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

Punjab and Haryana High Court: Fateh Deep Singh, J. allowed the bail application on the ground that trial was not going to finish in near future. 

The facts of the case were that a decoy woman patient who was pregnant was sent for abortion purposes and on the asking of the accused who demanded Rs 12,000, Rs 4000 was paid as advance and balance was to be paid on next day. In pursuance of this settlement, it was alleged that the petitioner gave one tablet to the lady patient to consume and another tablet was placed in her vagina to facilitate abortion.  Thus the case against the petitioner was lodged. 

Abhishek Singh, counsel for the petitioner contended that petitioner was behind the bars for more than six months and that there was no medical evidence to show that the petitioner had facilitated abortion of pregnancy which as per the own stand of the prosecution was on account of willingness of the alleged patient and neither there was any recovery of tablet from the vaginal area nor any medical report to establish abortion on that account and nature of tablet. It was further argued that the trial was not likely to be concluded in the near future, hence prayed for the grant of bail application. 

Baljinder Virk, counsel for the state opposed the grant of bail on the grounds of the heinousness of crime and seriousness of allegations. 

High Court opined that as petitioner was behind the bar for more than six months and a debatable issue arises over the applicability of offence for which the petitioner has been hauled up or are cognizable or non-cognizable and the fact that the trial is not likely to be concluded in near future, thus no purpose will be served by retaining the petitioner in jail. Thus the bail application was allowed to satisfaction of the chief judicial magistrate. [Gogi Rani v. State of Haryana, 2019 SCC OnLine P&H 1019, decided on 31-05-2019]

Hot Off The PressNews

As reported by media, Louisiana House of Representatives passed a bill that would prohibit abortion after the detection of an embryonic heartbeat, which can occur as early as six weeks from conception, often before a woman even realises she is pregnant.

The bill has come as a direct challenge to the United States Supreme Court Judgment in Roe v. Wade, 1973 SCC OnLine US SC 20 that legalises a Woman’s right to terminate her pregnancy.


[Source: The Wire]

Case BriefsHigh Courts

Bombay High Court: The Bench of V.M. Deshpande, J. dismissed an appeal challenging the judgment and order of Additional Sessions Judge whereby the appellant was convicted for offences punishable under Sections 376 and 506 IPC along with Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.

Appellant was accused of committing the offence of rape and sexual assault on a mentally-retarded minor girl victim after which she became pregnant. After the victim’s pregnancy came to light, she had to undergo an abortion and subsequently a case was filed against the appellant. For the said offence he was tried and convicted by the Additional Sessions Judge and sentenced to suffer imprisonment. Aggrieved thereby, appellant challenged the said judgment in the present appeal on various grounds.

One of the grounds contended by R.M. Patwardhan, Advocate for the appellant was that the DNA report should not be accepted as there was no reason for the medical officer who conducted abortion of the victim’s pregnancy to preserve the aborted foetus for DNA testing in absence of registration of offence against anybody.

Rejecting appellant’s contention as meaningless, the High Court noted Dr Kanchan Gadhe’s presence of mind and commitment towards her duty and opined that preservation of foetus was not unnatural as she knew that abortion was conducted on the minor unmarried girl. Furthermore, relying on Mukesh v. State (NCT of Delhi), 2017 (6) SCC 1, the Court observed, “the DNA report or scientific method to determine the paternity or sexual assault is firmly established. The only challenge for it can be set up that there occurred tampering with the blood sample of the accused at any stage.” Since there was no such challenge in the present case, the DNA report was accepted. Not finding any infirmity in the impugned order, the court dismissed the appeal. [Shaktiman v. State of Maharashtra, 2019 SCC OnLine Bom 139, dated 29-01-2019]

Case BriefsHigh Courts

High Court of Himachal Pradesh: While deciding a writ petition, a Division Bench comprising of Dharam Chand Chaudhary, J. and Vivek Singh Thakur, J. allowed the abortion of a 32 week developed foetus on the ground that it was risky for the petitioner to complete the normal period of pregnancy and deliver child on the due date.

