# MS.Z v. THE STATE OF BIHAR AND OTHERS

- **Citation:** [2017] 8 S.C.R. 212
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Civil Appeal No. 10463 of 2017
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ms-z-v-the-state-of-bihar-and-others-32146
- **Pages:** 41

## Headnote

A
B
[2017]8 S.C.R.212
MS.Z
v.
THE STATE OF BIHAR AND OTHERS
(Civil Appeal No. 10463 of 2017)
AUGUST 17,2017
[DIPAK MISRA, AMITAVA ROY AND
A. M. KHANWILKAR, JJ.[
Medical Termination of Pregnancy Act, 1971:
C
ss.2, 3 and 4 - Termination of pregnancy - Statutory right of
rape victim - Appellant, a pregnant 35 year old destitute woman,
suffering from HlV+ve, alleged rape and therefore desired
termination of her 18 weeks old pregnancy - However, hospital
authorities did not terminate the pregnancy - Writ petition by
D appellant seeking direction for termination of pregnancy - High
Court on basis of the report of the Medical Board, constituted to
examine the appellant, did not allow termination of pregnancy -
Plea of appellant that the authorities did not act with promptitude
in terminating the pregnancy and further that the approach of High
Court was wholly fallacious - On appeal, held: Appellant was thirtyE five year old, a major - Though, she was suffering from mild mental
retardation but her condition was stable and she was able to allege
that she had been raped - Appellant had decided to excercise her
statutory right, being a rape victim, not to bear the child and more
so when there was possibility of the child likely to suffer from
F HlV+ve - Further. the Medical Board's report only stated that
termination of pregnancy may need major surgical procedure but
there was no opinion that the termination could not be carried out
or that it was risky to appellant's life -
However, now in view of
medical report by All MS that there is risk to appellant's life if the
pregnancy is terminated at this stage, the pregnancy cannot be
G terminated - There was negligence on the part of authorities in
carrying out their statutory duty, as a result of which the appellant
suffered grave mental injury - Apart from Rs.3 lakhs compensation
under the Victims Compensation Scheme as framed u!s.357A of
Cr PC, appellant to get a sum of Rs. 10 lakhs as compensation from
,,
H
the State - The child to be born, be given proper treatment and
212
MS. Z v. THE STATE OF BIHAR
213
nutrition by the State - If appellant has any future grievance, she is
A
granted liberty to approach High Court u/Art.226 after the birth of
the child - High Court's order set aside except for the direction
pertaining to investigation carried out on the basis of FIR lodged
by appellant u/s.376, IPC - The Medical Termination of Pregnancy
Regulations, 2003 - rr.3, 4 and 5 - Code of Criminal Procedure,
B
1973 - s.357A - Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) in 1993 -Arts. 11, 12 -
Penal Code, 1860- s. 376 - Mental Healthcare Act, 2017- Women
Welfare/Development - Constitution of India - Art.226.
Purpose of enactment - Held: Legislature intended to
liberalize the existing provisions relating to termination of pregnancy C
keeping in view the danger to life or risk to physical or mental
health of woman; on humanitarian as well as eugenic grounds.
s.2- "Mentally ill person" - Distinguished from - Mentally
retarded person - Appellant, a mentally retarded rape victim, was
denied termination of pregnancy by hospital - Plea of appellant D
that she was suffering from mental retardation and not from mental
illness and thus, in view of the consent given by her for termination
of pregnancy it was obligatory on the part of the hospital to
terminate the pregnancy - Held: Appellant sujferedfrom mild mental
retardation and not from any kind of mental illness - Though she
was administered psychiatry treatment but she was in a position to
express her consent - Under the statutory framework, she was
entitled to give her cons.~nt for termination of pregnancy - Evidently,
she did not desire to bear a child - In such circumstances, there
was no reason on the par.t of hospital authorities not to have
proceeded for termitJation of pregnancy.
E
F
ss.2, 3(4)- "Guardian" - Consent of - When not neededAppellant, a mentally retarded rape vict~m, sought termination of
pregna

## Text

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A
B
[2017]8 S.C.R.212
MS.Z
v.
