A.Malar vs The Principal Secretary

[Cites 7, Cited by 0]

Madras High Court

A.Malar vs The Principal Secretary

The present writ petition has been moved by a hapless mother seeking a direction to the fourth respondent - Dean, Government Rajaji Hospital, Madurai, to terminate the pregnancy of her minor daughter within the time frame that may be stipulated by this Court.

2. Brief facts leading to the filing of the present writ petition are as follows:

2.1. The minor daughter of the petitioner was born on 03.06.2007 and now, aged about 11 years, is studying 7th Standard.

She was sexually abused by one of her close relatives and she is now in the gestation period of 24 weeks of pregnancy.

2.2. A criminal complaint also came to be lodged against the accused and a case in Crime No.4 of 2018, under Sections 5(m) and http://www.judis.nic.in 3 5(n) and 6 of the Protection of Child from Sexual Offences Act, 2012 was registered and now, the accused, after arrest, is in judicial custody.

2.3. Thus, the petitioner has come before this Court seeking permission to terminate the pregnancy of her minor daughter, aged 11 years within the time frame that may be fixed by this Court. Besides, a sum of Rs.4,00,000/- (Rupees Four Lakhs only) has also been sought for towards interim compensation.

3. On 20.11.2018, when the matter was taken up for hearing, we, considering the urgency, passed the following order:

“An unfortunate mother has knocked the doors of this Court seeking justice to her minor daughter, aged 11 years, who has been sexually abused and made to carry five months old fetus in her womb, by filing the present writ petition for a writ of Mandamus directing the fourth respondent - Dean, Government Rajaji Hospital, Madurai, to terminate the pregnancy of her minor daughter within the time frame that may be stipulated by this Court.

2. We, with painful hearts, heard the submissions of either side and enquired the victim girl in the presence of the petitioner. It is, no doubt, for the Medical Experts to find the possibility for the termination of five months' old fetus in the womb of the minor daughter of the petitioner.

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3. Considering the utmost urgency involved in this matter, we deem it fit to pass the following interim order:

The fourth respondent - Dean, Government Rajaji Hospital, Madurai, is requested to examine the minor daughter of the petitioner, aged 11 years by constituting a Committee consisting of Medical Experts and find out the possibilities for termination of her pregnancy and if not, give a detailed report as to the physical condition of the minor victim girl to go for delivery of the child in the womb and also the medical advice with regard to which one is lesser harmful to her.

4. List the matter on 22.11.2018 at 02.15 p.m.”

4. Pursuant to the same, the Dean, Government Rajaji Hospital, Madurai, vide Ref.No.Dean's Special/G6/18, dated 22/11/18, forwarded the Medical Report of Victim girl of the petitioner, which reads as under:

“The Victim girl, 11 yrs was examined and found to be 6 months, 24 weeks of gestation clinically and confirmed by ultrasound. The termination of her pregnancy has the complications of bleeding, birth of a viable live baby and also failure of vaginal expulsion which may end up in hysterotomy (surgical removal of baby). Continuation of pregnancy has the complications of Anaemia, Pregnancy induced Hypertension, Preterm labour and Caesarean section during delivery of the baby.” http://www.judis.nic.in 5

5. However, on perusal of the report, dated 22.11.2018 of the Professors of OG Department, Government Rajaji Hospital, Madurai, we felt that the said report mentioned about the risks involved in both, viz., termination of pregnancy and also delivery of the baby. Hence, we directed the learned Additional Advocate General appearing for the State to get a further report as to which one would be feasible for the victim, aged 11 years.

6. Thus, the learned Additional Advocate General appearing for the State submitted a report of the Committee/Medical Board, vide Ref.No.480/OG/18, dated 23.11.2018 of the Professor and Head of Department, Department of O & G, Government Rajaji Hospital, Madurai, which states the following:

“On Examination of Victim girl, she was pregnant with single intra uterine pregnancy of 24 wks of gestational age.

Adolescent pregnancy are prone for high risk of complications like Pregnancy induced Hypertension, Anaemia, CPD, Preterm birth, PROM, IUGR, Psychological problems in pregnancy. Hence continuation of pregnancy carries risk of increased morbidity for mother and baby.

