# ABC v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-06
- **Case number:** Writ-C No. 32785 of 2023
- **Bench:** Salil Kumar Rai, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abc-v-state-of-u-p-ors-49314
- **Pages:** 6

## Headnote

Civil Law - The Medical Termination of
Pregnancy Act, 1971 - Section 3 - The
Medical Termination of Pregnancy Rules,
2003 - Rule 3-B - Petitioner is victim of
rape as a consequence of which she
became pregnant - Petition was filed praying
to allow her to undergo medical termination of
her pregnancy - On 27.09.2023, considering
survivor's advanced pregnancy stage of 21
weeks and 5 days, Court after reviewing
Medical Report dated 26.09.2023, directed
Chief Medical Officer to proceed with medical
termination of pregnancy of victim and submit
a compliance report - Relying on decision of
Supreme Court, Court observed that relevant
provisions of Section 3-B shall be applicable
even to unmarried pregnant women, also
applicable where pregnancy has been caused
not due to any sexual assault / rape but due to
consensual relationship - In light of statutory
provisions and judgments of Supreme Court,
petitioner was entitled to get her pregnancy
medically terminated. (Para 1, 8)

Writ petition allowed. (E-13)

List of Cases cited:

## Text

10 All. ABC Vs. State of U.P. & Ors.
1201
----------
(2023) 10 ILRA 1201
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Writ-C No. 32785 of 2023

ABC ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sadrul Islam Jafri, Sri Ambreen Masroor,
Sri N.I. Jafri (Sr. Adv.)

Counsel for the Respondents:
C.S.C.

Civil Law - The Medical Termination of
Pregnancy Act, 1971 - Section 3 - The
Medical Termination of Pregnancy Rules,
2003 - Rule 3-B - Petitioner is victim of
rape as a consequence of which she
became pregnant - Petition was filed praying
to allow her to undergo medical termination of
her pregnancy - On 27.09.2023, considering
survivor's advanced pregnancy stage of 21
weeks and 5 days, Court after reviewing
Medical Report dated 26.09.2023, directed
Chief Medical Officer to proceed with medical
termination of pregnancy of victim and submit
a compliance report - Relying on decision of
Supreme Court, Court observed that relevant
provisions of Section 3-B shall be applicable
even to unmarried pregnant women, also
applicable where pregnancy has been caused
not due to any sexual assault / rape but due to
consensual relationship - In light of statutory
provisions and judgments of Supreme Court,
petitioner was entitled to get her pregnancy
medically terminated. (Para 1, 8)

Writ petition allowed. (E-13)

List of Cases cited:
1. XYZ Vs The St. of Gujarat & ors. reported in 2023
Live Law (SC) 680, (Paras 14 to 19)

2. X Vs The Principal Secretary, Health and
Family Welfare Department, Government of
NCT of Delhi & ors., AIR 2022 SC 4917,
(Paras 19 to 21)

(Delivered by Hon'ble Surendra SinghI, J.)

1. On the previous date i.e. on
27.9.2023
considering
the
advance
stage of pregnancy of the survivor
which was 21 weeks and 5 days and the
fact that the Court was to remain closed
for the next five days i.e. from
28.9.2023 to 2.10.2023, the Court after
considering the Medical Report dated
26.9.2023, directed the CMO Ghaziabad
to carry out medical termination of
pregnancy of the victim and send his
report to this Court. It was also
mentioned that the reasons for the order
will be given later.

2. In pursuance to the order dated
27.9.2023 passed by us, the reasons for
the said order are being stated below.

3.

The
provisions
regarding
medical termination of pregnancy is
provided under Section 3 of the Act No.
34 of 1971 which as follows:-

"3. When pregnancies may
be terminated by registered medical
practitioners. - (1) Notwithstanding
anything contained in the India Penal
Code (45 of 1860), a registered medical
practitioner shall not be guilty of any
offence under that Code or under any
other law for the time being in force, if
any pregnancy is terminated by him in
accordance with the provisions of this
Act.
1202 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) 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 twenty weeks,
if such medical practitioner is, or

(b) where the length of the
pregnancy exceeds twenty weeks but
does not exceed twenty-four weeks in
case of such category of woman as may
be prescribed by rules made under this
Act, if not less than two registered
medical practitioners are, of the 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
any serious physical or mental abnormality.