THE STATE OF BIHAR AND OTHERS
(Civil Appeal No. 10463 of 2017)
AUGUST 17,2017
[DIPAK MISRA, AMITAVA ROY AND
A. M. KHANWILKAR, JJ.[
Medical Termination of Pregnancy Act, 1971:
C
ss.2, 3 and 4 - Termination of pregnancy - Statutory right of
rape victim - Appellant, a pregnant 35 year old destitute woman,
suffering from HlV+ve, alleged rape and therefore desired
termination of her 18 weeks old pregnancy - However, hospital
authorities did not terminate the pregnancy - Writ petition by
D appellant seeking direction for termination of pregnancy - High
Court on basis of the report of the Medical Board, constituted to
examine the appellant, did not allow termination of pregnancy -
Plea of appellant that the authorities did not act with promptitude
in terminating the pregnancy and further that the approach of High
Court was wholly fallacious - On appeal, held: Appellant was thirtyE five year old, a major - Though, she was suffering from mild mental
retardation but her condition was stable and she was able to allege
that she had been raped - Appellant had decided to excercise her
statutory right, being a rape victim, not to bear the child and more
so when there was possibility of the child likely to suffer from
F HlV+ve - Further. the Medical Board's report only stated that
termination of pregnancy may need major surgical procedure but
there was no opinion that the termination could not be carried out
or that it was risky to appellant's life -
However, now in view of
medical report by All MS that there is risk to appellant's life if the
pregnancy is terminated at this stage, the pregnancy cannot be
G terminated - There was negligence on the part of authorities in
carrying out their statutory duty, as a result of which the appellant
suffered grave mental injury - Apart from Rs.3 lakhs compensation
under the Victims Compensation Scheme as framed u!s.357A of
Cr PC, appellant to get a sum of Rs. 10 lakhs as compensation from
,,
H
the State - The child to be born, be given proper treatment and
212
MS. Z v. THE STATE OF BIHAR
213
nutrition by the State - If appellant has any future grievance, she is
A
granted liberty to approach High Court u/Art.226 after the birth of
the child - High Court's order set aside except for the direction
pertaining to investigation carried out on the basis of FIR lodged
by appellant u/s.376, IPC - The Medical Termination of Pregnancy
Regulations, 2003 - rr.3, 4 and 5 - Code of Criminal Procedure,
B
1973 - s.357A - Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) in 1993 -Arts. 11, 12 -
Penal Code, 1860- s. 376 - Mental Healthcare Act, 2017- Women
Welfare/Development - Constitution of India - Art.226.
Purpose of enactment - Held: Legislature intended to
liberalize the existing provisions relating to termination of pregnancy C
keeping in view the danger to life or risk to physical or mental
health of woman; on humanitarian as well as eugenic grounds.
s.2- "Mentally ill person" - Distinguished from - Mentally
retarded person - Appellant, a mentally retarded rape victim, was
denied termination of pregnancy by hospital - Plea of appellant D
that she was suffering from mental retardation and not from mental
illness and thus, in view of the consent given by her for termination
of pregnancy it was obligatory on the part of the hospital to
terminate the pregnancy - Held: Appellant sujferedfrom mild mental
retardation and not from any kind of mental illness - Though she
was administered psychiatry treatment but she was in a position to
express her consent - Under the statutory framework, she was
entitled to give her cons.~nt for termination of pregnancy - Evidently,
she did not desire to bear a child - In such circumstances, there
was no reason on the par.t of hospital authorities not to have
proceeded for termitJation of pregnancy.
E
F
ss.2, 3(4)- "Guardian" - Consent of - When not neededAppellant, a mentally retarded rape vict~m, sought termination of
pregnancy - Hospital authorities instead of proceeding with the
termination of pregnancy called the father of the appellant to sign
the consent form - Plea of appellant that she being a destitute woman
G
there was no justification to obtain the consent of her father or
husband for termination of pregnancy - Held: The concept of
consent by a guardian in the case of major should not be over
emphasized - There was no reason whatsoever to implead the
husband and father of the appellant - High Court should have H
214
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A
been more alive to the provisions of the Act and the necessity of
consent only of the appellant in the facts of the case.
s.3(2), (4) Explanation 1 - Grave injury to mental health -
Statutory presumption of - Held: Where any pregnancy is alleged
by the pregnant woman to have been caused by rape, the anguish
B caused by the same has to be presumed to constitute a grave ifijury
to the mental health of the pregnant woman - Once such a statutory
presumption is provided, the same comes within the compartment of
grave injury to mental health.
c
Women We(fare/Development - Termination of Pregnancy:
Duty of High Court - Held: High Courts required to be more
sensitive while dealing with matters relating to termination of
pregnancy - Constitution of India - Art.226.
Duty of hospitals - Held: Element of time is extremely
significant in a case of pregnancy as every day matters - Therefore,
D hospitals should be absolutely careful and treating physicians should
be well advised to conduct themselves with accentuated sensitivity
so that the rights of a woman is not hindered - The fundamental
concept relating to bodily integrity, personal autonomy and
sovereignty over her body have to be given requisite respect while
E taking the decision.
F
Remedy - Public law remedy - Grant of compensation under.
for negligence and suffering of a person for which State authorities
were responsible - Difference from compensation u/s.357A,
CrPC - Appellant, a mentally retarded rape victim, was denied
termination of pregnancy by government hospital - Held: Appellant
suffered grave injury to her mental health - The said injury is in
continuance - Despite the prompt attempt made by Supreme Court
to get her examined so that she need not undergo the anguish of
bearing a child because she is a victim of rape, it could not be so
done as the medical report states that termination of pregnancy at
G this stage was risky to the life of the victim - This situation could
have been avoided had the decision been taken at the appropriate
time by the government hospital at Patna - State authorities are
responsib/e for the negligence and the suffering of appellant -
Keeping in view the mental injury that the appellant had to suffer,
H she is entitled to be compensated under public law remedy.
