Madras High Court
V. Krishnan vs G. Rajan Alias Madipu Rajan And The ... on 2 December, 1993
ORDER Srinivasan, J.
INTRODUCTION
1. The great Tamil Saint said:- "Take not away from any living thing the life that is sweet unto all even if it be to save thine own."
(Thirukkural -33-7)
2. But the petitioner has prayed for issue of a direction to the Superintendent, Government Kasthuri Bhai Gandhi Hospital, Triplicane Madras, to terminate the pregnancy of his daughter Sasikala. Thus, he prays for a direction to put an end to a life in the womb of Sasikala on the ground that she is still in her teens and teenage pregnancy will lead to many complications physically, physiologically, mentally and socially. The irony of the matter is Smt. Kasturba Gandhi, after whom the hospital is named, was married at the age of 13 and had her first child at the age of 15 and the second child at the age of 17:
FACTS
3. The petitioner filed H.C.P.No. 1450 of 1993 for issue of a writ of Habeas Corpus direction the first respondent to produce Sasikala, the daughter of the petitioner, aged about 16 and set her at liberty. The Second respondent in the petition is the Inspector Police (Law & Order), K-3 Aminjikarai Police Station. It was alleged in the petition that on 9.5.1993, the petitioner's daughter left the house stating that she was going to the temple, but did not return home. On enquiries, the petitioner came to know that the first respondent had kidnapped her for the purpose of marrying her and gave a complaint in Aminjikarai Police Station under Section 366-A of the Indian Penal Code. The first respondent and the petitioner's daughter who will be referred to hereafter by her name Sasikala, were taken in custody by the police on 13.5.1993 and produced before the V Metropolitan Magistrate, Egmore. The first respondent was remanded to judicial custody and Sasikala was sent to Government Orphanage Home, Madras-10. The first respondent was later released on bail on a petition filed by him. The Magistrate set Sasikala free on the ground that she was aged between 20 and 25 years as per the report of the Radiological Officer. A complaint was given by the petitioner's sister to All Women Police Station, Thousand Lights that Sasikala was taken away by the first respondent. The Sub Inspector refused to take any action. When the petitioner went to the first respondent's house, he was prevented from seeing his daughter. Hence, he was obliged to move the Court for issue of a habeas corpus.
4. It was also alleged in the affidavit that about 500 persons belonging to the place of the first respondent threatened the petitioner at the point of knife and made him to append his signature to a letter consenting to the marriage of the first respondent and Sasikala. It was further stated that Sasikala lost her mother when she was three years old and she was brought up by the petitioner with great care and affection and her life will be ruined if she marries the first respondent, an uneducated, jobless and notorious rowdy element. Admittedly, however, the petitioner had not given any complaint to the police about the alleged extortion of consent letter at the point of knife by 500 persons. According to learned counsel for the petitioner, that took place on 13.5.1993 when the petitioner gave the complaint under Section 366-A. I.P.C. to the police. But the consent letter signed by the petitioner and produced by the first respondent's counsel bears the date 9.5.1993, the day on which Sasikala left the house.
5. When the matter came before a Division Bench on 20.9.1993, the Court heard both sides and passed an order that Sasikala is a minor, her date of birth being 20.11.1977 and as she is not willing to go with her father, the petitioner, she should be kept in Avvai Home at Adyar till she attains majority. The petitioner undertook to bear the expenses during her stay at Awai Home. The Bench made it clear that during her stay at Awai Home, the petitioner may be permitted to see his daughter during regular visiting hours; but neither the first respondent nor his parents shall be permitted to see the girl.
6. Accordingly, the girl Sasikala is staying in Awai Home. In the present petition it is stated that the petitioner met his daughter at Awai Home on 1.11.1993, when he went to pay the charges for November, 1993. He was shocked to learn that his daughter has become pregnant. After referring to the provision in Section 3 of the Medical Termination of Pregnancy Act, the petitioner has stated as follows:-
"5. I am advised to submit that my daughter is only 16 years and continuance of pregnancy may endanger her life and health because of anticipated complicated of Teenage Pregnancy. She was illegally made pregnant and her delivery of child may lead to many complications physically, physiology mentally and socially. According to medical expert a woman can safely deliver a child only after twenty one years of age.
6. I submit that the first respondent is an unemployed rowdy element and a vagabond and if my daughter delivered a child for him it may lead to various problems. She was not married. She could not be also married. She and her expected child has to bear the agony stigma throughout their lives.
