Writ Petition No. 408/2013. Case: Hallo Bi @ Halima Vs State of M.P. and Others. High Court of Madhya Pradesh (India)
| Case Number | Writ Petition No. 408/2013 |
| Counsel | For Respondents: Mrs. Vinita Phaye, Advocate and Mr. Piyush Mathur, Sr. Advocate as Amicus Curiae |
| Judges | S. C. Sharma, J. |
| Issue | Constitution of India - Article 21; Indian Penal Code (45 of 1860) (IPC) - Section 302; Medical Termination of Pregnancy Act, 1971 - Sections 3, 3(2)(i), 3(2)(ii), 3(4)(a), 3(4)(b), 5(1) |
| Citation | 2013 (1) MPHT 451, 2013 (2) MPLJ 655, 2013 (1) RCR 770 (Civil), 2013 (1) RCR 834 (Cri), 2013 CriLJ 2868 |
| Judgement Date | January 16, 2013 |
| Court | High Court of Madhya Pradesh (India) |
Order:
S. C. Sharma, J.
1. The petitioner before this Court, who is in Jail in respect of a crime registered at Crime No. 1492/2012 for an offence punishable under Section 302 of the Indian Penal Code, has filed this present petition for issuance of an appropriate writ, order or direction directing the respondents to permit the petitioner to terminate her pregnancy. The contention of the petitioner is that she was forced into prostitution by one Usman and on account of forced prostitution, she became pregnant. Petitioner has further stated that an application was submitted to the Jail Authorities for termination of pregnancy and the matter was forwarded to the CJM, Indore for grant of necessary permission and the CJM in a mechanical manner, on 14-12-12 has rejected the petitioner's application for grant of termination of pregnancy. Notices were issued by this Court on 10-1-13 and Mr. Piyush Mathur, learned Senior Counsel was appointed as amicus curiae to assist this Court.
2. Section 3 of the Medical Termination of Pregnancy Act, 1971 provides a medical opinion by a registered medical practitioner and, therefore, the matter was immediately referred to obtain an opinion from the Head of the Department, Gynaecology and Obstetrics, MGM Medical College/M.Y. Hospital, Indore. The petitioner was subjected to medical examination by Dr. Laxmi Maroo, Professor and Head of the Department, Gynaecology and Obstetrics, MGM Medical College, Indore and her report reflects that at the time of medical examination, the petitioner has stated that she is not willing for termination of pregnancy.
3. Again the matter was listed before this Court on 11-1-13 and as a statement was once again made before this Court by the learned Counsel for the petitioner that the petitioner now wants to terminate the pregnancy, the Superintendent of Jail, Distt. Jail, Indore was directed to produce the petitioner before this Court on 15-1-13.
4. The petitioner was present before this Court on 15-1-13 and the petitioner in open Court categorically stated that she was forced into prostitution, she was sold in the State of Rajasthan and on account of the force prostitution, she has become pregnant. The petitioner has categorically stated in the open Court that she wants to terminate pregnancy and at the relevant point of time, the medical examination took place she was nervous and scared of the surrounding environment as well as she was very tense. The observation has been made by the Doctor that she does not want to terminate the pregnancy. This Court, by way of abundant caution has requested respected lady Lawyers of this Court to interact with the petitioner and Ms. Meena Chaphekar and Mrs. Vinita Phaye, Advocates have interacted with the petitioner and have informed this Court that the petitioner wants to terminate the pregnancy. The first medical examination of the petitioner took place on 10-1-13 and the age of the foetus was assessed at 11 weeks and 4 days and therefore, keeping in view Rule 3, clause (2), sub-clause (b), a report of two registered medical practitioners/Government Doctors was required.
5. This Court has again referred the matter for medical opinion and now, today, a fresh report has been received. The report has been submitted on behalf of two Doctors posted at M.Y. Hospital, Indore and both are Gynaecologist. They have opined that the pregnancy can be terminated. The report has been received through Superintendent of Jail, District Jail, Indore and the same is taken on record.
6. Mrs. Vinita Phaye, learned Counsel for the respondent-State has also argued before this Court that pregnancy can be terminated keeping in view Section 3 of the Medical Termination of Pregnancy Act, 1971.
7. As statement was made by the petitioner in the open Court that she was subjected to forced sex/rape, she was also directed to submit an affidavit and she has submitted an affidavit dated 15-1-13. The affidavit reflects that she was subjected to forced sex. She has stated that she wants to terminate the pregnancy and does not want to give birth to the child. Thus, the petitioner has not only filed an affidavit, but had stated in open Court that she was subjected to forced sex and wants to terminate the pregnancy. The report as required under the Medical Termination of Pregnancy Act, 1971 is also in favour of the petitioner.
8. Mr. Piyush Mathur, learned Sr. Counsel appointed as amicus curiae, has argued before this Court that as the petitioner is alleging pregnancy on account of forced sex/rape and there is no report in respect of the so-called rape and it will result in further complications in the matter. The arguments canvassed by the learned Sr. Counsel does deserve consideration. That will be dealt with in the later paragraphs.
9. Heard learned Counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage itself with the consent of the parties.
10. In the present case, it is an undisputed fact that the petitioner is lodged in District Jail, Indore for an offence under Section 302 of the Indian Penal Code. The allegation is, as informed by the learned Counsel for the petitioner, that she has allegedly committed murder of one Usman...
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...(2016) 14 SCC 382. 4 See for instance: X v. Government of NCT of Delhi, 2013 SCC OnLine Del 6473, Hallo Bi v. State of Madhya Pradesh, 2013 CriLJ 2868 (MP)5 (2018) 11 SCC 572.6 (2017) 14 SCC 525.7 Id., 529.8 Z v. State of Bihar (2018) 11 SCC 130 Journal of Victimology and Victim Justice 3(1......
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Z V. State of Bihar: Reproductive Autonomy and State Liability
...(2016) 14 SCC 382. 4 See for instance: X v. Government of NCT of Delhi, 2013 SCC OnLine Del 6473, Hallo Bi v. State of Madhya Pradesh, 2013 CriLJ 2868 (MP)5 (2018) 11 SCC 572.6 (2017) 14 SCC 525.7 Id., 529.8 Z v. State of Bihar (2018) 11 SCC 130 Journal of Victimology and Victim Justice 3(1......