MS. Z v. THE STATE OF BIHAR
215
Doctrines/Principles - Principle of State Interest - NonA
applicability of - Held: The State contested the matter before the
High Court on the foundation of State interest - The principle of
State interest is not at all applicable to the present case.
Maxims - actus curiae neminem gravabit - Inapplicability ofAppellant, a mentally retarded rape victim was denied termination
B
of pregnancy by government hospital - State authorities held
responsible for negligence and, for the suffering of appellant -
Direction to State to pay Rs. 10 lakhs as compensation - Plea of
State that it had shown an affirmative attitude and if any delay has
been caused, it is because of the expression of the view by the High
Court for which the State cannot be found fault with and the said C
maxim protected the action of the State -Held: Despite its bro(Jd
connotation, the said maxim is not attracted to the obtaining factual
matrix inasmuch the compensation was granted because of the delay
caused by the authorities of govt. hospital.
Allowing the appeal, the Court
HELD: 1.1 The Legislature intended to liberalize the
existing provisions relating to termination of pregnancy keeping
in view the danger to life or risk to physical or mental health of
D
the woman; on humanitarian grounds, such as when pregnancy
arises from a sex crime like rape or intercourse with a lunatic E
woman, and eugenic grounds where there is substantial risk that
the child, if born, would suffer from deformities and diseases.
[Para 18) [233-C-D]
1.2 Explanation 1 to sub-section (2) of Section 3 of the
Medical Termination of Pregnancy Act, 1971 postulates that
F
where any pregnancy is alleged by the pregnant woman to have
been .cause.d by rape, the anguish caused by the same has to be
presumed to constitute a grave injury to the mental health of the
pregnant woman. Once such a statutory presumption is provided,
the same comes within the compartment of grave injury to mental
G
health. Sub-Section (4) of Section 3 requires consent of the
guardian of a minor, or a major who is mentally ill person. [Para
21) [235-B-C]
2.1 In the factual score of the present case, the approach
of the High Court is completely erroneous. The report submitted H
216
SUPREME COURT REPORTS
[2017) 8 S .C.R.
A
by the IGIMS stated that termination of pregnancy may need
major surgical procedure along with subsequent consequences
such as bleeding, sepsis and anesthesia hazards, but there was
no opinion that the termination could not be carried out and it
was risky to the life of the appellant. There should have been a
8
query in this regard by the High Court which it did not do. That
apart, the report shows that the appellant, who was a writ petitioner
before the High Court, was suffering from mild mental retardation
and she was on medications and her condition was stable and she
would require long term psychiatry treatment but she was in a
position to express her consent. She did not desire to bear a
C child. The Medical Board had not stated that she was suffering
from any kind of mental illness. The appellant was thirty-five year
old at that time. She was a major. She was able to allege that she
had been raped and that she wanted to terminate her pregnancy.
Under the statutory framework, she was entitled to give her
D consent for termination of pregnancy. She had gone from a women
rehabilitation centre, gave her consent for termination of
pregnancy and had alleged about rape committed on her, but the
termination was not carried out. In such a circumstance, there is
no fathomable reason on the part of the government hospital not
to have proceeded for termination of the pregnancy because there
E
was nothing on record to show that there was any danger to the
life of the victim. Thus, there has been negligence in carrying
out the statutory duty, as a result of which, the appellant has been
constrained to suffer grave mental injury. [Paras 23, 26 and 39)
(236-B-D; 238-E-F; 244-A-C]
F
Suchita Srivastava and another v. Chandigarh
. Administration (2009) 9 SCC 1 - held inapplicable.
2.2 It is noted now that as per the report of the Medical
Board at AIIMS which was constituted as per the direction of
this Court on 3rd May, 2017 termination of pregnancy could have
G been risky to the life of the appellant. This situation could have
been avoided had the decision been taken at the appropriate time
by the government hospital at Patna. For the negligence and
carelessness of the hospital, the appellant has been constrained
to suffer. The mental torture on certain occasions has more
grievous impact than the physical torture. There was no
H
MS. Z v. THE STATE OF BIHAR
217
justification to push back her rights and throw her into darkness A
to corrode her self-respect and individual concern. She had
decided to exercise her statutory right, being a victim of rape,
not to bear the child and more so, when there is possibility of the
child likely to suffer from HIV+ve, the authorities of the State
should have been more equipped to assist the appellant instead
B
of delaying the process. That apart, the.State in a way contested
the matter before the High Court on the foundation of State
interest. The principle of State interest is not at all applicable to
the present case. Therefore, the concept of grant of compensation
under public law remedy emerges. [Paras 43, 44 )[245-E, G-H;
246-A)
C
3.1 In the instant case, it is luminescent that the appellant
has suffered grave injury to her mental health. The said injury is
in continuance. It is a sad thing that despite the prompt attempt
made by this Court to get her examined so that she need not
undergo the anguish of bearing a child because she is a victim of D
rape, it could not be so done as the medical report clearly stated
that there was risk to the life of the victim. The continuance of
the injury creates a dent in the mind and the appellant is compelled
to suffer the same. One may have courage or cultivate courage
to face a situation, but the shock of rape is bound to chain and
E
enslave her with the trauma she has faced and cataclysm that she
has to go through. Her condition cannot be reversed. The situation
as is unredeemable. But a pregnant one, she has to be
compensated so that she lives her life with dignity and the
authorities of the State who were negligent would understand
that truancy has no space in a situation of the present kind. What
F
is needed is promptitude. [Para 53] [250-B-DJ
3.2 This Court had earlier directed that appellant should
be paid compensation under the Victims Compensation Scheme
as framed under Section 357-A of the Code of Criminal Procedure.