7. My daughter life would be ruined if the pregnancy is not terminated.
7. When this petition came up before us on 8.11.1993, we directed the Public Prosecutor to utilise the services of a Medical Practitioner to ascertain whether the girl is pregnant and report to this Court. We adjourned the matter by a Week. Pursuant thereto, the girl was taken to Anbu Clinic, Thiruvanmiyur, situated near Awai Home. Dr. K.R. Radha, M.B.B.S., D.D., has examined the girl and given her findings as follows:-
Date: 17.11.93 Mrs. Sasikala 16 Yrs. Primi LMP 28th July '93 B.P.120/80 sn EDD 5th April '94 P/V:Ut.14-16wks size.
Cx - soft. Fornix free Advised Hg% Blood Grouping & Rh typing
-Alb Urine-Sug.
-Deposit."
The certificate does not disclose any abnormality. One can say that the girl will deliver a child in the normal course.
8. Thereafter, the girl was also produced in Court and the matter was heard. We thought fit to put some questions to the girl in our Chamber. We spoke to the girl and found that she was not willing to have the pregnancy terminated. We recorded the same and posted the matter in Court for arguments. Counsel on both sides argued at length. We thought it better to record the evidence of the girl in so far as it relates to the prayer in this petition and also give an opportunity to the petitioner's counsel to cross-examine her. Her deposition was recorded in camera. We have found that the girl is quite capable of understanding things. She had no hesitation whatever in answering all questions put to her by counsel for the petitioner as well as by Public Prosecutor. The Court put some questions. Her answers are quite clear and specific. She knows her mind and she appears to be having definite ideas about her future. Her answers disclose enormous self-confidence on her part. In particular, the petitioner's counsel asked her as to what she would do if the first respondent deserts her, after some time. Her answer is "I am not worried". Counsel put another question as to what she would do if the first respondent disowns the child. Pat came the answer that she will bring up the child herself. At the end of the examination, the Court asked her as to what she meant when she said that she is not worried if Rajan deserts her. She clarified by saying that she will live alone even if he deserts her. According to the girl, her mother left the house with her younger brother when she was aged about 5. According to her, the first respondent married her and after the marriage they had sexual relationship resulting in the pregnancy. A perusal of her deposition snows that she is fully aware of the consequences of the pregnancy and the child-birth. She is quite categoric that the pregnancy should not be disturbed. It is quite obvious that she has already started loving the child that is growing in her womb. We are remained of the saying of Thiruvalluvar that "The touch of children is the delight of the body; the delight of the ear is the hearing of their speech."
(Tirukkural - 7-5).
9. Learned counsel for the petitioner vehemently contends that Sasikala has no say in this matter as she is a minor, aged about 16. In so far as this proceeding in concerned, the Bench which passed the order earlier proceeded on the footing that her date of birth is 20.11.1977. In her deposition before us, when she replied to a question put by the petitioner's counsel, she has given the same date of birth. For the purpose of this petition, we are proceeding on the footing that she is aged about 16 years. We are aware that the Metropolitan Magistrate has relied upon the report of the Radiologist that the girl is aged between 20 and 25. The question as to the correct age of the girl may arise before the Metropolitan Magistrate in the proceeding pending before him and he has to decide the same on the material placed before him. In so far as this habeas corpus petition is concerned, the Court has accepted the prima facie evidence afforded by the birth certificate produced by the petitioner and treated the girl as a minor. This Court has not given any conclusive finding on the age of the girl which can be decided only by the Metropolitan Magistrate on the basis of the entire evidence placed before him The petitioner is disputing the correctness and validity of the age certificate issued by the Radiologist. That is a matter to be considered by the Metropolitan Magistrate.
10. Learned counsel for the petitioner contends that Sasikala being a minor, is not entitled express her opinion as to whether pregnant (SIC) should be continued or terminated. According to him, the petitioner being the father and guardian is the only person who can decide that the welfare of his minor daughter requires the termination of the pregnancy. Reliance is placed by learned counsel on the provisions of Section 3 of the Medical Termination of Pregnancy Act (Act 34 of 1972 (hereinafter referred to an 'the Act') and particular attention is drawn to Sub-section (4)(a) therefore according to which, "no pregnancy of a woman who has not attained the age of eighteen years who, having attained the age of eighteen years a lunatic, shall be terminated except with the (SIC) sent in writing of her guardian". It is contended learned counsel that the pregnancy in this case caused by rape as defined in Section 375 of the India Penal Code and the Court shall presume that would cause grave injury to the mental health Sasikala. It is submitted by him that the first respondent is a bad character and he is likely desert Sasikala and her child and, therefore, (SIC) pregnancy should not be allowed to continue. (SIC) argued that the mother of Sasikala not being (SIC) able, the only person interested in her welfare the petitioner. In fact learned counsel has rejected to the recording of the deposition Sasikala. We over-ruled the objection (SIC) proceeded as stated earlier. Learned counsel (SIC) places reliance on the judgment of a Division Bench of this Court in Komalavalli v. C.R. Nair and Ors. (1983 L.W.(Crl.)190) and submits that a direction was issued in that case by the Bench to terminate the pregnancy of the petitioner therein as per the provisions of the Act.
