Topic: Shri Bhagwan Katariya And Others vs State Of M.P - Abortion without mothers consent

Shri Bhagwan Katariya And Others vs State Of M.P.
Chattisgarh High Court -  Equivalent citations: 2001 (4) MPHT 20 CG - Bench: R Garg – Date of Judgment: 22 November, 2000

ORDER

R.S. Garg, Ag. C.J.

1. This order shall dispose of M. Cr. C. No. 7340/2000 filed by Navneet Kumar and Sandeep, which is a second application under Section 439, Cr.PC. This order shall also dispose of M. Cr. C. No. 6993/2000, which is also an application under Section 439, Cr.PC, this is also a second application.

2. Parties are heard.

3. Case diary of Crime No. 13/2000 registered at Mahila Police Station, Durg for offences punishable under Section 498A/34 read with Section 313, IPC perused.

4. The prosecution allegations have already been given in detail in my earlier order dated 11-7-2000 passed in M. Cr. C. No. 3989/2000.

5. The necessary facts for disposal of these petitions are that Smt. Anita was married to Navneet. Applicants Sandeep and Sanjay are younger brothers of said Navneet while Bhagwan Katariya is the father of said Navneet. After the complainant conceived pregnancy, as the allegations are, the busband and the other family members took an exception to it, took her for abortion and without her consent got the abortion done. The girl even before she conceived pregnancy wrote number of letters to her parents, wherein she reflected her pathetic condition. After conceiving pregnancy she wrote certain letters to her parents, wherein she showed that she was hale and hearty and was happy of the events. She however wrote in the letters that the husband and the other family members were not happy with the said condition. Thereafter, she also wrote that contrary to her wishes, the abortion was effected. Thereafter, the matter was reported to the police. The police after making proper investigations arrested these persons.

6. Learned counsel for the applicants submits that under the provisions of Medical Termination of the Pregnancy Act, when the pregnancy is terminated by an expert or a doctor it must be presumed that the said pregnant woman consented to the said termination of the pregnancy and, as the present applicants have filed the documents in support of their contention that the present was a case of consent, no offence is made out and in any case in view of the said documents the applicants are required to be released on bail.

7. Referring to Section 3 of the Medical Termination of Pregnancy Act, 1971, it was submitted that a doctor is entitled to terminate the pregnancy under particular circumstances and if the pregnancy was terminated in accordance with the provisions of law, it must be presumed that without the consent of the woman it could not be done. He has also referred to the bed-head ticket and the other prescriptions to contend that on day one the complainant was not ready for the termination of the pregnancy but later on she gave her consent, therefore, no offence is made out.

8. On the other hand, Dr. N.K. Shukla, Dy. Advocate General for the State, submits that the provisions of Section 3 would not apply to the present case because they regulate and control the doctors in accordance with medical ethics. According to him, Section 3 provides the pregnancy can be terminated under the given set of circumstances, specially when the doctor is of the opinion that termination of the pregnancy is required looking to the health conditions or the condition of the child in the mother's womb. According to him, the letters written by the complainant would clearly show that not only she was treated with cruelty but even the demand of dowry was repeatedly made and the letters would also show that with the bleeding heart she was writing to her parents that she was treated with cruelty and even after the conception none in the matrimonial home was happy. Referring to the letter written after the said abortion, he submits that the contents of the letter would clearly show that the pregnancy was terminated without her consent as a result of conspiracy hatched by the husband and other members.

9. I have heard the parties at length and have gone through the case diary, the letters and the documents filed by the defence in its support.