She has been paid Rs. 3,00,000/- as she has been a victim of G
rape. However, grant of com.pensation for the negligence and
the suffering for which the authorities of the State are responsible
is different as it comes within the public law remedy and it has a
different compartment. Keeping in view the mental injury that
the victim has to suffer, the appellant should get a sum of
H
218
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A Rs. 10,00,000/- (Rupees ten lakhs only) as compensation from
the State and the same shall be kept in a fixed deposit in her
name so that she may enjoy the interest. It is so directed as it is
wanted that money to be properly kept and appropriately utilized.
It may also be required for child's future. That apart, it is directed,
B that the child to be born, shall be given proper treatment and
nutrition by the State and if any medical aid is necessary, it shall
also be provided. If there will be any future grievance, liberty is
granted to the appellant to approach the High Court under Article
226 of the Constitution of India after the birth of the child.
c
(Para 54) (250-E-Hl
4. It is further necessary to state that the Single Judge
should have been more alive to the provisions of the Act and the
necessity of consent only of the appellant in the facts of the case.
There was no reason whatsoever to implead the husband and
father of the appellant, as it is beyond an iota of doubt that the
D appellant was a destitute, a victim of rape and further she was
staying in a shelter home. Calling for a medical report was
justified but to delay it further was not at all warranted. It needs
to be stated that the High Courts are required to be more
sensitive while dealing with matters of the present nature. (Para
E
551 (251-A-BJ
F
5. According to the State, it should not be made liable
because of the fault of the Court. The principle of actus curiae
11eminem gravabit basically means an act of the court shall
prejudice no man. Though such a principle has been advanced
yet the same is not applicable to the facts of the case at hand.
The aforesaid principle despite its broad connotation is not
attracted to the obtaining factual matrix inasmuch compensation
is granted because of the delay caused by the hospital authorities.
(Para 561 [251-C-D, GI
6. India has ratified the Convention on the Elimination of
G All Forms of Discrimination Against Women (CEDAW) in 1993
and is under an international obligation to ensure that the right
of a woman in her reproductive choices is protected. Articles 11
of the said Convention provides that all State parties shall ensure
the right to protection of health and to safety in working conditions,
H including the safeguarding of the function of reproduction. Article
MS. Z v. THE STATE OF BIHAR
219
12 of the Convention stipulates that State parties shall take all A
appropriate measures to eliminate discrimination against women
in the field of health care in order to ensure, on a basis of equality
of men and women, accesses to health care services, including
those related to family planning. [Para 571 [251-G-H; 252-A-BI
7. The legislative intention of 1971 Act prominently B
emphasises on personal autonomy of a pregnant woman to
terminate the pregnancy in terms of Section 3 of the Act. Recently,
Parliament has passed the Mental Healthcare Act, 2017 which
has received the assent of the President on 7th April, 2017. The
said Act shall come into force on the date of notification in the
official gazette by the Central Government or on the date of C
completion of the period of nine months from 7th April, 2017. The
same is referred only to highlight the legislative concern in this
regard. It has to be borne in mind that element of time is
extremely significant in a case of pregnancy as every day matters
and, therefore, the hospitals should be absolutely careful and D
treating physicians should be well advised to conduct themselves
with accentuated sensitivity so that the rights of a woman is not
hindered. The fundamental concept relating to bodily integrity,
personal autonomy and sovereignty over her body have to be
given requisite respect while taking the decision and the concept
of consent by a guardian in the case of major should not be over E
emphasized. [Para 581 [252-C-FI
8. In view of the aforesaid analysis, the appeal is allowed
and the order passed by the High Court is set aside except for
the direction pertaining to investigation carried out on the basis
of the FIR lodged by the appellant. [Para 59] [252-F-G]
F
Nilabati Behera v. State of Orissa (1993) 2 SCC
746:[1993] 2 SCR 581; Sube Singh v. State of Haryana
(2006) 3 SCC 178: [20061 2 SCR 67; Hardeep Singh
v. State of MP (2012) 1 SCC 748; Chairman, Railway
Board and others v. Chandrima Das (Mrs.) and others
G
(2000) 2 SCC 465: [2000] 1 SCR 480; Rini Johar and
another v. State of Madhya Pradesh and others (2016)
11 SCC 703; D.K. Basu v. State of West Bengal (1997)
1 SCC 416:[19961 10 Suppl. SCR 284 - relied on.
H
220
A
8
c
D
E
SUPREME COURT REPORTS
[2017] 8 S.C.R.
