Gauhati High CourtMousumi Swargiary vs The Commissioner And Secretary To ... on 16 June, 2020Page No.# 1/7\n\nGAHC010081652020\n\n\n\n\n                              THE GAUHATI HIGH COURT\n   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n                                 Case No. : WP(C) 2438/2020\n\n            1:MOUSUMI SWARGIARY\n            REP. BY HER FATHER SRI NRIPEN SWARGIARY, R/O. H/NO.-9, NAMGHAR\n            PATH 4TH APBN GATE, NO.-2, LUTUMA, HILLSIDE, BINOVA NAGAR,\n            GUWAHATI, P.O. LUTUMA, PIN-781018, P.S. FATASHIL AMBARI, DIST.\n            KAMRUP (M), ASSAM.\n\n            VERSUS\n\n            1:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM AND 2\n            ORS.\n            HEALTH DEPTT., ASSAM, DISPUR,-781006.\n\n            2:THE JOINT DIRECTOR\n             HEALTH DEPTT.\n            ASSAM\n             KHARGHULI\n             GUWAHATI-781004.\n\n\n            3:THE IN CHARGE\n             MATERNITY AND CHILD WELFARE HOSPITAL\n             DHIRENPARA\n             GUWAHATI-781025\n             KAMRUP (M)\n\nAdvocate for the Petitioner   : MR. S KHOUND\n\nAdvocate for the Respondent : SC, HEALTH\n                                                                                    Page No.# 2/7\n\n                                    BEFORE\n                    HONOURABLE MR. JUSTICE N. KOTISWAR SINGH\n\n                                            ORDERDate : 16-06-2020\n\n      Heard Mr. S. Khound, learned counsel for the petitioner. Also heard Ms. D. Bora,\nlearned Standing Counsel, Health Department appearing for the respondents.2.     The present petition has been filed by the father of one minor, aged about 16 years 22\ndays stating that his daughter got acquainted with a neighbour who was about 25 years old,\nalso living as a tenant and after certain romantic relationship between the daughter and the\naforesaid person, it resulted in the pregnancy of his daughter who is still a minor, who is\nabout 16 years.3.     It has been stated that the petitioner came to know about the pregnancy of her minor\ndaughter only when she missed her periods for 4 (four) consecutive months and upon\nenquiry into the matter, her daughter disclosed that she had physical relationship with the\naforesaid person which lead to her pregnancy.Thereafter, the petitioner immediately took his daughter to a Doctor who advised for\nnecessary tests and upon such tests, it was revealed that the petitioner's daughter was\npregnant for 22 weeks and 1 day when the test was conducted on 06.05.2020.4.     Petitioner submits that the aforesaid act of her daughter was without her consent and\nwithout realising the gravity of the situation she brought to herself and her parents. It has\nbeen submitted that in a traditional society like in the present one in which the petitioner and\nher daughter and other family members are living, she may be subject to social astrociation\nand thus, are very concerned about her daughter's physical and mental condition and also for\nthe child which she is bearing. Accordingly, the petitioner had approached the Maternity and\nChild Welfare Hospital, Dhirenpara, Guwahati for termination of the pregnancy of his\ndaughter. However, the Hospital authority expressed their inability to terminate the pregnancy\nof his daughter on the ground that the pregnancy of being more than 20 weeks and such\ntermination is not permissible under theMedical Termination of Pregnancy Act, 1971.5.     Petitioner submits that considering the fact that the petitioner's daughter is a minor\nand was misled by her neighbour and if the said pregnancy is allowed to continue by giving\nbirth to a child, this will cause serious social stigma not only to her but also to the future of\n                                                                                              Page No.# 3/7\n\nthe child who may be ostracised in the society and the petitioner is also not sure whether his\ndaughter will be able to bear the trauma of child with and its aftermath. It has been\naccordingly, submitted that because of the aforesaid reasons the petitioner's daughter may\nsuffer from serious mental anxiety and trauma which may also cause serious threat to her life\nin the process and to the unborn child.6.     While this Court understands the anxiety of the petitioner as the father of a minor child\nwho is a victim of an illegal act by an insensitive adult. Unfortunately, the law is very clear\nthat there cannot be any termination of pregnancy if the pregnancy exceeds 20 weeks unless\nit is immediately necessary to save the life of the pregnant woman as provided under the\naforesaidMedical Termination of Pregnancy Act, 1971.7.    In order to appreciate this legal position, it may be appropriate to refer to Sub Sections\n(2), (3) and (4) ofSection 3of the aforesaid Act, which read as follows:"3.      .......................