Madras High Court
Velunatchiyar vs The Government Of Tamilnadu on 3 September, 2021
Author: G.Ilangovan
Bench: G.Ilangovan
W.P.(MD)No.14963 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE : 03.09.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
W.P.(MD)No.14963 of 2021
Velunatchiyar ... Petitioner
Vs.
1. The Government of Tamilnadu,
Represented by its Secretary,
Department of Health and Family Welfare,
Fort St.George,
Chennai – 600 009.
2.The Dean,
Government Rajaji Hospital,
Madurai.
3.The Inspector of Police,
All Women Police Station,
Sivagangai,
Sivagangai District.
(Crime No.19 of 2020) ... Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandumus, directing the 2nd respondent to terminate the
petitioner's redundant pregnancy according to the Medical termination of
Pregnancy Act, 1971 and consequently direct the respondent to send the
products of conception of unborn foetus to anyone of the Forensic Laboratory
for DNA testing and preserve the same for the purpose of evidence.
https://www.mhc.tn.gov.in/judis/
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W.P.(MD)No.14963 of 2017
For Petitioner : Mr.M.Benazir Begum
For Respondent : Mr.R.M.Anbunithi
Additional Public Prosecutor
ORDER
This petition has been filed seeking a direction to direct the second respondent to terminate the petitioner's redundant pregnancy according to the Medical Termination of Pregnancy Act, 1971 and consequently, direct the respondents to send the products of conception of unborn foetus to any one of the Forensic Laboratories for DNA Test and preserve the same for the purpose of evidence.
2. The petitioner is the victim in Crime No.19 of 2021 dated 06.08.2021 which was registered for the offences punishable under Sections 354(B), 354(C) 328, 376 and 509 IPC. Seeking termination of pregnancy, this petition has been filed mainly on the ground that because of the offence committed by the accused persons, she was conceived and the conception is seven weeks. Now, she does not want to bear the child because of humiliation.
3. The petitioner was present before this Court through video conference on 01.09.2021. This Court interacted with the petitioner to know about her willingness to abort the child. She has stated that she is willing to abort the child and no pressure from anyone came to her.
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4. The relevant provision of Section 3 of the Medical Termination of Pregnancy Act, 1971, is extracted here under:-
“Section 3 of the Medical Termination of Pregnancy Act, 1971:-
(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 the 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 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.
https://www.mhc.tn.gov.in/judis/ 3/8 W.P.(MD)No.14963 of 2017 Explanation I – where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in Sub-section (2), account may be taken of the pregnant woman's actual or reasonable 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 (mentally ill person) shall be terminated except with consent in wring of her guardian.
(b) Save as otherwise provide in clause(a), no pregnancy shall be terminated except with the consent of the pregnant woman.”
5. In the light of the above provision, CD file has also been called for and on perusal of CD file shows that on 07.08.2021, she was examined and found to be 8 weeks and two days gestation. So, she was directed to be examined by the HOD, O&G Department, attached to the Medical College Hospital, Madurai. She was taken to the medical examination, on 02.09.2021.
https://www.mhc.tn.gov.in/judis/ 4/8 W.P.(MD)No.14963 of 2017 She was subject to make examination by the HOD, O&G Department, by name, Dr.N.Sumathi, M.D. D.G.O and during the examination, it was found that she was 10 to 11 weeks pregnant. She is also suffering from Anemia. So, termination can be conducted by arranging the blood transfuses.
6. The concerned Doctor also appeared before the Court through video conference and this Court enquired the Doctor about her opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant women or of grave injury to her physical and mental health and there is a substantial risk if the child was born, it would suffer from physical or mental abnormalities as to be seriously handicapped.
7. The HOD, O&G Department, Medical College Hospital, Madurai, would state that even though, the petitioner is in anemic condition under proper care and after taking all the precautionary steps, the termination can be conducted. Before and after the termination, psychological counselling will also be given to the petitioner. So, she is of the opinion that by following the provisions of Medical Termination of Pregnancy Act, the termination can be conducted in the Government Medical College Hospital, Madurai and she has to be admitted immediately for that purpose.
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8. The Act itself prescribe that when the pregnancy has been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. So, this is sufficient to show that because of the rape and consequent pregnancy, it involves grave injury to the mental health of the petitioner, which is also confirmed by the Expert.
9. In the light of the above discussion, the petition is liable to be allowed and accordingly, allowed with the following directions:-
i) The third respondent shall produce the petitioner before the second respondent herein immediately on receipt of a copy of this order on 04.09.2021.
ii) The Dean, attached to the Government Rajaji Hospital, Madurai, shall admit the petitioner in the hospital immediately and the Dean is directed to make all arrangements to conduct the process.
iii) After the termination of pregnancy is over, sample shall be taken from both the petitioner as well as the foetus and placenta for DNA Test.
iv) It must be handed over to the Investigating Officer herein.
v) The Investigating Officer is directed to send the sample to the Forensic Lab, Chennai, for conducting DNA Test and for preservation for future use in investigation and trial process.
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vi) After the termination of pregnancy is over, the Dean, Government Rajaji Hospital, Madurai shall permit the petitioner to stay in the hospital till she is completely recovered.
vii) Compliance Report must be submitted to this Court.
10. List the matter for reporting compliance on 09.09.2021.
03.09.2021
Internet : Yes / No
Index : Yes / No
Speaking order / Non Speaking order
dss
Issue order copy on : 03.09.2021
To
1. The Secretary,
Government of Tamilnadu,
Department of Health and Family Welfare, Fort St.George, Chennai – 600 009.
2.The Dean, Government Rajaji Hospital, Madurai.
3.The Inspector of Police, All Women Police Station, Sivagangai, Sivagangai District.
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