Meera Santosh Pal v. Union of India AIR 2017 SC
461:(2017) 1 SCR 261; Xv. Union of India and others
AIR 2017 SC 1055; Xv. Union of India and others
AIR 2016 SC 3525; Sheetal Shankar Salvi and another
v. Union of India 2017(5) SCALE 428; Ms. Eera Thr.
Dr. Manjula Krippendorf v. State (Govt. of NCT of
Delhi) and another 2017 (8) SCALE 112; Mehmood
Nayyar Azam v. State of Chhattisgarh (2012) 8 SCC 1:
[2012) 8 SCR 651 - referred to.
Case Law Reference
[2017) 1 SCR 261
referred to
Para 9
AIR 2017 SC 1055
referred to
Para9
AIR 2016 SC 3525
referred to
Para 9
2017(5) SCALE 428
referred to
Para9
(2009) 9 sec 1
held inapplicable
Para 9
[1993) 2 SCR 581
relied on
Para 15
[1996) 10 Suppl. SCR 284
relied on
Para 15
[2000) 1 SCR 480
relied on
Para 15
2017 (8) SCALE 112
referred to
Para 38
[2012) 8 SCR 651
referred to
Para 44
(20061 2 SCR 67
relied on
Para 47
(2012) 1 sec 748
relied on
Para 48
(2016) 11 sec 103
relied on
Para 51
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10463
F of2017.
From the Judgment and Order dated 26.04.2017 of the High Court
of Judicature at Patna in Civil Writ Jurisdiction Case No. 5286 of2017. ·
Ms. Vrinda Grover,Archit Rajpal, Ms.Arnita V. Joseph, T. Mahipal,
G Advs. for the Appellant.
Ms. Abba R. Sharma, D. S. Parmar, Ms. Sujeeta Srivastava, Vibhu
Shankar Mishra, G S. Makker, Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. I. An interlocutory application being I.A.
H No. 64980 of 2017 has been filed seeking certain directions. Having
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.]
221
heard learned counsel for the parties, it is directed that name of the A
appellant in the cause title be substituted with Ms. Z so that her identity
is not revealed; the Registry of the Court shall substitute the name of the
appellant with Ms. Zin all records, including on the official website of
this Court, and the Registry of the High Court of Patna shall substitute
the name of the appellant with Ms.Zin all records, including the official
B
website of the High Court. Leave is granted to the appellant to seek
substitution of her name with Ms. Z on all search engines such as
google.com, legal websites such as indiakanoon.org as well as legal
journals. Interlocutory application is accordingly allowed .
•
2. The factual score that has been depicted in the instant appeal
is reflective of a retardant attitude and laxness to the application of the
C
provisions oflaw at the appropriate time by the authorities that can cause
a disastrous affect on the mind of a hapless victim. And the victim here
is a destitute woman, who was brought to a shelter home from the
footpath, as she was not wanted by her husband and her family, living in
abject poverty and being scared of social stigma could not afford her a D
home. Sans a sense of belonging, she was brought to 'Shanti Kutir', a
shelter home, run by an organization named Youth Mobilization for
National Advancement (YMNA) under the Mukhyamantri Bhikshavriti
Nivaran Yojna a scheme floated by the Government ofBihar for destitute
women. The woman, a destitute, was found to be pregnant by the
functionaries of the home and further being aware of the fact that she
E
had been condemned to that condition because of rape 1:ommitted on
her, the competent authority of the home took her to the hospital for
termination of pregnancy with her consent. Though the steps taken by
the shelter home were prompt, yet delay was caused by the authorities
of the hospital. The delay in such a situation has the seed that can cause
·depression to a woman, who is already in despair. And this despair has
the potentiality to drive one on the path of complete distress. In such a
situation, the victim in a state of anguish may even think of surrendering
F
to death or live with a traumatic experience which can be compared to
have a life that has been fragmented at the cellular level. It is because
the duty cast on the authorities under the Medical Termination of G
Pregnancy Act, 1971 (for brevity, 'the Act') is not dutifully performed,
and the failure has ultimately given rise to a catastrophe; a prolonged
torment. That is the sad narrative of the victim appellant.
3. The appellant, a thirty-five year old woman, was living on the
footpath in Phulwarisharif, Patna. On 25th January, 2017, she was brought H
222
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A to Shanti Kutir. The medical test done by Shanti Kutir showed that she
was pregnant. On 2
11ct February, 2017, she was taken to Patna Medical
College Hospital, Patna (PMCH), for medical examination. On 81h
February, 2017, an ultrasound test was done at PMCH, and it was found
that she was 13 weeks and 6 days pregnant. On 41h March, 2017, she
B
expressed her desire to terminate the pregnancy and, accordingly, she
was taken to PMCH for further medical examination. At that juncture,
the appellant revealed that she had been raped and, therefore, the
pregnancy should be terminated. On l 4'h March, 2017, she was taken
to PMCH for termination and her father and brother were called and
made to sign a consent form, which they duly signed. However, the
C hospital authorities did not proceed with the termination of the pregnancy.