Explanation 1.-For the purposes of
clause (a), where any pregnancy occurs as a
result of failure of any device or method used
by any woman or her partner for the purpose of
limiting the number of children or preventing
pregnancy, the anguish caused by such
pregnancy may be presumed to constitute a
grave injury to the mental health of the pregnant
woman.

Explanation 2.-For the purposes
of clauses (a) and (b), where any pregnancy
is alleged by the pregnant woman to have
been caused by rape, the anguish caused by
the pregnancy shall be presumed to
constitute a grave injury to the mental health
of the pregnant woman.

(2A) The norms for the registered
medical practitioner whose opinion is required
for termination of pregnancy at different
gestational age shall be such as may be
prescribed by rules made under this Act.

(2-B) The provisions of sub-section
(2) relating to the length of the pregnancy shall
not apply to the termination of pregnancy by the
medical practitioner where such termination is
necessitated by the diagnosis of any of the
substantial foetal abnormalities diagnosed by a
Medical Board.

(2-C) Every State Government or
Union territory, as the case may be, shall, by
notification in the Official Gazette, constitute a
Board to be called a Medical Board for the
purposes of this Act to exercise such powers
and functions as may be prescribed by rules
made under this Act.

(2-D) The Medical Board shall
consist of the following, namely:-

(a) a Gynaecologist;

(b) a Paediatrician;

(c) a Radiologist or Sonologist;
and
Neutral
Citation
No.
-
2023:AHC:193291-DB

(d)
such
other
number
of
members as may be notified in the Official
Gazette by the State Government or Union
territory, as the case may be].

(3) In determining whether the
continuance of a pregnancy would involve
such risk of injury to the health as is
mentioned in sub-section (2), account may
be taken of the pregnant woman's actual or
reasonably foreseeable environment.
10 All. ABC Vs. State of U.P. & Ors.
1203

(4) (a) No pregnancy of a woman,
who has not attained the age of eighteen
years, or, who having attained the age of
eighteen years, is a mentally ill person,
shall be terminated except with the consent
in writing of her guardian.

(b) Save as otherwise provided in
clause
(a),
no
pregnancy
shall
be
terminated except with the consent of the
pregnant woman."

4. Thus, Section 3 of the Act No. 34
of 1971 provides that the termination of
pregnancy of a woman having duration
between 20 weeks and 24 weeks can be
carried out only on the recommendation of
Medical Board consisting of not less than
two registered medical practitioners. Report
of Medical Board should mention that the
continuance of pregnancy would involve a
risk to the life of the pregnant woman or of
grave injury to her physical or mental
health. In Explanation- II of Section 3 a
statutory presumption has been raised that
where any pregnancy is alleged by the
pregnant woman to have been caused by
rape, the anguish caused by pregnancy shall
be presumed to constitute a grave injury to
the mental health of the pregnant woman.
Clause 4 and 5 of Section 3 provides that
consent in writing of a pregnant woman,
who has attained the age of majority, is
necessary.

5. In the case of XYZ Vs. The State
of Gujarat & Ors reported in 2023 Live
Law (SC) 680, the Hon'ble Apex court had
held that in Indian society, pregnancy
outside the marriage in most cases, is
injurious
particularly,
after
a
sexual
assault/abuse and is cause of stress and
trauma affecting both physical and mental
health of the pregnant women/survivor. It
was also observed that the pregnant women
has the fundamental right under Article 21
of the Constitution of India to decide
whether to get her pregnancy terminated or
give birth to a child. The relevant
paragraph Nos. 14,15,16,17,18 and 19 of
the said judgment is quoted as under:-

"14. In Suchita Srivastava v.
State (UT of Chandigarh), (2009) 9 SCC
1, this Court expressed that the right of a
woman to have reproductive choice is an
insegregable part of her personal liberty, as
envisaged
under
Article
21
of
the
Constitution. She has a sacrosanct right to
her bodily integrity.

15. In Sarmishtha Chakrabortty and
Another v. Union of India Secretary and
Others, (2018) 13 SCC 339; this Court,
considered the medical report and held that
unless the pregnancy was terminated, the
life of the mother and that of the baby to be
borne would be in great danger and,
therefore, permitted termination of the
pregnancy.