11. Per contra, the learned Additional Public Prosecutor contends that the said Act is intended only to protect Medical Practitioners from being prosecuted under Sections 312 to 318 of the Indian Penal Code. Under Section 312, I.P.C., the termination of pregnancy of a woman is a punishable offence unless it is caused in good faith for the purpose of saving the life of the woman. The Act only provided additional grounds for terminating pregnancies. The grounds set out in the affidavit of the petitioner do not fall within the ambit of Section 3 of the Act. The prayer in the petition cannot be granted on the averments made in the affidavit. The pregnant girl is capable of understanding the world as well as the consequences of the pregnancy. Her opinion is of great importance and the Court should take that into account before considering the prayer of the petitioner. If termination of pregnancy is ordered against the will of the girl, it will harm her mental health and may also affect her physical health. It is her fundamental right to have child having become pregnant. She cannot be deprived of that right just because she is only 16 years old. The Constitution of India does not make a distinction between a major and a minor in the matter of fundamental rights. The learned Additional Public Prosecutor has referred to the law that is declared by Courts in America and the English Law. He has also referred to the judgments of the Supreme Court. It is submitted by him that the Act contains a special definition of the term 'guardian' and the petitioner may not fall within that definition, as the girl is now not under the care of the petitioner. The learned Additional Public Prosecutor invited us to dismiss the petition as not sustainable.
MILLION DOLLAR QUESTION.
12. This question is not reported to have arisen before any Court in India. It is of great importance and relevance in the present day society as the number of teenage pregnancies is said to be on the increase. The question is whether the guardian of a minor girl is entitled to an order from the Court directing the termination of the pregnancy of his ward when the pregnant girl is not agreeable for such termination.
MEDICAL OPINION ON TEENAGE PREGNANCIES AND ABORTION
13. According to learned counsel for the petitioner, Medical Experts are advising against teenage pregnancies in view of the complications which may be caused thereby. He places reliance on the following passages found in "Current Reviews in Obstetrics & Gynaecology -- J.K. Russell -- Early Teenage Pregnancy -- Churchill Livingstone :
"In western advanced societies few mothers now die in childbirth and because of the sparsity of deaths it is difficult to assess the specific risk for selected groups of mothers. In England and Wales since 1952 confidential enquiries have been made on all maternal deaths and the results have been published at 3-early intervals in a series of report (Report on Confidential Enquiries) into Maternal Deaths in England and Wales, 1952-1975). In these reports there is some acknowledgment of the risk to the lives of very young mothers though the number of maternal deaths in the youngest age group is understandably small. But it is accepted by the Regional Assessors for Maternal Deaths in England and Wales that the available evidence points to a higher than average risk of mortality in mothers aged 15 and younger." (Page 24).
... ... ...
"Indeed the optimal age for reproduction would certainly include girls aged 17-19 and the risk of morbidity or mortality in this group is very slight indeed." (Page 25) ... ... ...
"In summary the evidence points to an increased risk of mortality especially among less educated, poorly motivated youngsters and those aged 16 and under." (Page 26).
... ... ...
"Again people tend to associate teenage pregnancy with poor standards of childbearing high infant death rates and subsequent uncontrolled high fertility. In summary most advanced societies regard teenage pregnancy as being socially as well as medically unacceptable." (Page 71).
However, in the Introduction at page 4, the author says:-
"Finally I have come to learn over the years that it is not possible to talk or write of teenage pregnancy in terms of that are applicable throughout the world. The social, educational, medical and nutritional consequence of early teenage pregnancy vary considerably and depend upon the community in which the girl lives."
At page 19 it is said:-
"In summary, I have found that operations of pregnancy termination in girls aged 13 to 16 years compared with those in the age group 17 to 19 carry greater risks of immediate medical complications attributable to the immature state of the cervix in the younger group."
