MAHIMA Vs. STATE

JUDGEMENT

(1.) The petitioner has been placed in a piquant situation by the Magistrate as well as by the learned Sessions Judge. She had filed a complaint under Sections 366A/376/506(2), IPC against respondent for having been raped. According to her she became pregnant on account of the act of rape. On her representation she was sent for medical examination. The pregnancy test which was conducted on 23rd June, 2003 was found to be positive, though the occurrence is said to be have taken place on 24th May, 2003.

(2.) In order to preserve her honour and her repugnance to have a child born out of rape she moved an application before the learned Magistrate for permission to terminate her pregnancy and for preservation of foetus and DNA test for the purpose of evidence that she was raped by the accused-respondent. The learned Magistrate dismissed the application but with the observation that there is no provision in the aforesaid Act for intervention by the Court as it is the prerogative of the aggrieved party to decide whether she wants to terminate the pregnancy or not. Aforesaid order was affirmed by the learned Additional Sessions Judge when the complainant filed a revision petition. It appears that both the Courts below lost sight of the fact that the complainant had primarily moved the application for preservation of foetus and conducting the DNA test as a piece of evidence against the respondent-accused.

(3.) So far as the termination of pregnancy by a woman is concerned, it is governed by Section 3 of the Medical Termination of Pregnancy Act, 1971. According to this any woman has the option to get the pregnancy terminated by a registered medical practitioner, if it does not exceed 12 weeks. If the duration of the pregnancy exceeds 12 weeks but does not exceed 20 weeks such a termination can be done by not less than two registered medical practitioners, who will give the opinion whether the continuance of the pregnancy would involve a risk to the life of the pregnant woman and grave injury to her physical and mental health. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.