It is a matter of immense significance that none other than the Gwalior Bench of the Madhya Pradesh High Court has in an extremely laudable, learned, landmark and latest judgment titled SUO MOTO IN THE MATTER OF THE STATE OF M.P. vs FATHER OF PROSECUTRIX “A”, in Conc No. 415 of 2022 that was pronounced as recently as on October 27, 2022 held a girl and her father guilty of obtaining an order for termination of pregnancy on the false pretext that the prosecutrix was raped. It must be noted that the Court also held them guilty for non-appearance before the Court and continuously changing their stance during the course of the contempt proceedings. While holding them guilty on two counts of contempt, Hon’ble Mr Justice GS Ahluwalia lamented at the “sorry state of affairs” as the Court was misused to illegally obtain an order of abortion.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice GS Ahluwalia of Gwalior Bench of the Madhya Pradesh High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Contempt Petition has been registered on suo moto exercise of power by this Court by order dated 10-2-2022 passed in M.Cr.C. No. 7380 of 2022 (Sonu Parihar @ Nathu Vs. State of M.P.).”
To put things in perspective, the Bench then most notably observes in para 2 that, “This case shows a very sorry state of affairs, where some people in order to get rid of unwarranted pregnancy due to voluntary relationship with a close relative, have misused the lawful authority of this Court, by adopting a very innovative method. It is a very high time to put a check on this type of tendency, because the purpose of Medical termination of Pregnancy Act, 1971 is to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. Only specific pregnancies are to be permitted to be ended by licensed medical professionals. The primary objectives of the Act are also to reduce the death rate of women from unsafe and illegal abortions and to optimize the maternal health of Indian women. Only after this legislation, women are entitled to have safe abortions, but only under specific circumstances. However, the lawful authority of High Court cannot be permitted to be misused to terminate the unwarranted pregnancy by hiding the identity of the biological father of the child. Section 3 of Medical Termination of Pregnancy Act, 1971 deals with a situation under which the pregnancy can be terminated by a Medical Practitioner, which reads as under:
3. When pregnancies may be terminated by registered medical practitioners.—(1) Notwithstanding anything contained in the Indian 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.
(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.
(2-A) 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
(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 pregnancy would involve such risk of injury to the health as is mentioned in subsection (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
(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 1[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.”
Most fundamentally, the Bench then observes in para 3 that, “Thus, the purpose of this Act is to save the life of a pregnant woman or of grave injury to her physical or mental health, or where there is substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. However, the provisions of this Act cannot be used for killing an unborn baby in order to hide the identity of the biological father of the child or to by-pass any notice issued by the investigating officer.”
Be it noted, the Bench then notes in para 4 that, “The disturbing facts of the present case are that one Writ Petition No. 5723 of 2021 was filed by father ‘A’ of the prosecutrix ‘X’, for medical termination of her pregnancy, as not only she was minor but she was subjected to rape and FIR No. 25/2021 was also registered in Police Station Civil Lines, Distt. Datia for offence under Sections 363,343,376,376(2)(n), 120-B, 376(d), 109,366 of IPC and 5L/6,5/17 of POCSO Act.”
Briefly stated, the Bench then states in para 22 that, “Further as per the DNA test report, the accused Sonu Parihar was not the biological father of the fetus, whereas the prosecutrix was found to be the biological mother of the foetus, therefore, this Court by order dated 30-8-2022, directed the Superintendent of Police, Datia to further investigate in Crime No. 25/2021.”
It is worth noting that the Bench then enunciates in para 24 stating, “That, in overall investigation the Superintendent of Police Datia, District Datia reached the conclusion in following manner:
I. In respect of Biological father of fetus of prosecutrix, it is found that accused Bhagwat Yadav who is cousin brother of Prosecutrix is the biological father of the said foetus and accordingly,the separate FIR has been registered against him therein investigation is going on.
II. In respect of registration of FIR, I fact that the said FIR has been got registered by said [Name of father of prosecutrix which is masked].
III. In respect of signature of [Name of father of prosecutrix which is masked] on the affidavit and power filed with W.P. No. 5723/2021, I find that the signatures of [Name of father of prosecutrix which is masked] on the affidavit and Vakalatnama filed with said W.P. No. 5723/2021 was matched with the signature Shri Mehmood Khan.”
As we see, the Bench then mentions in para 25 that, “It is also stated in the status report, that the brother of the prosecutrix “B” disclosed that the prosecutrix is friend of Savita Yadav. Accordingly, Savita Yadav was interrogated who also stated that she had seen the prosecutrix and Bhagwat Yadav in objectionable condition, therefore, the blood samples of Bhagwat Yadav and Raja Yadav were collected and it has been found that Bhagwat Yadav who is the Cousin brother of the prosecutrix, is the biological father of the foetus and accordingly, crime No. 373/2022 at police station Civil Lines Datia has been registered under Section 376(2)(F) of IPC and under Section 5/6 of POCSO Act and Bhagwat Yadav has been arrested.”