The petitioner, aged 19 years, having mild to moderate mental retardation, approached the Court for seeking a direction to the Medical Superintendent, Kamla Nehru Hospital for Mother and Child, Shimla to arrange for abortion of a foetus in her womb. The Court gave a direction for conducting medical examination of the petitioner by a medical board. The report of the medical board revealed that there were major complications in the growth of the foetus in petitioner’s womb and the vaginal delivery of the same would cause danger to the life of petitioner as well as the baby. The medical board was of the opinion that the petitioner should go for premature delivery with surgical intervention because if pregnancy is allowed to continue up to its normal tenure, the head size of the foetus will increase further and in that event the surgery is going to become more complicated, besides causing more risk to petitioner’s life.

The Court perused the material available on record including the medical opinion of the board constituted and relied on the Supreme Court’s decision in WP (Civil) No. 17 of 2017, (decided 16-01-2017). The Court was of the view that the continuation of pregnancy would endanger the physical and mental health of the petitioner. The risk of termination of her pregnancy was within the acceptable limits. The relief sought in this writ petition, was also covered by Section 3(2)(i) of the Medical Termination of Pregnancy Act, 1971. Although the pregnancy was at an advance stage of 32 weeks, however, having regard to the danger to the life of the petitioner and expert opinion that the foetus may not survive to extra uterine life, the Court granted permission to the petitioner to terminate the pregnancy. The petitioner had every right to take all steps necessary to preserve her own life against the avoidable dangers to it. Accordingly, the petition was allowed and directions were given to the respondent to arrange for the termination of pregnancy of the petitioner. [Geeta Devi v. State o f H.P., 2017 SCC OnLine HP 1574, order dated 17.10.2017]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ  allowed a 13-year-old rape survivor to terminate her 32-week-old pregnancy after considering the medical report filed by the board of doctors of J J hospital Mumbai constituted by the Court.

The Mumbai-based rape survivor, a student of class seven had sought permission to abort the foetus. The Court directed the hospital authorities to terminate her pregnancy on September 8, 2017.

The Medical Termination of Pregnancy (MTP) Act prohibits abortion of a foetus after 20 weeks of pregnancy.

Source: PTI

Case BriefsSupreme Court

Supreme Court: The bench of SA Bobde and L Nageswara Rao, JJ allowed a 26-year-old woman, who is in 25th week of pregnancy, to terminate her pregnancy after her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infant’s death during or shortly after birth. The medical board’s report said that the condition of the foetus was also dangerous for the mother’s life.

Noticing that the fetus is without a skull and would, therefore, not be in a position to survive, the Medical Board said that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioner’s life is involved if she is allowed to undergo termination of her pregnancy. The Court, hence, said that it was in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. [Mamta Verma v. UOI, WRIT PETITION (CIVIL) NO.627 OF 2017, decided on 09.08.2017]

Case BriefsSupreme Court

Supreme Court: Acting upon the report of the Medical Board at KEM Hospital and Medical College, Mumbai, constituted to medically examine the petitioner, a rape survivor, the Court said that that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Court, hence, made an exception and held that it is permissible to allow the petitioner to abort the 24 week-old foetus in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. As per Section 5 of the Act, the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.

On 22.07.2016, the bench comprising of JS Khehar and Arun Mishra, JJ. had directed the Maharashtra Government to set up a medical board to examine the rape survivor who sought permission to terminate her 24 week old foetus and the medical examination was directed to be conducted on 23.07.2016. The Medical Board had advised against the continuation of pregnancy and had noticed that in view of severe multiple congenital anomalies, the fetus is not compatible with extra-uterine life and that the pregnancy might endanger the health of the petitioner. [Ms. X. v. Union of India, 2016 SCC OnLine SC 745, decided on 25.07.2016]