Termination of pregnancy in second trimester also carries risk.

http://www.judis.nic.in 6 Risk of continuation of pregnancy carries more risk than second trimester termination of pregnancy.

If the adolescent girl and her family opts for termination of pregnancy, termination can be done on direction of the court at the earliest.” (emphasised by us)

7. In the light of Section 3 of the Medical Termination of Pregnancy Act, 1971, which is extracted hereunder:

“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 shal 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 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 -

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(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.

Explanation I.- Where any pregnancy is alleged by the pregnant woman to have 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.

Explanation II.- 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 the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the http://www.judis.nic.in consent of the pregnant woman.” 8 we had carefully considered the submissions of the learned Counsel for the parties and scrutinised the materials available on record, including the Medical Reports submitted by the Committee/Medical Board forwarded by the Dean, Government Rajaji Hospital, Madurai. We had also discussed with the Medical Officer from the Government Rajaji Hospital, Madurai, with regard to the Medical Reports, dated 22.11.2018 and 23.11.2018.

8. While considering termination of pregnancy of 24 weeks, the Honourable Supreme Court, in Tapasya Umesh Pisal, Vs Union of India reported in (2018) 12 Supreme Court Cases 57, categorically laid down thus:

“8. In these circumstances, it is difficult for us to refuse the permission to the petitioner to undergo medical termination of pregnancy. It is certain that the foetus if allowed to born, would have a limited life span with serious handicaps which cannot be avoided. It appears that the baby will certainly not grow into an adult.

9. In view of the above, we consider it appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. Mr.Ranjit Kumar, learned Solicitor General appearing for the respondents, has not opposed the petitioner's http://www.judis.nic.in prayer on any ground, legal or medical. We order 9 accordingly.

10. The termination of pregnancy of the petitioner will be performed by the Doctors of the hospital where she has undergone medical check-up. Further, termination of her pregnancy would be supervised by the abovestated Committee/Medical Board who shall maintain complete record of the procedure which is to be performed on the petitioner for termination of her pregnancy.

11. With the aforesaid directions, the instant writ petition is allowed in terms of prayer (a) seeking direction to the respondents to allow the petitioner to undergo medical termination of her pregnancy.”

9. Again, on 23.11.2018, considering the overall facts and circumstances of the case, more particularly, in tune with the medical opinion of the experts, we granted permission for medical termination of the pregnancy of the minor child and the relevant portion of the order dated 23.11.2018, is reproduced hereunder:

“12. Admittedly, the pregnancy of the minor victim child is now approximately 24 weeks. Though the medical report dated 23.11.2018 says that the continuation of pregnancy carries risk of increased morbidity for mother and baby, the medical report further says that the continuation of pregnancy carries more risk than second trimester termination of pregnancy. Thus, going by the report of the Committee/Medical Board, dated 23.11.2018 and http://www.judis.nic.in 10 keeping in mind the judgment of the Honourable Supreme Court in Tapasya case cited supra, we feel that continuance of pregnancy would involve more risk to the life of the minor victim/pregnant child.

13. Today, the petitioner – mother of the minor victim child, has also filed an affidavit, dated 23.11.2018, affording her consent for medical termination of pregnancy of her minor child, which we place on record.

14. Considering the facts and circumstances of the case, we find that we have no other go except to accept the report of the Committee/Medical Board, dated 23.11.2018 and permit the minor victim child to undergo medical termination of pregnancy, as in our considered view, the minor victim child cannot be permitted to carry a child in her womb as her physical as well as mental health would get deteriorated and that the termination of pregnancy has to be done emergently without any waste of time.

