MS. Z versus THE STATE OF BIHAR AND OTHERS

Citation: [2017] 8 S.C.R. 212 · Decided: 17-08-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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 thirty-
E 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 needed-
Appellant, 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 re

Excerpt shown. Read the full judgment & AI analysis in Lexace.