MS. Z V. STATE OF BIHAR AND OTHERS

(2018) 11 SCC 572
Download Judgment: English
Country: India
Region:
Year: 2017
Court: Supreme Court of India
Health Topics: HIV/AIDS
Human Rights: Right to bodily integrity, Right to life
Tags: Pregnancy; Termination of pregnancy

Ms. Z, the appellant, was a 35-year-old destitute woman living on the footpath in Patna as she was not wanted by her husband and her family. She was brought to Shanti Kutir, a women rehabilitation center, on 25th January 2017. On 2nd February 2017, she was taken to Patna Medical College Hospital, Patna (PMCH), by the rehabilitation center for medical examination with her consent and it was found that she was 13 weeks and 6 days pregnant. On getting aware she expressed her desire to terminate the pregnancy and divulged that the pregnancy was a result of a rape committed on her. She was taken to Patna Medical College Hospital, Patna (PMCH) for the medical termination after the permission of her guardians, but PMCH did not carry it out. Consequently, her pregnancy became more than 20 weeks old and she was also found to be HIV+ve. Pertinent to mention that under Section 3 of the Medical Termination of Pregnancy Act, pregnancy over 20 weeks can’t be terminated except in some exceptional circumstances.
Since the abortion had not been carried out, she approached the High Court of Patna through the officers of the rehabilitation home and requested for a direction of termination of pregnancy on account of her rape and her HIV+ve status. The High Court, however, held that the medical reports do not show any abnormality in the fetus, or that the fetus has already been infected with HIV. Further it held that there is no proof of any grave injury to the mental health of the victim as a result of the pregnancy, and hence, Explanation 1 to Section 3 of Medical Termination of Pregnancy Act, 1971 (‘the Act’) which provides that such pregnancy which is alleged to have been caused by rape shall be presumed to constitute grave injury to the mental health of the pregnant woman, was inapplicable. Hence, the termination was not allowed, but compensation was awarded to the appellant.
Consequently, the appellant approached the Supreme Court and argued that the State authorities were not prompt in terminating her pregnancy because of which she has to lead a life of terrible agony. She also argued that the High Court’s sole concern was with the future of the fetus and it disregarded the life of the victim which was not only fallacious but also displays a total lack of sensitivity.

On the question of termination of pregnancy, the Supreme Court held that there was no reason for PMCH to not proceed with the termination as there was no perceptible danger to the life of the appellant when she approached PMCH. However, report of the Medical Board at AIIMS revealed that the termination could have posed some risk to the life of the appellant, which could have been avoided at PMCH if it had taken prompt action with respect to termination.
The Court extensively relied on the case of Suchita Srivastava and Another v. Chandigarh Administration [(2009) 9 SCC 1] to emphasize on the significance of consent of the victim in the matters of pregnancy The appellant, a major woman, in the Court’s opinion, was in a position to give consent to the termination, despite the slight mental retardation she was suffering. There was no requirement of impleading her husband or her father in the entire process. Since the appellant had actually given her consent for termination and had also alleged rape and anguish ensuing from such pregnancy, the pre-requisites of Section 3 of the Act were held to have been complied with. Further, the legislative intent behind the Act, according to the Court, was to undergird the personal autonomy of a pregnant woman as far as Section 3 is concerned.
The Court laid stress on the fact that India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and is, therefore, under an obligation to ensure that the right of a woman with regards to her reproductive choices is protected.

“Thus, the opinion has to be formed by the registered practitioners as per the Act and they are required to form an opinion that continuance of the pregnancy would involve a grave mental or physical harm to her. We have already referred to Explanation 1 which includes an allegation of rape. As is perceivable, the appellant had gone from a women rehabilitation center, had given consent for termination of pregnancy and had alleged about rape committed on her, but the termination was not carried out. In such a circumstance, we are obliged to hold that there has been negligence in carrying out the statutory duty, as a result of which, the appellant has been constrained to suffer grave mental injury.” (Paragraph 26)
“In the case at hand, the appellant is a victim of rape. She suffers from mild mental retardation and she is administered psychiatry treatment, but she is in a position to express her consent. Under the statutory framework, she was entitled to give her consent for termination of pregnancy. As is evident, she did not desire to bear a child. This is a reverse situation of what has been portrayed in Suchita Srivastava, where emphasis was supplied on “consent.” As the facts would unfurl, the appellant had given consent for termination and she had categorically alleged rape. In such a circumstance, we perceive no fathomable reason on the part of the PMCH not to have proceeded for termination of the pregnancy because there was nothing on record to show that there was any danger to the life of the victim.”(Paragraph 39)
“In the instant case, it is luminescent that the appellant has suffered grave injury to her mental health. The said injury is in continuance. It is a sad thing that despite the prompt attempt made by this Court to get her examined so that she need not undergo the anguish of bearing a child because she is a victim of rape, it could not be so done as the medical report clearly stated that there was risk to the life of the victim. Therefore, we are inclined to think that the continuance of the injury creates a dent in the mind and the appellant is compelled to suffer the same. One may have the courage or cultivate the courage to face a situation, but the shock of rape is bound to chain and enslave her with the trauma she has faced and the cataclysm that she has to go through.” (Paragraph 53)

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