Do note, the Bench points out in para 44 that, “As already pointed out, the Superintendent of Police, Datia after conducting further investigation has come to a conclusion that in fact the prosecutrix was seen in objectionable condition with her cousin brother Bhagwat Yadav, therefore, his blood samples were collected and the DNA of Bhagawt Yadav has matched and accordingly it has been found that Bhagwat Yadav is the biological father of the foetus and separate crime No. 373/2022 has been registered in Civil Lines, Datia and Bhagwat Yadav has been arrested. Thus, it is clear that the entire intention of the prosecutrix and her father was to hide the identity of Bhagwat Yadav. Without adverting to the correctness of the FIR lodged by the prosecutrix and her father in crime no. 25/2021 in Police Station Civil Lines, Datia, it is clear that ill-designs of the prosecutrix and her father started immediately after the prosecutrix got pregnant from Bhagwat Yadav. Further, there is nothing on record to show that Shri Mehmood Khan, Advocate was aware of the ill-designs of the Prosecutrix “X” and her father “A”. As already held that Shri Mehmood Khan, Advocate had no role to play except to file writ petition on behalf of father of prosecutrix, therefore, the unconditional apology tendered by Shri Mehmood Khan, Advocate can be considered, although he has committed an unpardonable mistake.”
Most strikingly, the Bench then minced no words to hold in para 62 that, “Thus, the conduct of the contemnors namely the prosecutrix and her father has shaken the very purpose of Medical Termination of Pregnancy Act, 1971 and this has great impact on the justice delivery system and has also lowered down the dignity of the Court. If the prosecutrix and her father are allowed to go scot free, then it would encourage others also to indulge in such type of activities. Therefore, the prosecutrix “X” and her father “A” are held guilty of committing Contempt of Court.”
Quite glaringly, the Bench then specifies in para 66 that, “In the present case, the prosecutrix “X”, her father “A” and her brother “B” have changed their version from time to time with an oblique motive. Further, they did not hesitate in alleging against the Trial Court as well as the Local Counsels.”
Even more glaringly, the Bench then hastens to add in para 67 that, “By order dated 20-6-2022, they were clearly specifically informed the charge on which they were required to show cause. Further, their reply is completely silent as to why the prosecutrix “X” and her brother “B” did not appear before the Trial Court on 2-6-2022. Further, they never prayed for examination of any witness nor cross-examination of any co-noticee including Shri Anil Awasthy, Advocate, against whom the Prosecutrix “X”, her father “A” and her brother “B” have leveled allegations.”
Most forthrightly, the Bench then mandates in para 68 that, “Accordingly, the father of the prosecutrix “A” is held guilty of committing second Contempt of this Court, for regularly changing his version and the prosecutrix “X” and her brother “B” are held guilty of committing of second Contempt of Court by not appearing before the Trial Court inspite of clear direction by order dated 5-5-2022. Accordingly, they are held guilty of committing Contempt of Court by flouting order dated 5-5-2022 and by changing their version with an oblique motive.”
Most conspicuously, the Bench then holds in para 69 that, “The prosecutrix “X”, her father “A” and her brother “B” are not present today. Looking to their previous conduct of not responding to the notice and bailable warrant which were issued against them at the very first instance, therefore, issue warrant of arrest against them for their appearance before this Court on 07th of November 2022 for hearing on the question of sentence.”
Finally, the Bench then concludes by holding in para 70 that, “List on 07th of November 2022.”
All told, we thus see that the Gwalior Bench of Madhya Pradesh High Court has on prima facie ground held daughter and father guilty of contempt for obtaining abortion order by filing false rape case. It is rightly pointed out in para 65 of this judgment that, “This mis-adventurous act of the prosecutrix “X” and her brother “B” in violating/flouting the order dated 5-5-2022 in the given facts and circumstances of the case, is clear example of gross contempt of Court.” The Bench also very rightly cites the leading case of the Supreme Court judgment in the high profile case of Zahira Habibullah Sheikh (5) v. State of Gujarat, reported in (2006) 3 SCC 374. On a candid note, I have just no words to voice my sheer praise for the meticulous manner in which Hon’ble Mr Justice GS Ahluwalia has penned down this most enlightening judgment citing most relevant case laws and I have mentioned only very key points and one must read this judgment in its entirety to understand each and every point of this most commendable judgment articulated most elegantly, eloquently and effectively for understanding it entirely!
Sanjeev Sirohi