16. A three-Judge Bench of this
Court in Murugan Nayakkar v. Union of
India & Ors., Writ Petition (Civil) No.749
of 2017, disposed of on 06.09.2017, while
considering the case of a minor petitioner-
survivor of alleged rape and sexual abuse,
held that it would be appropriate that
termination of pregnancy be allowed in
accordance with the opinion of the Medical
Board constituted by an order of this Court,
to the effect that termination of pregnancy
should be carried out. A direction was
issued that on a very next date i.e.
07.09.2017, the petitioner was to be present
so that on 08.09.2017 the termination of
pregnancy could be carried out.

17. More recently, in the case of
X vs. The Principal Secretary, Health
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
and
Family
Welfare
Department,
Government of NCT of Delhi and Ors.,
AIR 2022 SC 4917; this Court, in another
three-judge Bench lead by Dr. D.Y.
Chandrachud, J. (as the learned Chief
Justice then was) observed that a woman
can become pregnant by choice irrespective
of her marital status. In case the pregnancy
is warranted, it is equally shared by both
the partners. However, in case of an
unwanted or incidental pregnancy, the
burden invariably falls on the pregnant
woman affecting her mental and physical
health. Article 21 of the Constitution
recognizes and protects the right of a
woman to
undergo
termination
of
pregnancy if her mental or physical
health is at stake. Importantly, it is the
woman alone who has the right over her
body and is the ultimate decision-maker
on the question of whether she wants to
undergo an abortion.

18. In the context of abortion, the
right of dignity entails recognising the
competence and authority of every woman
to take reproductive decisions, including
the decision to terminate the pregnancy.
Although human dignity inheres in every
individual, it is susceptible to violation by
external conditions and treatment imposed
by the State. The right of every woman to
make reproductive choices without undue
interference from the state is central to the
idea of human dignity. Deprivation of
access
to
reproductive
healthcare
or
emotional and physical well-being also
injures the dignity of women.

19.
The
whole
object
of
preferring a Writ Petition under Article 226
of the Constitution of India is to engage
with
the
extraordinary
discretionary
jurisdiction of the High Court in exercise of
its constitutional power. Such a power is
vested with the constitutional courts and
discretion has to be exercised judiciously
and having regard to the facts of the case
and by taking into consideration the
relevant facts while leaving out irrelevant
considerations and not vice versa."

6. The Medical Termination of
Pregnancy Rules 2003 has been framed
under the Provisions of Act No. 34 of 1971.
The Rule 3-B of the said Rules is as
follows:-

3B.
Women
eligible
for
termination of pregnancy up to twentyfour weeks. - The following categories of
women shall be considered eligible for
termination of pregnancy under clause (b)
of subsection (2) Section 3 of the Act, for a
period of up to twenty-four weeks, namely:
-

(a) survivors of sexual assault or
rape or incest;

(b) minors;

(c) change of marital status
during
the
ongoing
pregnancy
(widowhood and divorce);

(d)
women
with
physical
disabilities [major disability as per
criteria laid down under the Rights of
Persons with Disabilities Act, 2016 (49 of
2016)];

(e) mentally ill women including
mental retardation;

(f) the foetal malformation that
has substantial risk of being incompatible
with life or if the child is born it may
suffer from such physical or mental
10 All. ABC Vs. State of U.P. & Ors.
1205
abnormalities
to
be
seriously
handicapped; and

(g) women with pregnancy in
humanitarian settings or disaster or
emergency situations as may be declared
by the Government.]

7. Since the pregnancy of the
petitioner/survivor has been caused due to
rape, thus her case is covered by Clause (a)
of Rule 3-B of the aforesaid Rule.

8. In X vs. The Principal Secretary,
Health and Family
Welfare
Department, Government of NCT of
Delhi and Ors., AIR 2022 SC 4917; this
Court, in a three-judge Bench lead by Dr.
D.Y. Chandrachud, J. (as the learned Chief
Justice then was) has analysed the
provisions of Section 3 of the Act No. 34 of
1971 as it was before and after its
amendment in 2021 with reference to Rule
3-B of the aforesaid Rules and has stated
that the provisions of Section 3-B shall be
applicable even to an unmarried pregnant
women. It shall be also applicable where
the pregnancy has been caused not due to
any
sexual
assault/rape
but
due
to
consensual
relationship,
the
relevant
paragraphs of the aforesaid judgment is as
follows.

