Karnataka High Court
Ms. X1 vs State Of Karnataka on 1 December, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:43426
WP No. 26675 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 26675 OF 2023 (GM-RES)
BETWEEN:
1. MS. X1
REPRESENTED BY HER MOTHER,
SMT. SABAMMA,
AGED ABOUT 51 YEARS OLD,
W/O. MALLESHAPPA,
R/AT NO. 33,
KSCB QUARTERS,
KANAKA NAGARA,
CHIKKABOMMASANDRA,
SINGANAYAKANAHALLI,
AMANIKERE,
NEAR ANJINEYA TEMPLE,
BENGALURU NORTH - 560 064.
Digitally signed ...PETITIONER
by PADMAVATHI
BK (BY SRI. DEEPAK BHASKAR., ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. STATE OF KARNATAKA
THROUGH YELAHANKA POLICE STATION,
BENGALURU.
2. GENERAL HOSPITAL, YELAHANKA
RAILWAY STATION ROAD,
GANDHI NAGAR,
YELAHANKA OLD TOWN,
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NC: 2023:KHC:43426
WP No. 26675 of 2023
BENGALURU NORTH - 560 064.
3. VANI VILAS HOSPITAL
VICTORIA HOSPITAL COMPOUND,
SULTAN ROAD,
BENGALURU,
KARNATAKA - 560 002.
4. DISTRICT CHILD PROTECTION UNIT
WELFARE DEPARTMENT COMPLEX,
BEHIND KIDWAI HOSPITAL,
DR. M. H. MARIGOWDA ROAD,
HOSUR ROAD,
BENGALURU - 560 029.
5. CHILD WELFARE COMMITTEE
BEHIND KIDWAI HOSPITAL,
DR. M. H. MARIGOWDA ROAD,
HOSUR ROAD,
BENGALURU - 560 029.
6. DISTRICT LEGAL SERVICES AUTHORITY
DISTRICT AND SESSIONS COURT COMPLEX,
BENGALURU.
...RESPONDENTS
(BY MS.NAVYA SHEKHAR, AGA FOR RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
A) DIRECTING THE R3 TO IMMEDIATELY ADMIT THE
PETITIONER AT R3 HOSPITAL AND TAKE NECESSARY STEPS TO
MEDICALLY TERMINATE HER PREGNANCY FORTHWITH AND
ETC.,
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:43426
WP No. 26675 of 2023
ORDER
The petitioner represented by her mother is before this Court seeking the following prayer:
A. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the Respondents No.3 to immediately admit the Petitioner at Respondent No.3 Hospital and take necessary steps to medically terminate her pregnancy forthwith;
B. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the Respondent No.3 to preserve the terminated fetus / product of conception for the purpose of DNA testing and analysis;
C. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing Respondent No.1 to take all steps necessary for conducting relevant forensic tests at the State Forensic Laboratory, Madivala, Bangalore, of the terminated foetus/product of conception for the purpose of investigation and trial of FIR bearing Cr.No.0538/2023 registered by Respondent No.1. (Annexure - E);
D. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing Respondent No.6 to disburse a sum of Rs.3,00,000/- (Rupees Three Lacs Only) to the petitioner as compensation under the Karnataka Victim Compensation Scheme, 2011;
E. Grant such other reliefs as this Hon'ble Court deems fit in the interests of justice and equity." -4-
NC: 2023:KHC:43426 WP No. 26675 of 2023
2. Heard Sri Deepak Bhaskar, learned counsel for petitioner and Ms. Navya Shekhar, learned Additional Government Advocate for the respondents - State.
3. The petitioner - a minor girl who is aged 16 years and 8 months was allegedly subjected to penetrative sexual assault and rape by the accused in Crime No.538/2023, upon which the petitioner becomes a pregnant. The documents appended to the petition would indicate that the petitioner was examined by the General Hospital, Yelahanka on 23.11.2023 on account of profused vomiting. The examination resulted in an indication that the petitioner is 24 weeks pregnant. A report was sought from the hands of the Child Welfare Committee which depicts that the child needs care and protection and is presently placed in Government's Girls Home for such care and protection. The petitioner then requests for facilitation of termination of pregnancy.
4. In view of the impending urgency, this Court by an order dated 29.11.2023, referred the victim for examination to Vani Vilas Hospital, Bangalore to constitute Medical Board of -5- NC: 2023:KHC:43426 WP No. 26675 of 2023 Gynecologist, Pediatrician and all necessary experts, who shall examine the petitioner on 30.11.2023 and give and render an opinion as to the fitness of the victim to undergo medical termination of pregnancy as also the condition of the foetus.
