MEHTA,J. - (1.) The instant special appeal (writ) has been preferred by the State of Rajasthan & Ors. being aggrieved of the Judgment dated 17.10.2019 passed by the learned Single Bench of this Court in S.B. Civil Writ Petition No.14827/2019.
(2.) Brief facts relevant and essential for disposal of the instant appeal are noted herein below: The minor respondent No.1- writ petitioner was sexually assaulted whereby, she unfortunately conceived. The minor moved an application through her mother seeking permission for termination of her pregnancy before the Special Judge, SC/ST Act Cases, Churu who, vide order dated 16.09.2019, directed the Chief Medical Officer, Ratangarh, District Churu to get medical examination of the girl conducted so as to ascertain her physical and mental status and so also that of the foetus. The Court also indicated in its order that an assessment be made as to whether, looking at the physical condition of the minor victim, she was capable of safe child birth or not. A Medical Board was constituted at the Government Hospital, Churu, which examined the applicant on 16.10.2019 and gave its opinion in the following terms: "In opinion of Medical Board, she is 25 W 3 D pregnancy (by sonography) with single live fetus, her blood investigations are within normal limits and she does not have any complication of pregnancy. At present her condition seems to be suggestive that there is no serious threat to her life in termination of pregnancy. However, at the time of termination or after termination risk of known medical or surgical complication cannot be denied."
(3.) The opinion of the Medical Board was put up before the Special Judge who, initially fixed the matter on 25.09.2019 for the purpose of hearing the victim. Realising that the victim was a minor, the learned Special Judge, SC/ST Act Cases transferred the matter to the Court of the Special Judge, POCSO Act Cases, Churu who passed an order dated 27.09.2019 holding that the application was not maintainable because the length of gestation had gone beyond the threshold of 20 weeks prescribed by The Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as 'The MTP Act'). The Court observed that the relief, if any, could be extended to the applicant by the High Court in its writ jurisdiction. Thereupon, the victim preferred the above referred writ petition before this Court through her widowed mother. The matter was deferred on a couple of dates for seeking confirmation of the victim whether she was determined to get the pregnancy terminated or whether she could contemplate handing over the child to be born to some social organization or shelter home. Additional opinion was sought from the Medical Board, Churu whether the termination of the pregnancy would be conducive to the health of the girl or it could pose any serious threat to her life and body. The Medical Examination Report dated 16.10.2019 issued by the Medial Board comprising of five doctors was presented before the Court on 17.10.2019 wherein, an opinion was expressed that no serious threat to life or body would be posed if the applicant underwent termination of pregnancy which could be recommended by the High Court. However, the learned Single Bench, rejected the writ petition by the order dated 17.10.2019 turning down the prayer of the termination of the child's pregnancy holding that the foetus in womb had a right to life as guaranteed under Article 21 of the Constitution of India. The medical termination of pregnancy was denied and the application filed by an organization named 'Navjeevan Sansthan' to take custody of the child was allowed. The relevant paras of the impugned Judgment are quoted herein below for the sake of ready reference: "26. However, the entire scheme of Sec. 3 applies in two stages, one up to 12 weeks, and second from 12 to 20 weeks. In the case at hand, the threshold set by the Legislature has crossed as the pregnancy has crossed the cut-off period of 20 weeks. Sec. 5 takes into consideration the eventuality of 20 weeks threshold being crossed, and further limits the discretion available to permit termination of pregnancy. 27. What constitutes an agony is subjective and only the Petitioner can feel the real pain of being a victim of an act as abhorrent as Rape. No words can describe her pain, no expressions can meet her anguish. Given the predicament at hand, this Court feels constrained in applying the judgments cited, and is forced to take up a case-specific evaluation. This balancing exercise is necessitated due to the 20 weeks threshold having been crossed, where the mental agony is a relevant factor for permitting termination of pregnancy. Post the 20 weeks threshold, the mental agony remains, may even become more excruciating, but the Court cannot be unmindful of the voice of the 'yet to be born' - a fully alive prospective child in the womb. 28. While doing this balancing