Hallo Bi @ Halima W/O Aamin v. State of Madhya Pradesh & two Others

2013SCCONLINEMP445
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The petitioner in the present case was a pregnant woman, languishing in jail for allegedly committing murder under Section 302 of the Indian Penal code, of Usman, who forced her into prostitution and committed rape on her. An application for termination of her pregnancy was rejected by the Chief Judicial Magistrate and therefore the case was before the High Court, for the issuance of an appropriate writ, order or direction directing the respondents (the state) to permit her to terminate her pregnancy pursuant to section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter “MTP Act”). The MTP Act provides for the legal methods for termination of pregnancy in case of rape/forced under exception 1 of section3(2).
The present court appointed an amicus curiae to assist the court and the petitioner was subjected to a medical examination by a doctor as was required by section 3 of the MTP Act. The medical report stated that she was not willing to terminate the pregnancy. However, on January 2013, the matter was again listed before the court wherein the petitioner sought for the termination of pregnancy, she stated before the open Court that she was sold for prostitution in Rajasthan and subjected to forced sex by one Usman. She also stated that during the first medical examination, she got anxious and nervous, therefore stated her wish in negative against the termination of pregnancy. She was again subjected to the medical examination by two registered doctors as required under section3(2)(ii) of the MTP Act, who opined that the pregnancy can be terminated.
Pertinent to mention here that the petitioner understood what pregnancy means and the medical opinion was in her favour. In lieu of the medical report, facts/circumstances and the current legal position on termination of pregnancy in case of rape/forced sex, the Court ordered for the termination of pregnancy. Though the amicus curie argued that there is no report to substantiate the so-called rape committed against the plaintiff and suggested that the DNA Sample of the foetus be preserved as the petitioner is alleging forced sex/rape. The suggestion appeared reasonable to the Court and it directed the authorities that after conducting the abortion, they will do the needful for keeping the DNA samples of the foetus and shall also keep the same in a sealed cover as per the prescribed procedure.

The Court decided the present case in the light of Section 3 of the MTP Act which provides for opinion from a registered Medical Practitioner where the length of pregnancy does not exceed 12 weeks and where the length of pregnancy exceed12 weeks, from two medical practitioners and permission, can be granted where pregnancy is alleged by the pregnant woman to have been caused by rape and the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of a pregnant woman. It opined that the petitioner was brave enough to state in an open court that she was forced into prostitution and rape was committed on her by the deceased Usman and she doesn’t want to continue with the pregnancy.
The Court extensively relied on Supreme Courts holding in Suchita Srivastava Vs. Chandigarh Administration, in which the Apex court emphasized that a woman’s right to reproductive choice was part of “personal liberty” under Article 21 of the Constitution. This includes the right to refuse participation in sexual activity, entitlement to carry a pregnancy to its full term to give birth or to use contraceptives. However, in the case of pregnant women, there exists compelling state interest to protect the life of the prospective child and termination is allowed only in permitted conditions mentioned under the MTP Act. Further, the Court in Suchita Srivastava underscored the fact that the MTP Act respects personal autonomy of a woman and hence consent of the pregnant woman was essential in termination. The Court held that, in the present case, the petitioner not only understood what pregnancy was but had consented for the abortion and also had the medical report in her favor. Therefore, the Court granted the petitioner permission to terminate her pregnancy. The court ordered the State to provide her with all medical assistance and care after the procedure and the superintendent of District jail, Indore to file a monthly status report to the principal registrar of the court for a period of 6 months.

“: “[The] fetus is on account of the forced prostitution, as alleged by the petitioner, and, therefore, case of the petition in respect of the abortion, is squarely covered under the Exceptions where permission can be granted for abortion...under The Medical Termination of Pregnancy Act, 1971.” Page 10

“[T]he petitioner...was brave enough to state before everyone that she was forcibly forced into prostitution...Forced prostitution, in the considered opinion of this court, virtually amounts to rape and, therefore, this Court is of the considered opinion, that the petitioner’s case falls under Exception I of Section 3, clause (ii) of the Act of 1971.” Page 13

“There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India….Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women, there is also a 'compelling state interest' in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled.” (quoting suchitaSrivatsava v. Chandigarh administration. Page 16.

Medical Termination of Pregnancy Act, 1971, Section 3: When pregnancies may be terminated by registered medical practitioners: (1) Notwithstanding anything contained in the Indian Penal Coe, a registered medical practitioner shall not be guilty of any offense under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (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 twelve weeks, if such medical practitioner is, or (b) 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- (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 such physical or mental abnormalities as to be seriously handicapped. Explanation 1. – 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. Explanation 2. –Where any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
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