It is worthy to mention here that on ]81h March, 2017, an F.I.R. under
Section 376 of the Indian Penal Code (!PC) was registered with Mahila
Police Station, Patna as Case No.13 of2017. The Home Superintendent,
Shanti Kutir wrote to the Superintendent of Patna Medical College and
0
Hospital, Patna, stating, inter alia, that the pregnancy is more than 17
weeks and a divorce petition had been filed by the husband, and the
father and the brother of the appellant expressed their inability to take
her with them because of social and financial constraints. On 3'd April,
2017, she was again taken to PMCH, but the termination was not carried
out and, by that time, her pregnancy was 20 weeks old. As the factual
E narration would reveal, the appellant was found to be HIV+ve.
4. As the pregnancy was not carried out, the appellant approached
the High Court in C.W.J.C. No. 5286 of2017 with the prayer to ascertain
the physical condition including the stage of pregnancy and to direct for
termination of pregnancy as she had been sexually assaulted and further
F she was HIV+ve. The High Court, on IO'h April, 2017, permitted the
counsel for the victim to implead the husband and her father and the
Director oflndira Gandhi Institute of Medical Sciences, Patna (IGIMS).
Thereafter, the learned single Judge directed for constitution of a Medical
Board at IGIMS, Patna, to assess the physical and mental condition of
the writ petitioner therein and the fetus. On that day, the High Court also
G directed the Home Superintendent, Shanti Kutir, a Women Rehabilitation
Centre, to file a counter affidavit. Similar direction was issued to the
State of Bihar and Superintendent of PMCH. A further direction was
given by the High Court to the Senior Superintendent of Police, Patna, to
submit an interim report with regard to the progress of investigation in
H Mahila P.S. Case No.13 of2017.
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.]
223
5. It is apt to note here that the Director, IGIMS, Patna was A
directed to constitute a Multi Disciplinary Medical Board consisting of
Heads of Department of Gynecology, Neurology and Forensic Medicine.
Liberty was granted to the Director, IGIMS to nominate one or more
doctors as members of the Multi Disciplinary Medical Board to examine
the victim with regard to physical and mental state and the condition of B
the fetus. The writ petitioner was directed to make herself present
beforethe Director, IGIMS, on !Ith April, 2017at10.30 a.m. The IGIMS
examined the victim and submitted a report in a sealed cover.
6. As the factual matrix would further uncurtain, on l 81h April,
2017, the High Court took note of the fact that the name of the appellant's
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husband had been wrongly mentioned and a direction was issued to
make dasti service on the husband and the father through the Officer
In-charge of the local police station and the matter was fixed for 20'h
. April, 2017. On 20'h April, 2017, the matter could not be taken up and
stood adjourned to 21 ''April, 2017. On the adjourned date, the father of
the appellant prayed for time to file counter affidavit. The High Court D
expressed its displeasure that despite the specific direction, the Senior
Superintendent of Police, Patna, had not filed any counter affidavit,
although a submission was made by the learned Additional Advocate
General that he had been intimated by the Senior Superintendent of Police
that the investigation was in progress and likely to be over within six
months. Thereafter, the High Court proceeded to determine the issue
E
whether the victim, who is HIV+ve and is carrying a pregnancy of 24
weeks could be allowed to have medical termination of pregnancy under
the Act. The stand of the Government before the High Court was that.
the victim was being provided with all facilities to survive in rehabilitation
centre and the pregnancy could not be terminated because the identity
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of the father of the victim was not established and he had refused to
swear an affidavit in this regard and subsequently escaped from the
scene. The stand of the father of the victim before the High Court was
that he did not have any objection for getting the pregnancy terminated.
The husband, the respondent No. 8 before the High Court, admitted that
he had entered into wedlock with the victim and in the said wedlock two
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children were born, but the victim had deserted him in March, 2007, and
the said circumstances led him to file Matrimonial Suit No. 984 of2015
before the.Principal Judge, Family Court, Patna, seeking dissolution of
marriage.
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[2017] 8 S.C.R.
7. The High Court perused the report submitted by IGIMS, which
suggested that the pregnancy was 20 to 24 weeks old and the terminati,on
of pregnancy would require major surgical procedure along with the
subsequent consequences such as bleeding, sepsis and anesthesia hazards.
The report that was filed by IGIMS, which has been referred to by the
High Court, needs to be reproduced:
Issues
Opinion
I. Examination report of the Physical
Examination:
Pulse
-
patient (petitioner) with regard
100/min regular, BP-114/80 mmHg,
to her physical and mental Pallor-Mild, lcerus-NIL, edema-Nil,
stage
(Physical
Medical Cyanosis & clubbing-Nil, JVP -
examination of all system will normal, Chest - B/L clear no added
be desirable:
sound; CVS-S 1 & S2 - Normal, no
Respiratory, CVS, Neurology added sound; PIA exam- fundal height
etc.
corresponds to 22-24 wk pregnancy;
CNS - Higher mental function intact,
no
focal
neurological
deficit.
