Division Bench Sets Aside Single MP HC Judge Order | Permits 19-Year-Old To Abort Fetus

The Madhya Pradesh High Court (Gwalior Bench) in its recent order refused to permit medical termination of pregnancy (of more than 12 weeks) of a 19-year-old girl who had alleged rape on the pretext of marriage. The court analysed her FIR where she had mentioned being in love with the man, who she later accused of committing rape on her without her consent.

Noting that the allegation of the prosecutrix was that she was in ‘deep love’ with the man and she was having consensual sex with him, the Bench of Justice G. S. Ahluwalia refused permission to abort the fetus and observed thus:

The petitioner is aged about 19 years, therefore, she is mature enough to realize the consequences of consensual sex without any precaution.

Case:

A 19-year-old girl confessed that she was having a consensual physical relationship with one Rocky Shakya for the past 4-5 years, however, when she became pregnant, he refused to marry her, therefore, she sought permission to terminate her pregnancy. She also alleged that the man was having sex with her on ‘pretext of marriage’. 

Whether This Is Rape?

• Not less than two registered medical practitioners are of the opinion, 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

Also, explanation (1) appended to the sub-section (2) says that where the pregnancy is caused by rape, the anguish shall be presumed to constitute a grave injury to mental health.

This question assumed significance as if the consent for the physical relationship was obtained by misrepresentation of fact, then it would amount to rape and therefore, would come under the purview of explanation (1) appended to the sub-section (2) allowing termination of pregnancy with Court’s permission.

Madhya Pradesh High Court (Gwalior Bench)

At the outset, the Court noted that in FIR itself, it was specifically mentioned that since the petitioner was in deep love with the man, therefore, she used to visit the house of Rocky Shakya in absence of his family members and they used to have consensual sex. The court said,

The petitioner is a major girl knowing fully well the pros and cons of consensual sex without any precaution. Even the FIR was lodged after it was detected that the petitioner is pregnant.

Further, the court also noted that for the purpose of this writ petition, it had to only determine as to whether the permission for medical termination of pregnancy can be given or not specifically in the light of the provisions of IPC that the termination of pregnancy is otherwise an offence.

Therefore, dismissing the plea, the Court remarked thus:

This Court is of the considered opinion that since the petitioner involved herself in a consensual sex knowing fully well about the consequences of such act, and the allegations made in FIR, do not prima facie make out a case of consent obtained by misrepresentation of fact, therefore, under these circumstances, medical termination of pregnancy cannot be permitted.

Whether POCSO Can Be Applied

This Court is conscious of the fact that an FIR had been registered under:

• Section 376
• Section 376 (2) (n)
• Section 506

…of IPC

&

• Section 5/6 of the POCSO Act, 2012

 

So far as the offence under the POCSO Act is concerned, the court noted that it is the case of the prosecutrix that she is aged about 19 years. Furthermore, the petitioner herself has filed a copy of mark-sheet to show that her date of birth is 23/2/2002, therefore, it is clear that the prosecutrix is more than 19 years of age.

Under these circumstances, it is clear that no offence under POCSO Act shall be made out. The FIR was lodged on 27/7/2021, which clearly shows that the petitioner must have conceived pregnancy sometimes in the month of April, 2021. Under these circumstances, it is clear that the petitioner became pregnant after 19 years of her age.

Update as on September 9, 2021

The Madhya Pradesh High Court in the case above has now held that it is not necessary that the allegation of rape be proved before Section 3 of the Medical Termination of Pregnancy Act, 1971 [When pregnancies may be terminated by registered medical practitioners] can be invoked.

Ruling thus, the Division bench comprising Justice Sheel Nagu and Justice Deepak Kumar Agarwal set aside a Single Judge order which had refused to permit to abort a fetus of more than 12 weeks of a 19-year-old girl who had alleged, that on the pretext of marriage, a man had committed rape on her without her consent.

Now, setting aside the above-said order in an appeal filed by the Prosecutrix, the Division Bench of the High Court noted that the prosecutrix had alleged that she was subjected to rape and the pregnancy arose from the said incident of rape and since the period of pregnancy was below 20 weeks, therefore, she should be granted permission to abort her fetus, reported Livelaw. 

The bench said,

She admittedly is subjected to grave injury to her physical and mental health due to said rape, this Court cannot stand in the way of the prosecutrix in getting her pregnancy aborted/ terminated.

The Court further noted that the prosecution case is of rape against the prosecutrix aged 19 years, who alleged that though she entered into a sexual relationship with the accused with consent but the said consent was based on the promise extended by the accused to marry her in the future.

The said promise, as per prosecution story, was broken by the accused. Whether the promise was false from the very beginning or it was a case of breach of promise, is a fact to be established by adducing of evidence, which stage is yet to come.

Lastly, allowing her appeal against the Single Judge order and permitting her to abort her fetus, the Court ruled,

This Court hastens to add that the Scheme of the 1971 Act is such that it allows triggering of Section 3 provision inter alia in cases where rape is alleged. It is not necessary that the allegation is proved before Section 3 can be invoked.

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