# AB (2021) v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-01
- **Case number:** Writ C No. 19783 of 2021
- **Bench:** Manoj Kumar Gupta, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ab-2021-v-state-of-u-p-ors-47376
- **Pages:** 6

## Headnote

Medical Termination of Pregnancy Act,
1971
- Sections 3
&
5
-
Medical
Termination of Pregnancy (Amendment)
Act, 2021, dated 25.03.2021 - Outer limit
for abortion has been enhanced to 24
weeks - pregnancy could be terminated by
a registered medical practitioner, if he is
of opinion, formed in good faith, that
continuance of the pregnancy would
involve a risk to the life of pregnant
woman, or grave injury to her physical or
mental health, or there is a substantial
risk of child suffering from physical or
mental
abnormalities,
if
born
-
Explanation-I to sub-section (2) of Section
3 - legal presumption - legal presumption
that pregnancy caused by rape would
result in anguish to the pregnant woman
and would constitute a grave injury to her
mental health - 'best interests' test and
the
'substituted
judgment'
test
for
determining
whether
the
pregnancy
should be permitted to be continued or
not - 'best interest' test requires the court
to ascertain the course of action which
would serve the best interest of the
person
in
question
-
'substituted
judgment' test requires the court to step
into the shoes of a person who is
considered to be mentally incapable and
attempt to make the decision which the
said person would have made, if she was
competent to do so (Para 9, 10)

Permission sought for termination of pregnancy
of victim of rape - victim major - Court
constituted a Board of 4 experts one each in the
field of Gynecology, Psychiatry, Radiology or
Sonology and Pediatrics - As per medical report
length of pregnancy less than 24 weeks - Board
opined that since the petitioner does not want
to continue her pregnancy, compelling her to do
so, may pose a risk to her mental health and
consequent
physical
and
mental
health
problems
to
the
child
-
Medical
Board
unequivocally in favour of fetus being aborted to
9 All AB (2021) Vs. State of U.P. & Ors.
1247
prevent risk to the life of the petitioner - 'best
interest' test applied - Court permitted
termination of the pregnancy (Para 8, 11, 12)

Allowed. (E-5)

List of Cases cited :

## Text

1246 INDIAN LAW REPORTS ALLAHABAD SERIES
the 1976 Act, has been reckoned from
28.7.2020, which is the date of enforcement
of the U.P. Act No. 25 of 2020, and not the
date of service of the notice. It is the case
of the petitioner that the NOIDA Authority
approved the time extension sought from
the petitioner from 18.4.2019 to 7.4.2020.
This period had already lapsed before
28.7.2020 i.e. the commencement of the
U.P. Act No. 25 of 2020. Therefore, in our
view, the second part of the proviso to
Section 7 of the 1976 Act became
applicable as per which the Authority (in
this case NOIDA) had to give notice to the
allottee to use the land for the purpose for
which it is allotted within a period of one
year. Thus, in our considered view, the
impugned notice dated 27.5.2021, which
refers to the period of one year to be
reckoned from 28.7.2020, being the date of
commencement of the U.P. Act No. 25 of
2020, is erroneous.

16. Consequently, the order/notice
impugned dated 27.5.2021 passed by the
respondent no. 5 is quashed. This petition is
disposed of by leaving it open to the
NOIDA Authority to take steps for
issuance of notice to the petitioner as
contemplated in the second part of the
proviso to Section 7 of the 1976 Act.
----------
(2021)09ILR A1246
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DEEPAK VERMA, J.

Writ C No. 19783 of 2021

AB (2021) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Manoj Kumar Srivastava

Counsel for the Respondents:
C.S.C.

Medical Termination of Pregnancy Act,
1971
- Sections 3
&
5
-
Medical
Termination of Pregnancy (Amendment)
Act, 2021, dated 25.03.2021 - Outer limit
for abortion has been enhanced to 24
weeks - pregnancy could be terminated by
a registered medical practitioner, if he is
of opinion, formed in good faith, that
continuance of the pregnancy would
involve a risk to the life of pregnant
woman, or grave injury to her physical or
mental health, or there is a substantial
risk of child suffering from physical or
mental
abnormalities,
if
born
-
Explanation-I to sub-section (2) of Section
3 - legal presumption - legal presumption
that pregnancy caused by rape would
result in anguish to the pregnant woman
and would constitute a grave injury to her
mental health - 'best interests' test and
the
'substituted
judgment'
test
for
determining
whether
the
pregnancy
should be permitted to be continued or
not - 'best interest' test requires the court
to ascertain the course of action which
would serve the best interest of the
person
in
question
-
'substituted
judgment' test requires the court to step
into the shoes of a person who is
considered to be mentally incapable and
attempt to make the decision which the
said person would have made, if she was
competent to do so (Para 9, 10)