"19.
A
woman's
right
to
reproductive choice is an inseparable part
of her personal liberty under Article 21 of
Constitution. She has a sacrosanct right to
bodily integrity. In Suchita Srivastava v
Chandigarh Administration, (2009) 9
SCC 1 this Court has recognized that a
woman's right to reproductive autonomy is
a
dimension
of
Article
21 of the
Constitution:

"22. There is no doubt that a
woman's right to make reproductive
choices is also a dimension of "personal
liberty" as understood under Article 21 of
the Constitution of India. It is important to
recognise that reproductive choices can be
exercised to procreate as well as to abstain
from procreating. The crucial consideration
is that a woman's right to privacy, dignity
and bodily integrity should be respected.
This means that there should be no
restriction whatsoever on the exercise of
reproductive choices such as a woman's
right to refuse participation in sexual
activity or alternatively the insistence on
use of contraceptive methods."

In Justice K.S. Puttaswamy
(Retd.) and Anr v. Union of India and
Ors, (2017) 10 SCC 1 4 the decision of a
woman to procreate or abstain from
procreating has been recognized as a facet
of her right to lead a life with dignity and
the right to privacy under Article 21 of the
Constitution:

"298. [p]rivacy of the body
entitles an individual to the integrity of the
physical
aspectsof
personhood.
The
intersection between one's mental integrity
and privacy entitles the individual to
freedom of thought, the freedom to believe
in what is right, and the freedom of self
determination. When these guarantees
intersect with gender, they create a private
space which protects all those elements
which are crucial to gender identity. The
family, marriage, procreation and sexual
orientation are all integral to the dignity
of the individual. Above all, the privacy
of the individual recognises an inviolable
right to determine how freedom shall be
exercised."
1206 INDIAN LAW REPORTS ALLAHABAD SERIES

The Bombay High Court in
High Court on its Own Motion v. State
of Maharashtra, 2017 Cr. LJ 218
(Bombay HC) observed as follows:

"14. A woman's decision to
terminate a pregnancy is not a frivolous
one. Abortion is often the only way out of a
very difficult situation for a woman. An
abortion is a carefully considered decision
taken by a woman who fears that the
welfare of the child she already has, and of
other members of the household that she is
obliged to care for with limited financial
and other resources, may be compromised
by the birth of another child. These are
decisions taken by responsible women who
have few other options. They are women
who would ideally have preferred to
prevent an unwanted pregnancy, but were
unable to do so. If a woman does not want
to continue with the pregnancy, then
forcing her to do so represents a
violation of the woman's bodily integrity
and aggravates her mental trauma which
would be deleterious to her mental
health"

(Emphasis Supplied)

20.
Denying
an
unmarried
woman the right to a safe abortion violates
her personal autonomy and freedom. Livein relationships have been recognized by
this Court. In S Khusboo v. Kanniammal,
(2010) 5 SCC 600 this Court observed that
criminal law should not be weaponized to
interfere with the domain of personal
autonomy.

21. On the above premises, we
are inclined to entertain the Special Leave
Petition. In the meantime, we are of the
view that allowing the petitioner to suffer
an unwanted pregnancy would be contrary
to the intent of the law enacted by
Parliament.
Moreover,
allowing
the
petitioner to terminate her pregnancy, on a
proper interpretation of the statute, prima
facie, falls within the ambit of the statute
and the petitioner should not be denied the
benefit on the ground that she is an
unmarried woman. The distinction between
a married and unmarried woman does not
bear a nexus to the basic purpose and
object which is sought to be achieved by
Parliament which is conveyed specifically
by the provisions of Explanation 1 to
Section 3 of the Act. The petitioner had
moved the High Court before she had
completed 24 weeks of pregnancy. The
delay in the judicial process cannot work to
her prejudice."

9. In the light of the aforesaid
statutory provisions and the judgments of
the Hon'ble Supreme Court, the petitioner
was entitled to get her pregnancy medically
terminated.
----------
(2023) 10 ILRA 1206
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Writ-C No. 42430 of 2014

Santosh Kumar Dohrey ...Petitioner
Versus
Pramukh
Sachiv
Nyay
Evam
Vidhi
Paramarshi U.P. Sachivalay Lucknow &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Akram Parvez Siddiqui, Sri Braj Mohan
Singh, Sri Harish Chandra Mishra, Sri
Narendra
Mohan