exercise, this Court has two very striking factors to reckon ? the adoloscent age of 'S' - 17 years; and that the petition has been filed by victim's widow mother. She can naturally see the social stigma and feel the turmoil of her daughter, but cannot possibly perceive the feeling of a mother carrying a baby. On the other hand is standing an NGO, which is more than willing to protect unborn life while assuring the dignified life of the petitioner. [Emphasis supplied] 29. The Medical Termination of Pregnancy is statutory in nature, with constitutional underpinnings, on the other hand the right to life is flowing directly from Art. 21. The Petitioner who is pregnant is carrying a life, and the "compelling State interest" in preserving life has to be balanced vis-a-vis the right of the Petitioner as a rape victim from suffering unnecessary mental agony. In this analysis, relying on the judgments cited above, this Court has to be alive to the excruciating mental agony of the Petitioner and it has to also hear the voice of the unheard "foetus in womb";a human being which too is alive, though yet to be born. 30. Taking strength from the constitutional position, where "bodily integrity" is a facet inter alia of the right to life, whereas "being alive" is the right to life; this Court is constrained to hold that the per-se right to life of the prospective child needs to be given precedence over the right of the Petitioner, particularly in the given situation. The Court being mindful of what the Petitioner would go through, and placing reliance on the law enunciated in Z v. State of Bihar, (2018) 11 SCC 572 (para 48-57) proposes to pass following directions for ensuring comfortable pregnancy and delivery, in a setup that must guarantee utmost privacy and respect for the dignity of the Petitioner. 31. Hence, right to life of the foetus is also required to be considered. Right to life guaranteed by the Constitution of India under Article 21 of the Constitution of India, cannot be invoked for the victim alone. Protection of Article 21 is as much available to the child to be born, unless protection of foetus poses an eminent threat to the life of mother. 32. In the facts obtaining in the present case, when the applicant society has volunteered, this Court is not inclined to permit medical termination of the pregnancy, as prayed by the petitioner 'S' and instead deems it appropriate in the interest of the 'yet to be born baby' to allow the application filed by the applicant ? Society ' Navjeewan Sansthan'. 33. However, with a view to strike the balance between the right to privacy of the victim 'S' and the right to life of the 'child to be born', this Court deems it appropriate to pass the following directions:- (i) To maintain the secrecy of her pregnancy, the State will ensure petitioner's admission in Nari Niketan, Jodhpur until her delivery and convalescence. ( ii) State will also permit petitioner's mother to live with her to give moral and emotional support. (iii) In case 'S' and her mother wish to live in their own residence, they may do so. ( iv) If the petitioner and her mother move to Nari Niketan, Jodhpur, the State will ensure safe delivery of the child at the place where she resides. (v) In case the petitioner refuses to be admitted to Nari Niketan, Jodhpur, the CMHO, Churu-respondent No.5 and if she comes to Nari Niketan, Jodhpur then CMHO, Jodhpur will ensure requisite pre-natal and post-natal medical care. (vi) After the birth of the child, the custody of the child will be handed over to the applicant "Navjeewan Sansthan", as soon as feasible, of course after taking consent of 'S', her mother and a fitness certificate of paediatrician. (vii) This Court has no doubt that the applicant society will take utmost care of the child to be born. (viii) For a period of 12 months, the society (Navjeewan Sansthan) will not give such child in adoption or otherwise. The petitioner shall have liberty to take back the custody of the child within the period interregnum, if she chooses so to do, after becoming major. (ix) Concerned CMHO shall take DNA sample of the child and ensure its handing over to learned AAG so that the same be forwarded to the concerned Court, in case it is required in the trial. (x) In the entire process, all concerned will ensure that secrecy of the pregnancy, anonymity of the petitioner and the 'child to be born' is maintained. (xi) It shall equally be the responsibility of the applicant society to ensure that the child does not know about his/her mother, and of course about the order instant." The State Government has approached this Court against the above Judgment in its capacity as the parens patriae in an endeavour to protect the rights of the possible victims claiming that the impugned Judgment impinges upon the fundamental right of victims of rape from seeking termination of a forced pregnancy. Hence, this special appeal.;