(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a\n              registered medical practitioner,-(a) where the length of the pregnancy does not exceed twelve weeks, if such\n                           medical practioner is, or(b) where the length of the pregnancy exceeds twelve weeks but does not\n                           exceed twenty weeks, if not less than two registered medical practioners are,\n                    Of the opinion, formed in good faith that(i) the continuance of the pregnancy would involve a risk to the life of\n                               the pregnant woman or of grave injury to her physical life or mental\n                               health; or(ii) there is a substantial risk that if the child were born, it would suffer\n                               from such physical or mental abnormalities as to be seriously\n                               handicapped."Explanation 1- Whether any pregnancy is alleged by the pregnant woman to have\n                been caused by rape, the anguish caused by such pregnancy shall be presumed to\n                constitute a grave injury to the mental health of the pregnant woman.\n                Explanation       2- Where any pregnancy occurs as a result of failure of any device or\n                                                                                        Page No.# 4/7\n\n                method used by any married woman or her husband for the purpose of limiting the\n                number of children, the anguish caused by such unwanted pregnancy may be\n                presumed to constitute a grave injury to the mental health of the pregnant woman.\n                (3) In determining whether the continuance of a pregnancy would involve such risk of\n                injury to the health as is mentioned in sub-section (2), account may be taken to the\n                pregnant woman's actual or reasonable foreseeable environment.4(a) No pregnancy of a woman, who has not attained the age of eighteen\n                          years, or who, having attained the age of eighteen years, is a [mentally ill\n                          person] shall be terminated except with the consent in writing or her\n                          guardian.(b) Save as otherwise provided in cause (a), no pregnancy shall be\n                        terminated except with the consent of the pregnant woman."8.     Perusal of the aforesaid provision makes very clear that a pregnancy may be\nterminated by a Registered Medical Practioner where the length of pregnancy does not\nexceed 12 weeks and where the pregnancy exceeds 12 weeks but does not exceed 20 weeks,\nthe termination can be allowed, if in the opinion of the Registered Medical Practioner, the\ncontinuance of pregnancy would involve risk of life to the pregnant woman and or grave\ninjury to her physical and mental health. Similarly, such termination is allowed if there is a\nsubstantial risk that if the child were born, it would suffer from physical and mental\nabnormalities as to be seriously handicapped .9.     It has been further provided under the Explanation 1 toSection 3(2) that where the\npregnancy is allegedly caused by rape, the anguish caused by such pregnancy shall be\npresumed to constitute a grave injury to the mental health of the pregnant woman. It has\nbeen further provided that where pregnancy occurs as a result of failure of any device or\nmethod used by any married woman or her husband for the purpose of limiting the children,\nthe anguish caused by such unwanted pregnancy may be presumed to constitute a grave\ninjury to the mental health of the pregnant woman.It has been also provided under Sub-Section (3) that in determining whether the\ncontinuance of pregnancy would involve such risk of injury to the health as mentioned in sub\nSection (2), account may be taken to the pregnant woman's actual or reasonable foreseeable\nenvironment.Page No.# 5/710.    It has been further provided underSection 5of the aforesaid Act that the provisions ofSection 4and provisions of sub-Section (2) ofSection 3as relate to the length of the\npregnancy and about the opinion of not less than two the Registered Medical Practitioners,\nshall not apply to the termination of a pregnancy by a Registered Medical Practitioner in a\ncase where he is of the opinion, formed in good faith, that the termination of such pregnancy\nis immediately necessary to save the life of the pregnant woman.Section 5of the aforesaid Act reads as follows,\n            "5.Sections 3and4when not apply.- (1) The provisions ofsection 4, and so much of\n      the provisions of sub-section (2) ofsection 3as relate to the length of the pregnancy and the\n      opinion of not less than two registered medical practitiones, shall not apply to the termination of\n      a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good\n      faith, that the termination of such pregnancy is immediately necessary to save the life of the\n      pregnant woman.