Mentally alert, well oriented with
time, place & person (Annexure I)
2. Stage of Pregnancy.
2•u trimester of approximately 23 wks
(as per l '' USG report of whole
abdomen on 08.02.2017 of PMCH.
And
IGIMS,
USG
on
dated
11.04.2017
shows
21
wks
fetus ..... (Annexure-II)
According to recommendations 1 '' i.e.,
earliest USG is to be used for
Gestational age calculation.
3. Overall condition of foetus
Normal single
alive
intra-uterine
foetus (As per Physical examination
and USG report)
4. How far the termination of Termination of Pregnancy at this stage
pregnancy will be detrimental sometimes may need major surgical
to the petitioner.
procedure along with the subsequent
consequences such as Bleeding, Sepsis
and Anesthesia hazards.
5.
How far
it
will
be The patient can continue pregnancy
detrimental, if the petitioner is according to NACO guidelines. Still
allowed to complete full term there is likelihood that fetus may be
of pregnancy.
HIV+ve. But definitive diagnosis can
only be given when the child is 18
months old.
\
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MS. 'z v. THE STA\E OF BIHAR [DIPAK MISRA, J)]
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6.
How far it will be
detrimental to the petitioner
and foetus, particularly in view
of the fuct that she is mentally
abraised and HIV+VE.
7. Investigation reports
As per the clinical assessment &
documental)' evidence, the patient is
diagnosed to have Psychiatry illness,
provisionally Schizophrenia with Mild
Mental Retardation. She is currently
on medications and behaviourally
stable and will require long term
psychiatry treatment.
Reports which are made available
before· the Board Members are .....
Annexure-III.
225
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Some investigation reports which are
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not available at IGIMS like CD4 +T ·
Lymphocyte count, Serum HIV RNA
level (Viral load) and Triple Marker
Maternal Blood test advised by
concerned members are still awaited,
after which progression of HIV and
through
maiker
congenital
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abnormality of foetus can be assessed.
8. The learned Single Judge, after referring to the provisions of
the Act, observed thus:
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"In the present case, the medical report does not suggest that
~··
the foetus is suffering from any abnormality. It further does not
'\
suggest that the foetus has already been infected with HlV+ve.
\.
It only predicts that any definite opinion can be given only when
the child attains the age of 18 months. The Medical report further
does not suggest that ifthe victim is allowed to cany the pregnancy
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to its full course, then she will suffer any risk of life or !,'Tave
injury to her physical or mental health. Explanation 1 of SubSection 2 of Section 3, provides that such pregnancy which is
alleged to have been caused by rape shall be presumed to
constitute grave injury to the mental health of the pregnant
woman. In the present case, the victim has alleged that she had G
been ravished, but her conduct of not disclosing the incident of
rape for more than 13 weeks and deciding not to get the pregnancy
terminated for more than 20 weeks, as the writ application has
been filed after 20 weeks of pregnancy i.e. on 07.04.2017, prima
facie, does not suggest that such alleged conceivement has really H
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SUPREME COURT REPORTS
[2017] 8 S.C.R.
caused grave injury to the mental health of the victim. Moreover,
the termination, as contemplated under Section 3 of the Act,
1971, is only permissible up to 20 weeks of pregnancy. Definitely
the effort for termination was made on behalf of the victim in
the 17'h week of pregnancy, but the present writ application has
been filed before this Court after 20 weeks of her pregnancy."
9. After so stating, the High Court adverted to Sections 3 to S of
the Act and opined that the provisions are not applicable to the writ
petitioner. The learned Single Judge also referred to Section 10 of the
Human Immunodeficiency Virus and AIDS (Prevention and Control)
Act, 2017 and distinguished the decisions rendered in Meera Santosh
C Pal v. Union of lndia1, X v. Union of India and otliers1 and X v.
Union of India and others3. He placed reliance on Sheetal Shankar
Salvi and another v. Union of India', wherein this Court has declined
termination of 20 weeks of pregnancy. The High Court, thereafter,
adverted to the statement of law in Suchita Srivastava and another v.
D Chandigarh Administration5 and reproduced certain paragraphs and
took note of the concept that in the case of a pregnant woman and
'compelling State interest' and further adverted to the doctrine of'parens
patriae' where in certain situations the State must make decisions in
order to protect the interest of those persons who are unable to take
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care of themselves. Thereafter, the learned single Judge adverted to the
two standards, namely, 'best interests' test and 'substituted judgment'
test as laid down in Suchita Srivastava (supra). The High Court also
dwelled upon the role of the court that it must undertake a careful inquiry
of the medical opinion on the feasibility of the pregnancy as well as
social circumstances faced by the victim.