Permission sought for termination of pregnancy
of victim of rape - victim major - Court
constituted a Board of 4 experts one each in the
field of Gynecology, Psychiatry, Radiology or
Sonology and Pediatrics - As per medical report
length of pregnancy less than 24 weeks - Board
opined that since the petitioner does not want
to continue her pregnancy, compelling her to do
so, may pose a risk to her mental health and
consequent
physical
and
mental
health
problems
to
the
child
-
Medical
Board
unequivocally in favour of fetus being aborted to
9 All AB (2021) Vs. State of U.P. & Ors.
1247
prevent risk to the life of the petitioner - 'best
interest' test applied - Court permitted
termination of the pregnancy (Para 8, 11, 12)

Allowed. (E-5)

List of Cases cited :

1. Suchita Srivastava & ors. Vs Chandigarh
Administration AIR 2010 SC 235

(Delivered by Hon'ble Manoj Kumar Gupta, J.
&
Hon'ble Deepak Verma, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State.

2. The petitioner is a victim of rape. She
has prayed for a mandamus commanding the
respondent authorities to permit her to
terminate her undesirable pregnancy.

3. In brief, the case set up in the writ
petition is that an FIR was lodged by the
brother of the petitioner on 1.5.2021, under
Section 363, 366, 506 IPC, alleging that she
had been abducted by three named accused
and two unknown persons. The police after
investigation had submitted a charge sheet on
19.6.2021 against accused persons under
Section 366, 376 IPC. The trial is stated to be
pending. The petitioner has alleged that she is
suffering from extreme mental agony caused
by unwanted pregnancy. Reliance has been
placed upon Section 3 of the Medical
Termination
of
Pregnancy
Act,
1971
(hereinafter referred to as the 'Act'), in
contending that the pregnancy had resulted in
great anguish to her and thus involves grave
risk to her mental and physical health.

4. On 27.8.2021, after hearing counsel
for the petitioner and learned Standing
Counsel, we passed the following order: -

"On oral mention made by
learned counsel for the petitioner that the
matter is extremely urgent and shall be
rendered
infructuous,
if
not
taken
immediately, the file was called for.

Heard
Sri
Manoj
Kumar
Srivastava,
learned
counsel
for
the
petitioner and Sri Mohan Srivastava,
learned Standing Counsel and Sri Sandeep
Kumar Singh (State Law Officer) on behalf
of respondents.

The petitioner claims to be a rape
victim. She has approached this Court for a
mandamus directing the respondents to
permit her to terminate her undesirable
pregnancy.

Reliance has been placed on
Explanation-I to sub-section (2) of Section
3 of the Medical Termination of Pregnancy
Act, 1971 (hereinafter referred to as 'the
Act') in contending that the pregnancy has
resulted in such extreme anguish to her that
it constitutes grave injury to her mental
health.

As per High School mark-sheet,
the date of birth is 01.07.1997 and thus,
she is a major. Reliance has also been
placed on the amendment made to the
'Act' by the Medical Termination of
Pregnancy (Amendment) Act, 2021, dated
25.03.2021 whereby the outer limit for
abortion has been enhanced to twenty
four weeks.

It is submitted that as per report
of medical examination held on 20.05.2021
at District Women Hospital, Rampur, the
age of fetus was eight weeks and one day at
that time and as of date, the age of fetus is
around twenty two weeks, two days i.e. less
than twenty four weeks.
1248 INDIAN LAW REPORTS ALLAHABAD SERIES

Section 3 of the 'Act' permitted
termination of pregnancy in accordance
with the provisions of the said Act. The
outer limit prescribed for termination of
pregnancy was twenty weeks. The same has
been increased to twenty four weeks by the
Amendment, Act of 2021. The ExplanationI to Section 3 of the Act, permits
termination of pregnancy of a victim of
rape by raising a presumption that the
anguish caused by pregnancy in such cases
constitute a grave injury to her mental
health.

Learned counsel for the petitioner
states that it would be convenient for the
petitioner to get her pregnancy terminated
at Aligarh which is near Rampur.

Accordingly, we request the Vice
Chancellor, Aligarh Muslim University,
Aligarh to constitute a Board of four
experts one each in the field of Gynecology,
Psychiatry, Radiology or Sonology and
Pediatrics.

The
first
Additional
District
Judge, Aligarh shall act as a member cum
co-ordinator of the medical Board.

