1 CRA-38-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL REVISION APPLICATION NO. 38 OF 2010 Akhilesh Ramkumar Daga ... Applicant (Orig. complainant) Vs. Mrs. Deepti Akhilesh Daga & Ors. ... Respondents (Resp. Nos. 1 to 4 org. accused Nos. 1 to 4). Mrs. Revati Mohite Dere, Advocate, for the applicant Mr. M.S.Mohite, i/b. Shri M.R.Kocharekar, Advocate for the respondent No.1 - State. Smt. V.R.Bhosale, APP, for the respondent State. CORAM: J.H.BHATIA,J. DATE : 7th April, 2011. P.C. 1. This application is filed by the original complainant, who is husband of the respondent No.1,against the order of discharge passed by the Sessions Court in Revision Application filed by the respondents. 2. The applicant and respondent No.1 were married on 21.2.2007 at Bhubaneshwar and after some time they shifted to Mumbai and then to Pune. On 25.7.2007, the respondent No.1 left the house. According to her, she was beaten and assaulted while according to husband, she had left the house without his 2 CRA-38-10.sxw consent. Why she left the house is irrelevant for the purpose of deciding this application On 27.7.2007, she went to Ruby Hall Clinic of Grant Medical Foundation, Pune and at that time she was pregnant for 15.5 weeks On 28.7.2007, the pregnancy was terminated. The husband filed a complaint against his wife, mother-in-law and two others. Respondent No.3 is a friend of respondent No.1, who had taken her to the Hospital and respondent No.4 is the doctor who had terminated the pregnancy. The learned Magistrate issued the process against all the four accused under Sections 315, 379 and 380 of IPC. That order was challenged by the accused persons before the Sessions Court. After looking to the material placed before the Sessions Court, and particularly the medical report, the Sessions Court was convinced that the allegations made by the husband were baseless. In the result, the learned Addl. Sessions Judge allowed the revision application and set aside the order about issuance of process. That order is challenged by the husband before this Court. 3. Heard the learned Counsel for the parties and perused the relevant documents. It appears that on 6.8.2007 i.e. about 12 days after leaving the matrimonial home, the respondent No.1/wife of the complainant, filed a complaint under Sec. 498A against the husband at Indore, where her parents reside. On 21.2.2008, the husband filed a divorce petition. On 9.5.2008, he filed this 3 CRA-38-10.sxw complaint under Sec. 379, 380 and 315 of IPC. He has secured copies of the medical papers from Grant Medical Foundation and has placed reliance on those documents to show that the wife was pregnant for 15.5 weeks on 27.7.2007 and she had terminated the pregnancy on the next day. According to him, she had terminated the pregnancy without his consent only because she did not want to have a child. The medical report from the Grant Medical Foundation reveals that she was taken to the Hospital and was examined on 27.7.2007 at 16.00 hrs. She had given history of fall from the stairs, followed by history of bleeding with passage of clots. It also shows F H S i.e. Foetus Heart Sound not traceable on doppler,and mild tenderness in lower abdomen. PV bleeding was present. Finally, the two doctors of the Hospital observed - "Imp - Primigravida with 15.5 weeks at gesta with H/o of fall with PV bleeding with absent FHS with low line placenta for termination" . It clearly indicates that there was a history of fall from stairs resulting in bleeding with clots from vagina and on doppler the foetus heart sound was not traceable indicating that foetus was dead and therefore it had become necessary for termination. 4. The learned Counsel for the petitioners placed reliance on the contents of the consent note which shows that the patient was not willing for Ultra Sonography, but wanted termination of the pregnancy as it could not be 4 CRA-38-10.sxw continued. However, before the above note, that she was not willing for ultra sonography, it was clearly mentioned that uterus was contracted and F H S was absent as per foetal doppler. In these circumstances, ultra sonography was not of much help to protect the pregnancy. In any case, taking into consideration these facts and circumstances, that the termination of pregnancy appeared to have become necessary. Though Section 315 of IPC provides for punishment for termination or abortion of the pregnancy. Section 3 of the Medical Termination of Pregnancy Act, 1971 provides exception to the same. Section 3 reads thus :- "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 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 twelve weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that - (i) the continuance of the pregnancy would involve a risk to 5 CRA-38-10.sxw 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 such physical or mental abnormalities as to be seriously handicapped." In view of clause (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, it may be terminated by a medical practitioner, if not less than two registered medical practitioners are of opinion, formed in good faith that 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 there is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities as to be serious handicapped. In the present case, as foetal heart sound was absent, which indicated that the pregnancy could not grow further and was dead. In such circumstances, to continue the same would be dangerous to the life of the woman. In view of this, the termination of pregnancy cannot be called illegal. 5. Taking into consideration all the facts and circumstances, I find that no case under Section 315 of IPC was made out. The complaint was filed by the husband on 9.5.2008 long after the pregnancy was 6 CRA-38-10.sxw terminated and long after the wife had filed a case under Sec. 498A and he himself had filed a divorce petition. Therefore, this case appears to be a counter-blast to the case filed by the wife. It is in these circumstances that the Sessions Court set aside the order issuing process. I find no illegality or irregularity in the same. 6. Therefore, the Revision Application stands rejected. (J.H.BHATIA,J.)