10. After so stating, the learned Single Judge delved into the factual
score projected in the writ petition and opined thus:
"In the present case also, in the 'best interest' of the victim and
the foetus, this Court finds no reason to exercise the jurisdiction
under Article 226 of the Constitution of India for directing the
pregnancy to be terminated in its 23-24 weeks, particularly such
termination of preb'llancy, as per the Medical Board report would
I AIR 2017 SC 461
2 AIR2017 SC 1055
'AIR 2016 SC 3525
4 2017 (5) SCALE 428
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'(2009) 9 sec 1
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.]
227
be hazardous. to the life of the victim. However, keeping in view A
the fact that the victim was leading a life of destitute and she has
been almost deserted by her husband, her father, her brother
and her sister, as none of them in their counter affidavit have
stated that they are ready to take her to their house, this Court
feels that she will be safe if she is allowed to remain in
rehabilitation centre, Shanti Kutir so long she desires.
Mr. Kaushal Kumar Jha, learned AAG-8 submits that the
rehabilitation center is run by the Government and the Government
is ready to provide all medical facilities, as well as amenities of
day to day life to the victim.
In the circumstances, it is expected from the Superintendent,
PMCH to get the victim medically examined every month or so
B
c
and provide all medicines or other medical facilities required for
carrying the pregnancy to its full term and bringing up the child
after its birth, till the child attains the age of five years. The
Superintendent, PMCH would ensure to provide the victim with D
necessary medical cover in light of the direction made above.
This Court is hopeful that the NGO will take care of the
victim and provide all the facilities for the post-natal care.
In the circumstances, in the interest of justice and in the
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interest of victim and foetus/prospective child, this Court is not
inclined to permit the medical terminaton of pregnancy of the
victim."
11. After so holding, the learned Single Judge issued certain
directions, which are to the following effect:
(i) Respondent No.4 will get the bank account of the victim
opened within a period of one week, if she does not have one.
(ii) Respondent Nos.7 and 8, the father and the husband of the
victim will deposit Rs.1,000 and Rs.1,500/-, respectively, p.er
month in the account of the victim from May, 2017.
(iii) Ifrespondent N os.7 and 8 make default in payment on three
consecutive occasions, of the installment of the aforesaid amount,
then any of the concerned parties would be at liberty to file an
application before this Court and respondent Nos. 7 and 8 will be
answerable to this Court, in this regard.
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[2017] 8 S.C.R.
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(iv) Respondent Nos.7 and 8 will provide their mobile number to
the respondent No.4 and shall visit the victim every month.
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(v) Respondent No.4 shall allow the relatives and husband of
the victim to meet her.
(vi) One copy of the report of the Medical Board will be kept
with the records of the present case and one copy of the
conclusive medical report will be transmitted to respondent No.4
by the Director of IGIMS, Patna.
(vii) The Director, IGIMS, Patna will transmit the awaited medical
report of the victim, as mentioned in Clause-7 of the report of
the Medical Board, to respondent No.4."
12. The High Court decided the matter on 26th April, 2017. When
the said order was challenged, the present appeal was taken up on 3ru
May, 2017. The learned counsel for the appellant referred to the facts
as asserted in the special leave petition which is evincible from the order
D of the High Court. Though the Union of India is not a party, Mr. P.S.
Narasirnha and Mr. Tushar Mehta, learned Additional Solicitors General
were asked as to whether arrangements could be made for the appellant
to come to Delhi to be examined by a Medical Board at All India Institute
of Medical Sciences (AIIMS), New Delhi. Learned counsel for the
E appellant, after obtaining instructions, stated that she is inclined to be
examined by the Medical Board at AIIMS. Taking note of the same, the
Court directed as follows:
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"Mr. P.S. Narasirnha and Mr. Tushar Mehta have submitted that
a member from the Non Governmental Organization, namely,
Koshish-TISS, the respondent No.5 hereing, should accompany
the petitioner to Delhi. As far as the travel is concerned, Mr.
Narasirnha and Mr. Mehta spoke in unequivocal voice that the
arrangements shall be made for the petitioner and the
accompanying member so that they can come to Delhi where
further arrangements shall be made for their stay and the
petitioner can be examined by the Medical Board at AIIMS latest
by 6'h May, 2017.
The report of the Medical Board shall be produced before
this Court and we would also request Mr. Narasirnha and Mr.
Mehta to assist the Court on the issue and also to have some
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discussion with the doctors, for we are concerned with saving a
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.]
229
life of a destitute woman. As we are inclined to think that a A
woman, who has already become a destitute being sexually
assaulted and suffering from a serious medical ailment, not to go
through further sufferings. The quientessential purpose of life,
be it a man or a woman, is the dignity oflife and all efforts are to
be made to sustain it."
13. In pursuance of the order passed by this Court, the Medical
.Board at AIIMS examined the appellant. The opinion of the Medical
Board was that the procedure involved in termination of the pregnancy
B
is risky to the life of the appellant and the fetus in the womb.