MP HC (DB) authorizes abortion and overturns single judge’s order

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In an important decision, the Madhya Pradesh High Court ruled that it was not necessary for the rape allegation to be proven before section 3 of the Medical Termination of Pregnancy Act 1971. [When pregnancies may be terminated by registered medical practitioners] can be invoked.

Holding so, the division chamber composed of Judge Sheel Nagu and Judge Deepak Kumar Agarwal quashed an order of the Single Judge which had refused to authorize the abortion of a fetus older than 12 weeks of a young girl of 19 years who had alleged, that the pretext of marriage, a man had committed rape on her without her consent.

Learn more about the Single Judge’s Order here: 19-year-old girl mature enough to realize the consequences of reckless consensual sex: MP’s High Court denies permission to abort fetus

Facts of the matter

Basically, the prosecutor alleged in court that the man (her lover) had promised her, that he would marry her, and under this pretext he had been in a physical relationship with her for 4-5 years but when she became pregnant, he refused to marry her, so she applied to the court for permission to terminate her pregnancy.

However, noting that the prosecutor’s allegation was that she was deeply in love with the man and had consensual sex with him, the Single Judge refused permission to abort the fetus and thus observed : “The applicant is approximately 19 years old. years old, she is therefore mature enough to realize the consequences of a consensual sexual relationship without any precaution. “

The reason given by the single judge for rejecting the plea of ​​the prosecutor was that the sexual intercourse appeared prima facie, according to the account of the prosecution, as consensual.

Now, setting aside the aforementioned order in an appeal by the prosecutor, the division chamber of the High Court noted that the prosecutor had alleged that she had been a victim of rape and that the pregnancy stemmed from said rape incident and since the pregnancy period was less than 20 weeks, therefore, she should be allowed to abort.

“… she certainly suffered serious damage to her physical and mental health as a result of said rape, this Court cannot prevent the prosecutor from aborting / terminating her pregnancy,” the court said.

The court further noted that the charge relates to rape against the 19-year-old prosecutor, who alleged that although she had sex with the accused with his consent, but said consent was based on the promise made by the accused to marry her in the future.

“Said promise, according to the prosecution account, was broken by the accused. Whether the promise was false from the outset or that it was a case of breach of promise is a fact of life. establish by the production of evidence, which stage is still to come ”, added the Court.

Article 3 of the MTP law

It should be noted that in accordance with the provisions of subsection (2) of section 3 of the Medical Termination of Pregnancy Act 1971, when the duration of the pregnancy exceeds twelve weeks but does not exceed twenty weeks , the pregnancy could be terminated if:

At least two registered physicians are of the opinion, in good faith, that the continuation of the pregnancy would involve a risk to the life of the pregnant woman or serious damage to the physical or mental health /

Furthermore, the explanation (1) appended to paragraph (2) says that when the pregnancy is caused by rape, the anxiety is presumed to constitute a serious injury to mental health.

In this context, the central question to be examined before the Court was the following: was the sexual relations with the man consensual sexual relations or whether it was sexual relations with the consent of the applicant obtained by a false statement of facts?

This issue becomes important in such cases, because if the consent to the physical relationship was obtained by a false statement of fact, then it would amount to rape and, therefore, would fall within the scope of the explanation (1) appended to subsection (2) authorizing termination of pregnancy with leave of the Court.

Observations of the Court

While the Single Judge assumed that she had given her consent to the act, the Bench Division observed that the Single Judge should not have assumed the presence of an element of consent as a deterrent, especially when the case relating to the rape allegation is pending before the court of first instance.

“Said promise, according to the prosecution account, was broken by the accused. Whether the promise was false from the outset or that it was a case of breach of promise is a fact of life. establish by the production of evidence, which stage is still to come ”, added the Court.

Finally, allowing her appeal against the order of the single judge and allowing her to abort her fetus, the Court ruled as follows:

“This Court hastens to add that the scheme of the 1971 Act is such as to permit the triggering of the provision of section 3, inter alia in cases where rape is alleged. It is not necessary for the claim to be proven before Article 3 can be invoked. “

Case Title – Prosecutrix vs. The State of MP and Ors.

Click here to download the order

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