
to proceed further with the termination of pregnancy. This is coupled with the fact that an offence of rape has been committed on the minor and the
guardian of the minor is an aged woman of 60 years who is solely taking care of the minor and states that she would be unable to take care of the
minor and the baby.
20. Reference may be had to an order of the Coordinate Bench of this Court in Victim X vs. Superintendent of Police, dated 09.05.2024 passed in
W.A. No.1078 of 2024 wherein the Coordinate Bench in similar circumstances has permitted termination of pregnancy where the foetus had
exceeded the age of over 30 weeks.
21. In view of the above, the petition is allowed. This court permits the termination of pregnancy subject to the following conditions:-
(i) The procedure of termination of pregnancy will be carried out in the presence of the expert team of doctors. The expert doctors will explain to the
family members as well as the petitioner the risk of getting the termination of her pregnancy and also other factors.
(ii) Every care and caution will be taken by the doctors while terminating the pregnancy. All medical attention and other medical facilities including
that of a presence of a Pediatrician as well as a Radiologist and other required doctors will be made available to her.
(iii) The post operative care up to the extent required, will be extended to the petitioner. It will be the duty of the State Government to take care of the
child, if born alive.
(iv) The doctors will also ensure that a sample from the foetus is protected for DNA examination and as and when required will be handed over to the
prosecution for using in the criminal case itself
(v) A specialised team of Doctors shall take a decision as to when to terminate the pregnancy. All necessary care and caution shall be taken by the
Doctors while carrying out the procedure for termination of the pregnancy.
22. Petition is allowed in the above terms.
