In the High Court of Judicature for Rajasthan, Jodhpur
Civil Writ Petition No. 4149/2020
Petitioner
Muskan
Respondent
State of Rajasthan
Date of Judgement
9th April 2020
Bench
The Hon'ble Justice Dinesh Mehta
Facts of the Case
- The petitioner is a resident of Nagpur and after the death of her mother, her father raised her. Upon the death of her father, she has been working as domestic help, in order to meet the financial needs of the family.
- Later her relative took her to Rajasthan and handed over to Jannat Bano, who runs a Brothel in Pali. She was forced as a sex worker and her efforts to come out of it were not successful. She however managed to escape and lodge a FIR in the Pali Police Station against all the people involved.
- Although due to coitus with various men, she averred that she was impregnated. She approached a medical practitioner about 20 weeks into conception for termination and she was refused as it was for more than 20 weeks.
- On 8th April 2020 the court ordered a medical examination and asked for the report of the same to be furnished. The report showed that the foetus was 17 weeks and 3 days and there were no additional risks to terminate the pregnancy.
- The petitioner also submitted her statement in which she states that she was forced into fornication and that she wants to leave the sex racket and lead a respectable life. She also apprehends that if the baby is born it will bring disrepute to her and will also hinder her marital prospects.
Issues
- Whether the pregnancy can be terminated keeping in mind the peculiar facts and circumstances?
Held
- The medical practitioner’s report shows that the foetus is 17 weeks and 3 days old. It shows that it can be terminated, but the mortality rate is 4-5 weeks more than the first trimester and 5 per 100,000 procedures.
- The section 3 of the Medical Termination of Pregnancy Act, 1971 states that a pregnancy can be terminated if it does not exceed 20 weeks and it is alleged that is would cause harm to the pregnant woman whether physical or mental. Under explanation 1 if the pregnancy is caused by rape, then it will constitute a mental harm.
- In the case of Sarmishtha Chakrabortty v. Union of India[1] it was held that in unexceptional MTP cases, no straight jacket rule can be applied, and the court should to be fact- specific and decision depends on each case.
- In the case of ‘S’ v. State of Rajasthan[2] the baby was asked to be delivered and handed over to an NGO instead of terminating the pregnancy. However, in this case the foetus was 25 weeks, which was beyond the legal permissible limits and in the present case is 17 weeks it is permissible as per the Act.
- The petitioner has been an innocent victim who has been forced into prostitution against her will. If the baby is born it will remain a remainder of the trauma she went through.
- The baby also will suffer mental trauma if born as she will always be reminded of the parent’s past trauma and the paternity of the child will be unknown.
- The pregnancy of the woman has been caused by rape as he was forced into promiscuous physical relations. This will come under Explanation I under sub- section (2) of Section 3 of the Act of 1971.
- The foetus being 17 weeks and the petitioner’s unwavering resolve to abort, there is no legal impediment and it can be terminated.
- Thus, the writ petition is allowed. The Superintendent of Umaid Hospital to conduct the termination within 3 days.
- The petition however will not be treated as a precedent laying absolute law, that any woman involved in prostitution has an inviolable right to termination of pregnancy without fulfilment of section 3 of the Act.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
Reference
[1] (2018) 13 SCC 339
[2] S.B. Civil Writ Petition No. 14827/2019
