Section 3 of the MTP Act, 1971 can be triggered in cases where rape is alleged; Not necessary to prove the allegation of rape”: Madhya Pradesh High Court

On July 27, 2021, the prosecutrix lodged a complaint before the Police Station Madhoganj, Gwalior, wherein she allegedly was friends on talking terms with the accused, Mr. Rocky Shakya, her neighbour. The accused allegedly began a physical relationship from 2016 with her, wherein the two engaged in regular sexual intercourse with each other; subsequently, the prosecutrix realized she was pregnant during a medical check-up on July 26, 2021. Upon the revelation of the pregnancy to the accused, he allegedly refused to marry her, wherein he allegedly dissuaded her against filing an FIR by threatening to kill her parents if any FIR was filed; however, the prosecutrix registered a case against the accused under Sections 376 (Punishment for Rape), 376 (2) (n) (Committing Rape Repeatedly on the Same Woman) and 506 (Causing Criminal Intimidation) of the Indian Penal Code, 1860. In the process of the investigation, the prosecutrix filed a writ petition under Article 226 of the Indian Constitution with the Madhya Pradesh High Court for the termination of her pregnancy, wherein Justice G. S. Ahluwalia dismissed the petition by saying that the sexual relationship of the prosecutrix with the accused was consensual in nature where she was in full knowledge about the consequences of her relationship. The judge quashed her appeal for medical termination of pregnancy. The judge held that the sexual relationship of the prosecutrix with the accused was consensual; this fact was divulged in the FIR filed by the prosecutrix according to the judge. Rape is explained in Section 3, Sub-Section 2, Clause B of the Medical Termination of Pregnancy Act, 1971 as an offence can be presumed to constitute a grave injury to the mental health of the victim, wherein the pregnancy can be terminated even after the elapse of the 12-week bar for pregnancies caused as outcome of rape; however, the judge ruled that the consent of the prosecutrix is true even if the same was allegedly provided on misrepresentation of fact (the promise of marriage) since the prosecutrix is mature enough to know the consequences of her actions per the judge.

The accused allegedly called the prosecutrix to his house at times when his parents were away from home, wherein the two would engage in consensual sexual intercourse. Four months before filing the FIR, similar circumstances befell the two; however, this time the prosecutrix allegedly refused to engage in sexual intercourse with the accused, wherein the accused allegedly committed rape on her without her explicit consent. When the pregnancy was revealed to the accused, he reeled back from his promise; hence, the prosecutrix claims that the sexual intercourse with the accused was on a false pretext of marriage. Justice G. S. Ahluwalia held that the prosecutrix was major at the time of conceiving (~April 2021) while being in deep love with the accused as stated by the prosecutrix in the FIR; hence, he added that the prosecutrix knows the pros and cons of consensual sex.

A two-judge divisional bench of Justice Sheel Nagu and Justice D. K. Agarwal looked into the aforementioned predicament.  The court ordered the prosecutrix to undergone medical examination in adherence to Section 3, Sub-Section 2, Clause B of the Medical Termination of Pregnancy Act, 1971, wherein the termination of any pregnancy between the gestation period of 12 weeks and 20 weeks occurs if and only if not less than two medical practitioners opine in good faith that the continuance of the said pregnancy poses either a risk to the life of the woman or a grave injury to the physical/ mental health of the woman. Upon the examination of the prosecutrix by two gynaecologists and one PG Medical Officer from District Hospital, Gwalior, it was found that the pregnancy was at 16 weeks and 6 days.

The bench downplayed the decision of the single judge by saying that the explicit presumption of consent on part of the prosecutrix without any examination of pieces of evidence is wrong because the consent was based on misrepresentation of fact on part of the accused that may or may not be true.

The bench held that the contention of rape within the MTP Act, 1971 need not necessarily be proven before the invocation of the provision, wherein the bench held that the pregnancy allegedly arises from rape as claimed by the prosecutrix and the pregnancy is under 20 weeks; hence, the bench upheld the desire of the prosecutrix to terminate her pregnancy before the completion of the said 20 weeks under Section 3, Sub-Section 2, Clause B of the MTP Act, 1971 as they felt that the rape has caused grave injury to the physical and mental health of  the prosecutrix.


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