5. The report of the Bangalore Medical College and Research Institute is received today and it reads as follows:
"With reference to W.P. No:26675/2023 dated: 29-11-2023 Medical Board Opinion for the Termination of Pregnancy of D/o Malleshappa Name : D/O Malleshappa, Age: 16 years, 8 months Date of admission : 29/11/2023 Address:
Slum Board, Yalahanka New town, Bengaluru Ph. No: 9900817614 Date and place of examination: 30/11/2023, Vani Vilas Hospital, BMCRI, Bengaluru. Case examined by - OBG 'A' UNIT (Dr. Suma K.S.) HISTORY LMP: Not known EDD: 15/03/2024 (according to scan) Primigravida with 24 weeks + 06 days period of gestation H/o 6 months of amenorrhea No fresh complaints No co-morbidities PHYSICAL EXAMINATION Patient is alert, conscious and cooperative.-6-
NC: 2023:KHC:43426 WP No. 26675 of 2023 Build and nutrition: Moderate Weight: 47 kgs No pallor, no pedal edema, no cyanosis Thyroid, breast, spine are normal Pulse: 90bpm BP: 110/70 mm Hg Secondary sexual characters well developed (Tanner stage 4) Respiratory rate: 16 cpm Cardiovascular system: S1, S2 heard, clinically no abnormality detected Respiratory system: clinically no abnormality detected OBSTETRIC EXAMINATION Primigravide with 24 weeks + 06 days period of gestation, no surgical illnesses in the past.
On examination:
Per abdomen: Uterus 24-26 weeks size, relaxed, FHS+ ULTRASOUND EXAMINATION Ultrasound examination of abdomen on 30/11/2023 Single live intrauterine gestation noted with the following parameters:
Presentation: Single live intrauterine gestation with good cardiac beats and body movements seen Fetal heart rate: 140 bpm Biparietal Diameter: 6.11 cm Heard circumference: 23.26 cm Abdominal circumference: 19.91 cm Femur length: 4.35cm Mean gestational age: 24 weeks 06 days + /-3 weeks Estimated fetal weight: 707 gms +/-15% Placenta is Fundal, Lower Margin well above the internal OS. Liquor : Adequate SINGLE LIVE INTRAUTERINE GESTATION OF 24 WKS 06 DAYS + 3WKS GROWTH BY SCAN Investigations:
Hb-10.7 g/dl -7- NC: 2023:KHC:43426 WP No. 26675 of 2023 Platelets: 2.40 lakh/mm3 WBC:8.09 Blood group: A positive HBsAg-Non reactive VDRL - Non reactive HIV - Non reactive FINAL OPINION Based on the above examinations and opinions, D/O Malleshappa, Aged 16 years 8 months with W.P. No.26675/2023 who was referred for opinion as to the fitness of the victim to undergo medical termination of pregnancy as also the condition of the fetus was examined by the board and opined that she shall undergo termination of pregnancy with necessary precautions."
In the light of the afore-quoted opinion of the Medical Board, the victim can undergo termination of pregnancy with necessary precautions and it would become necessary for a direction to be issued to the Hospital to undertake termination of pregnancy. Therefore, the following:
ORDER
1. The writ petition is disposed.
2. Mandamus issues to respondent No.3 - Hospital is directed to carryout the procedure for Medical Termination of Pregnancy in terms of the -8- NC: 2023:KHC:43426 WP No. 26675 of 2023 Medical Termination of Pregnancy Rules, 1971, forthwith at its hospital at the cost of the State.
3. The procedure is subject to further examination of the Doctor who has to conduct such a procedure and if in the opinion of the Doctor, such a procedure would cause harm or injury to the life of the petitioner, the Doctor shall be the final deciding authority as to whether to go ahead or not with such a procedure;
4. The petitioner shall not be liable to make payment of any amounts towards such procedure.
5. In the event of the Doctor being of the opinion that medical termination of pregnancy procedure has to be carried out and is in fact carried out, the foetus shall be preserved by respondent No.3 in such a manner as to facilitate DNA testing of the foetus. The respondent No.3-Hospital is directed to send the tissue sample of the foetus for DNA testing to the Central Forensic Testing Laboratory at Bangalore.
6. Respondent No.1 - Yelahanka Police Inspector shall make necessary arrangements as may be necessary to facilitate the transport of the petitioner and her immediate family -9- NC: 2023:KHC:43426 WP No. 26675 of 2023 members/attendants to respondent No.3-
Hospital for treatment and after such treatment for their transport back to their residence. In the event of any follow-up treatment being required and as advised by the treating doctor, shall arrange for such transport at such times as advised and/or as directed by the Doctor, the same being carried out at the cost of the State.
7. Official respondents shall file status report in two weeks.
8. A copy of this order shall be furnished to learned Additional Government Advocate.
9. Registry shall communicate this order to the Hospital - the Medical Superintendent of Vani Vilas Hospital forthwith, by way of electronic mail.
Sd/-
JUDGE NVJ List No.: 4 Sl No.: 2+