10. The letters which form part of the case diary clearly show that the said complainant was treated with cruelty and on number of occasions the demand of dowry was made. Yet, another letter would show that after conceiving pregnancy the complainant was writing to her parents that it would be a good news to all of them because her parents would become the maternal grand-father and grand-mother. In the said letter, she had further written that the husband and the other members were not happy about her pregnancy and they were hatching some conspiracy day and night to get rid of something. After she had suffered the abortion, she again wrote a letter to her parents wherein she referred to her pathetic condition. In one letter, she had written that the demand of dowry was made and she was required to bring money from her parents and she was intimated that if the money was not brought including the car, then she would be done to death as her child was done. The letters cannot be condemned as concocted, at this stage. The present is not a case where one letter or two have been seized and produced by the prosecution. In fact, the bundle of the letters were written by the complainant to her parents, to her brothers and others and in each letter she was showing rather projecting her pathetic condition.

11. The documents on which the defence relies upon even if at this stage are taken into consideration do not show as to what was the cause which persuaded the family members and the complainant to go for abortion.

12. In one of the prescriptions, it is shown that the complainant wanted to continue with the pregnancy, while just below it on the second day, the dates though are in dispute, it is clearly written that she wanted to go for termination of pregnancy. There is nothing available with the defence nor there is anything in the case-diary to show and suggest as to what was the reason which suddenly persuaded or promoted the complainant to go for the termination of pregnancy.

13. It is uncomprehendable that a woman who was so happy after conceiving the pregnancy and wanted to go with the same would suddenly change her mind and accept the termination of the pregnancy, of her own.

14. So far as the question relating to the Medical Termination of the Pregnancy Act is concerned, Section 3 on its bare and fair reading would show that the said Section puts an embargo rather an injunction against the doctors who want to go for the termination of the pregnancy. The law says that the pregnancy can be terminated on the satisfaction of the doctor and not otherwise. First of all, the doctor is required to record his satisfaction as to whether the pregnancy should be continued or should be terminated. The doctor is required to record his opinion before terminating the pregnancy on certain particular aspects. Sub-section (2) of Section 3 provides that 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. Certain exceptions appended to sub-section (2) of Section 3 permit the woman to go for the termination of the pregnancy; in case where she conceives on account of the rape, where the husband and wife to control the family want to limit number of children. Sub-section (4) of Section 3 of the Act provides that no pregnancy of a woman, who has not attained the age of 18 years, or who having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian. Clause (b) of sub-section (4) of Section 3 provides that save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

15. Section 3 provides a Code of conduct for the medical practitioners. It does not protect the wrong doers who are not the medical practitioners. For an ordinary man, Section 313, IPC would govern the Courts. Whether the doctor committed an offence or not by terminating the pregnancy would altogether be a different question and it would be for the State and the investigating agency to look into the matter, but simply because some medical practitioners terminated the pregnancy would not provide a ground in favour of the present applicants for their release on bail.

16. Section 3 of the Medical Termination of Pregnancy Act would at all not be applicable to the present case. The present was not a case where the woman is admitting the facts that the pregnancy was terminated with her consent. Even otherwise clause (b) of sub-section (4) of Section 3 of the Act does not give an unfattered right to anybody to go for termination of the pregnancy.

17. Simply because the pregnancy was terminated in a hospital of some repute, the allegation made by the pregnant woman would not be doubted. The Court is required to see in case like present as to whether she was a consenting party, even if the consent is obtained it was of her free will and without exercise of pressure or coercion, or so.

18. In the present case, the documents so far collected by the prosecution clearly show that the girl after conceiving pregnancy was hale and hearty, happy and merry and was informing all concerned that she was happy after conceiving the pregnancy. She was writing to all that the husband and other relations of the husband were not happy and they were hatching some conspiracy.

19. The argument of the learned counsel for the petitioners that she want for termination of the pregnancy voluntarily can straight-way be rejected in view of the contents of the letters which were written by the complainant after suffering the abortion. In the said letters, she was abusing everybody and was writing to all concerned that despite her choice to continue with the pregnancy, the pregnancy was terminated as a result of conspiracy.

20. Present is not a case where for some reason or the other the wife was treated with cruelty. Present is a case where a permanent scar has been carved on the heart and soul of the woman by depriving her of her child.

21. I do not consider present to be the fit cases for grant of bail. The petitions arc rejected.

22. Misc. Criminal Cases dismissed.