(2) Notwithstanding anything contained inthe Indian Penal Code(45 of 1860), the termination\n      of a pregnancy by a person who is not a registered medical practitioner shall be an offence\n      punishable under that Code, and that Code shall, to this extent, stand modified.\n      (3) Whoever terminates any pregnancy in a place other than that mentioned insection 4, shall be\n      punishable with rigorous imprisonment for a term which shall not be less than two years but\n      which may extend to seven years .(4) Any person being owner of a place which is not approved under clause (b) ofsection 4shall\n      be punishable with rigorous imprisonment for a term which shall not be less than two years but\n      which may extend seven years."11.    From the above, it is crystal clear that ordinarily, termination of pregnancy which has\nnot exceeded 12 weeks may be permissible. However, in the event, the pregnancy exceeds\n12 weeks but is less than 20 weeks, it will be permissible only on the contingent that there is\nrisk to life of pregnant woman or it may cause grave injury to her physical or mental health\nand also that there is a substantial risk to the child if the child is born and the child would\nsuffer from such physical or mental abnormalities as to be seriously handicapped. Further\nonly when if there is immediate threat to the life of the pregnant woman, such termination\neven if more than 20 weeks can be allowed underSection 5.Page No.# 6/712.   Learned counsel for the petitioner has relied on the decision of this Court rendered inShri Bhatou Boro vs. State of Assam, 2018 2 GLR 577, in support of his contention,\nthat this Court had allowed termination of pregnancy in respect of a minor child.Perusal of the aforesaid decision would indicate that the victim of such minor child was\nabout 11 years, who was a victim of sexual assault by an elderly neighbour.It has been noted that the Court also referred to the decision of the Hon'ble Supreme\nCourt rendered inMerry Santosh Pal vs. Union of India, (2017) 3 SCC 462, where the\nHon'ble Supreme Court had allowed termination of pregnancy of a woman who was of 24\nweeks pregnancy.13.    Perusal of the aforesaid decision of the Hon'ble Supreme Court would indicate that\nHon'ble Supreme Court allowed the termination of the pregnancy as the Hon'ble Supreme\nCourt took the view that there was great danger to the physical and mental health of the\npregnant woman and that was on the basis of certain opinion of the Medical Board\nconstituted by the Hon'ble Supreme Court and Ultrasonography diagnosis had revealed live\nfetus with anencephaly, which can result serious danger to the life of mother.14.    Accordingly, this Court under the circumstances mentioned in the aforesaid case\ndirected the Medical Board of the Gauhati Medical College and Hospital to evaluate the\nfeasibility of the termination of pregnancy after taking into consideration the various\nparameters of law.15.   In the present case, this Court does not readily find any such material which would\ncover any provision of theMedical Termination of Pregnancy Act, 1971 to enable termination\nof the pregnancy of the petitioner's daughter. Because of the paucity of the materials before\nthe Court, regarding the risk to the lives of the pregnant mother and the unborn child which\ncould warrant termination of pregnancy under the aforesaid provisions of the Act, the Court\nrefrains from making any further observation.16.    However, considering the facts and circumstances as mentioned above, this Court\nwould direct the State respondents more particularly respondent No. 1 constitute a Medical\nBoard immediately consisting of minimum 2 (two) Registered Medical Practioners and one\nPsychologist at the earliest to ascertain as to whether the termination of the pregnancy of the\npetitioner's daughter is necessary to save the life of the pregnant woman as provided underSection 5of the aforesaidMedical Termination of Pregnancy Act, 1971 and on the basis of the\n                                                                                   Page No.# 7/7\n\nopinion of the Medical Board which will record the detail reasons with necessary supporting\ndata for arriving at any conclusion keeping in mind legal requirements as contemplated underSection 5of the Act, necessary decision and action as contemplated underSection 5of the\nAct may be taken.Thus, if the case of the petitioner's daughter is covered by circumstances warranting\ntermination of the pregnancy based on the report of the Medical Board, the respondents No.\n2 and 3 will do the needful.17.   Accordingly, the petitioner will produce his daughter before the respondent No. 3 when\nso directed by the respondent No. 1 by constituting a Board of Medical Board for examination\nas directed above.18.   With the above observations and directions, the present petition stands disposed of.19.   Copy of this order may be furnished to the learned counsel for all the parties.JUDGE\n\n\n\nComparing Assistant