15. We are very much worried about the safety of the minor victim child, aged 11 years, who is now undergoing the untold miseries and thus, taking into account the medical report of the experts, suggesting to go for medical termination of pregnancy of the minor, we, having no other option, are constrained to pass the following emergent order:

(i) The Dean, Government Rajaji Hospital, Madurai, is directed to carry out the medical termination of the minor victim child/minor daughter of the petitioner herein, by a team of Medical Officers, at http://www.judis.nic.in the earliest, without any loss of time;

(ii) The Dean shall ensure that all medical facilities are given to the minor victim child during the procedure of medical termination of pregnancy and also during the post-termination period as well;

(iii) The physical health condition of the minor victim child shall be monitored by a team of Medical Officers during all the time of admission in the Government Rajaji Hospital, Madurai;

(iv) Necessary counselling shall be afforded by the Experts in Counselling to the minor victim child to come out of the mental agony, besides the physical draw back due to the medical termination; and

(v) The Committee/Medical Board is also directed to preserve the terminated fetus of the minor victim child for medical examination and DNA Test in the criminal case.

16. List the matter on 03.12.2018 for filing a report as to the physical condition of the minor victim child during post-termination period.”

10. Thereafter, on 03.12.218, when the matter is taken up for hearing, as per the order of this Court dated 23.11.2018, the fourth respondent – the Dean, Government Rajaji Hospital, Madurai, filed a Status Report dated 30.11.2018, in and by which, it is stated as under:

“I, Dr.D.Maruthupandian, MS (GS), S/o.Deivendran, Hindu aged 58 years, serving as the Dean, Government Rajaji Hospital, Madurai, do hereby solemnly affirm and http://www.judis.nic.in 12 sincerely state as follows:-

I humbly submit that, I am the 4th respondent herein and as such I am well acquainted with the facts of the case and I am filing this Status report for myself.

It is humbly submitted that, in response to the Honourable Madurai Bench of Madras High Court, order dated 23/11/2018, the Petitioner's daughter (minor victim girl) had spontaneous expulsion of dead fetus of 750 gm weight on 27.11.18 at 5.30 am. The Petitioner's daughter is under monitoring in labour ward. Presently, the Petitioner's daughter's vitals are stable.” [extracted as such]

11. We place on record the aforesaid Status Report, dated 30.11.2018, filed by the fourth respondent – the Dean, Government Rajaji Hospital, Madurai.

12. Coming to the question of compensation to be awarded to the minor victim child, we are of the opinion that the pain and sufferings and the mental agony undergone by the minor victim child cannot be weighed in terms of penny and it ought not to have been done. However, a victim of sexual offence should not be left in lurch and therefore, we deem it just and proper to award a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation as per the provisions of the Tamil Nadu Victim Compensation Scheme, 2013, to the minor victim child, which would meet the ends of justice. http://www.judis.nic.in 13

13. Thus, the first respondent – Principal Secretary to the Government, Government of Tamil Nadu, Home Department, Fort St. George, Chennai, is hereby directed to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only) towards compensation to the minor victim child, namely, the daughter of the petitioner herein and such compensation shall be deposited in any one of the Nationalised Banks in the name of the minor victim child within a period of four weeks from the date of receipt of a copy of this order. We further clarify that the compensation amount awarded by this Court under the Tamil Nadu Victim Compensation Scheme, 2013, will not be a bar for the Criminal Court to award appropriate compensation to the minor victim child under the provisions of the Code of Criminal Procedure as well as under the Protection of Children from Sexual Offences Act, 2012, after completion of criminal trial against the offender.

14. With the above directions, this writ petition stands disposed of. No costs. Consequently, the connected writ miscellaneous petition is closed.

                      Index       :Yes                         (R.P.S.,J.)     (R.T.,J.)
                      Internet    :Yes                                18.12.2018
                      rsb



http://www.judis.nic.in
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                      To
                      1.The Principal Secretary,
                        Government of Tamil Nadu,
                        Home Department,
                        Fort St. George,
                        Chennai.

                      2.The District Collector,
                        Dindigul District,
                        Dindigul.

                      3.The Chairperson,

Child Welfare Committee – Dindigul, Department of Social Defence, Government of Tamil Nadu, Dindigul.

4.The Dean, Government Rajaji Hospital, Madurai.

5.The Inspector of Police, All Women Police Station, Kodaikanal, Dindigul District.

http://www.judis.nic.in 15 R.SUBBIAH,J.

AND R.THARANI,J.

rsb W.P(MD)No.22802 of 2018 and W.M.P(MD)No.20675 of 2018 18.12.2018 http://www.judis.nic.in

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