The
petitioner
shall
present
herself before the Medical Board for
medical examination day after tomorrow
i.e. 29.08.2021 at 11 am. The Board after
carrying out medical examination of
petitioner,
shall
submit
its
opinion/recommendation in sealed cover to
the
First
Additional
District
Judge,
Aligarh, who shall forthwith transmit the
same
to
this
Court.
The
opinion/recommendation of the Board shall
inter-alia be on the following aspects:

a) Length of pregnancy;

b)
Whether
continuance
of
pregnancy would involve any risk to the life
of the petitioner;

c)
Whether
continuance
of
pregnancy would otherwise result in any
grave injury to the petitioner;

d) Whether there is substantial
risk that if the child were born, it would
suffer from any serious physical or mental
abnormality.

The report/recommendation of
the Board shall positively be transmitted to
this Court by 01.09.2021.

Sri Mohan Srivastava, learned
Standing Counsel shall communicate this
order to the Senior Superintendent of
Police, Rampur, who shall provide full
security to the petitioner and person
accompanying her to medical college,
Aligarh for medical examination. Sri
Shashank Shekher Singh, learned counsel
for Aligarh Muslim University, Aligarh,
who on our request is present, has
undertaken to communicate the instant
order to the Vice Chancellor, Aligarh
Muslim University, Aligarh within 24 hours
so that it is duly complied with.

Office is directed to provide a
free copy of this order to Sri Mohan
Srivastava, learned Standing Counsel and
Sri Shashank Shekher Singh, learned
counsel
for
the
Aligarh
Muslim
University,
Aligarh
for
due
communication to the authorities. The
Registrar
(Compliance)
shall
communicate
the
instant
order
to
Additional District Judge, Aligarh.

Put up as fresh on 01.09.2021.
9 All AB (2021) Vs. State of U.P. & Ors.
1249

Office is directed to substitute the
name of the petitioner with AB (2021) in the
writ petition, in computer database and in
certified copy or any other documents that is
issued or put in public domain so that the
identity of the petitioner does not get disclosed."

5. Pursuant to our above order, the
petitioner presented herself for medical
examination on 29.8.2021 at Jawahar Lal
Nehru Medical College Hospital, AMU,
Aligarh, before a Medical Board constituted
for such purpose by the Vice Chancellor. The
report of the Medical Board has been
submitted in a sealed cover through 1st
Additional District Judge, Aligarh. The report
of the Medical Board is as follows: -

A. Length of pregnancy?

Ans: As per last menstrual period
- 20 weeks 4 days

As per USG parameters - 21
weeks 02 days

B.
Whether
continuance
of
pregnancy would involve any risk to the
life of the petitioner?

Ans. Based on history and
examination there are no apparent risk
factors that may pose significant risk to her
life at present. However, her urine
examination shows persistent ketone bodies
which is likely to be due to poor oral intake
(since she travelled from Rampur to
Aligarh and had motion sickness as told by
her). For this abnormal lab report she is
advised for observation and management.

C.
Whether
continuance
of
pregnancy would otherwise result in any
grave injury to the petitioner?

Ans: As per history and mental
status examination, she had a traumatic
experience and is under stress but she
doesn't have any diagnosable mental health
problem at present.

6. However, she may be at high risk
to develop mental health problems (like
Depression, Anxiety Disorders) as she does
not want to continue her pregnancy. This
may lead to mental disorder necessitating
medicines with potential harmful effect on
her growing fetus and after delivery to her
new born child as well.

D. Whether there is a substantial
risk that if the child were born it would
suffer from any serious physical or mental
abnormality?

Ans: Based on the examination
and USG report there is no physical
abnormality in the fetus at present.

7. As per the evidence in medical
literature, children born out of rape are
more likely to suffer from physical and
mental health problems (like Low Birth
Weight Failure to thrive, Depression,
Personality Disorders) due to poor motherchild relationship, abusive parenting or
neglect by the mother. Also children born
out of rape face great social stigma and are
other
ostracized
by
families
and
communities.

Impression: The member of the
board concluded that at present there is no
risk to the life of the victim or physical
abnormality in the fetus. As told to the
board, the victim does not want to continue
her pregnancy and compelling her to do so
may pose a risk for developing mental
health problems in her and consequent
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
physical and mental health problems to the
child.

(Dr. Seema Hakim)

 (Mr.ShahidRaza)

Professor

 1st
Additional Distt Judge

(Chairman
of
the
Board)
(Member-cum-Coordinator of the Board)

Dept. of Obst. & Gynaecology
Aligarh

J.N. Medical College

(Dr. Shagufta Wahab)

(Dr. Uzma Firdaus)

Professor

Dept. of Paediatrics

Dept. of Radiodiagnosis

 J.N. Medical College Hospital

J.N. Medical College

(Dr. Mohd. Reqazuddin)
Dept. of Phychaitry
J.N. Medical College

8. It is clear from the above report
that the length of pregnancy as per last
menstrual period was 20 weeks 4 days and
as per ultrasonography parameters, 21
weeks 02 days, thus, less than 24 weeks
(the outer limit prescribed under Section
3(2) of the Act). The report also clearly
states that in case of continuance of
pregnancy, the petitioner will be at higher
risk of developing mental health problems
as she does not want to continue her
pregnancy. The child, if born, is likely to
suffer from physical and mental health
problems due to various reasons mentioned
in the report. The report also clearly opines
that since the petitioner does not want to
continue her pregnancy, compelling her to
do so, may pose a risk to her mental health
and consequent physical and mental health
problems to the child.

9. Section 3 of the Act provides that a
pregnancy could be terminated by a
registered medical practitioner, if he is of
opinion, formed in good faith, that
continuance of the pregnancy would
involve a risk to the life of pregnant
woman, or grave injury to her physical or
mental health, or there is a substantial risk
of child suffering from physical or mental
abnormalities, if born. The first explanation
to sub-section 2 of Section 3 creates a legal
presumption that pregnancy caused by rape
would result in anguish to the pregnant
woman and would constitute a grave injury
to her mental health.

10. In Suchita Srivastava & Others
vs. Chandigarh Administration, AIR
2010 SC 235, the Supreme Court laid down
two tests, namely the 'best interests' test and
the
'substituted
judgment'
test
for
determining whether the pregnancy should
be permitted to be continued or not. The
'best interest' test requires the court to
ascertain the course of action which would
serve the best interest of the person in
question. The 'substituted judgment' test
requires the court to step into the shoes of a
person who is considered to be mentally
incapable and attempt to make the decision
which the said person would have made, if
she was competent to do so.

11. In the instant case, concededly the
victim as per high school mark sheet is
major and thus the 'best interest' test has to
be applied to the facts of the instant case.

12. Applying the said test, we find
that apart from the presumption that is
engrafted under the first Explanation to
sub-section 2 of Section 3 of the Act, the
report of Medical Board is unequivocally in
favour of fetus being aborted to prevent
risk to the life of the petitioner. We
9 All Babu Ram Vs. State of U.P. & Ors.
1251
accordingly allow and permit termination
of the pregnancy.

13. The pregnancy shall be terminated
by a registered medical practitioner at a
hospital established or maintained by
Government or a place for the time being
approved for the purpose of this Act by
Government,
as
contemplated
under
Section 4 of the Act. The hospital where
the pregnancy is terminated shall maintain
confidentiality, as required under Section
5-A of the Act.

14. We further direct that in terms of
the request made by the petitioner by filing
supplementary affidavit, the tissues and
blood samples of the fetus shall be
preserved by the hospital where pregnancy
is terminated. It shall be forwarded to the
nearest Government approved forensic
laboratory for preservation and testing, as
may be directed by the trial court seized of
the
matter..
The
permission
given
hereinabove for termination of pregnancy
shall last only until the fetus attains age of
24 weeks and consequently, the petitioner
is directed to present herself for termination
of pregnancy at recognized medical centre,
as stipulated under Section 4 of the Act,
well before expiry of 24 weeks, failing
which the instant order shall automatically
lapse.

15. The Registrar General is directed
to preserve the report of Medical Board in
sealed cover for future reference, if needed.

16. The petition stands disposed of
accordingly.
----------
(2021)09ILR A1251
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 19804 of 2021

Babu Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Kishore Pandey, Sri Priyanshu
Pandey

Counsel for the Respondents:
C.S.C., Sri Hari Narayan Singh

Civil Law - U.P. Revenue Code, 2006 -
Sections 67 & 67A - Illegal Encroachment
- If defence of S. 67(A) is taken by the
notice in proceedings under S. 67, then
proceedings
u/s
67(A)
should
be
registered separately but both cases i.e.
case u/s 67 as well u/s 67(A) should be
consolidated, heard & decided together -
courts in proceedings u/s 67 of the Code
are under obligation of law to decide the
eligibility of the noticee for protection u/s
67(A) of the Code (Para 12)

Petitioner invoked protection of s. 67(A) of the
Code on the footing that his residential house
was erected 35 years ago on the disputed parcel
of land & that a residential patta was granted to
his predecessors - courts below held petitioner
to be illegal encroacher & regarding petitioner's
defence held that it was open to the petitioner
to take out separate proceedings u/s 67(A) of
the Code for grant of appropriate relief as
claimed by him - Held - courts below erred in
law by failing to consider that the petitioner is
entitled to the protection of Section 67(A) of the
Code.

Allowed. (E-5)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Sri Ram Kishore Pandey,
learned counsel for the petitioner, learned