14. Teenage pregnancies are generally discouraged in view of the fact that in many a girl the cervix could not have grown fully and properly and deliveries may have to be caused by caesarean operations. But, even to-day, normal deliveries are recorded in the case of several teenage girls. As per the Medical History, the youngest mother in the world delivered a child in Lema, Peru, in May 1939 and her age at that time was 5 years 8 months. But, once a pregnancy has come into existence, the question is whether the same should be terminated because the pregnant girl is in her teens. N. Jeffcoate in "Principles of Gynaecology", 5th Edition, says that "Termination of pregnancy, therapeutic or legal, is always potentially dangerous". (Page 630). The learned author has listed out the dangers and complications which follow the termination of pregnancies on women who are generally fit physically, such as mortality and morbidity. At page 623 in the same book it is said:-
"The World Medical Association laid down some principles in the Declaration of Geneva and stated that abortion should only be performed as a therapeutic measure and that doctors should be advised always to act on the principle "I will maintain the utmost respect for human life from the time of conception."
15. In a Book entitled "Abortion --Questions & Answers" by Dr. & Mrs. J.C. Willke, 1985 Edition, the questions and answers are as follows :- (vide pages 108 to 111):
What About Teenage Abortions? Are They Different? After years of legalized abortion experience, a pro-abortion professor of OB/GYN at the University of Newcastle-on-Tyne reported on his follow-up, ranging from two to twelve years, of 50 teenage mothers who had been aborted by him. He noted that "the cervix of the young teenager, pregnant for the first time, is invariably small and tightly closed and especially liable to damage on dilatation". He reported on the "rather dismal" results of their 53 subsequent pregnancies:
Six had another induced abortion. Nineteen had spontaneous miscarriages. One delivered a stillborn baby at 6 months. Six babies died between birth and 2 years. Twenty-one babies survived.
J. Russel, "Sexual Activity and Its consequences in the Teenager," Clinics in OB, GYN, Vol.1, No.3, Dec. 1974, pp.683-698.
"Physical and emotional damage from abortion is greater in a young girl. Adolescent abortion candidates differ from their sexually mature counterparts, and these differences contribute to high morbidity." They have immature cervixes and "run the risk of a difficult, potentially traumatic dilatation." The use of lamanaria" in no way mitigates our present concern over the problems of abortion."
C. Cowell, Problems of Adolescent Abortion, Oriho Panel 14, Toronto General Hospital.
"The younger the patient, the greater the gestation (age of the unborn), the higher the complicate rate....Some of the most catastrophic complication occur in teenagers."
"Eighty-seven per cent (87%) of 436 obstetrician and gynecologists has to hospitalize at least one patient this year due to complications of legal abortions."
M. Bulfin, M.D. OB-GYN Observer, Oct.-Nov. 1975.
But Pregnancy For Teenagers Has Higher Risks Too! This is incorrect. Earlier opinion had taught this. In recent years, however, it has been shown that teenage mothers have no more risks during pregnancy and labour, and their babies fare just as well as their more mature sister babies, if they have had good prenatal care.
"We have found that teenage mothers, given proper care, have the least complications in childbirth. The younger the mother, the better the birth. (If there are more problems,) society makes it so, not biology."
B. Sutton-Smith, Jour. of Youth and Adolescence, as reported in the New York Times, April 24, 1979.
Pregnancy in a very young teenager (12 to 16 years) does not appear to be inherently high risk.
J. Dwyer, Roosevelt Hospital, New York Family Practice News, May 1, 1978.
Dr. Jerome Johnson of John Hopkins University, and Dr. Felix Heald, Professor of Pediatrics, University of Maryland, agree that the fact that teenage mothers often have low birth weight babies is not due to a pregnant teen-ager's biologic destiny." They pointed to the fact that the cause for this almost invariably is due to the lack of adequate parental care. With optimal care, the outcome of an adolescent pregnancy can be as successful as the outcome of a non-adolescent pregnancy."
Family Practice News, Dec. 15, 1975.
"The overall incidence of pregnancy complications among adolescents 16 years and younger is similar to that period for older women.' E. Hopkins, "Pregnancy Complications Not Higher in Teens, OB GYN News, Vol.15, No. 10, May 1980.
"Obstetric and neonatal risks for teenagers over 15 are no greater than for women in their twenties provided they receive adequate care."
There is evidence that in 15 to 17 years old women, pregnancy may even be healthier than in older ages.
E. McAnarney, Pregnancy May be Safer." OB-GYN News, Jan. 1978.
Pediatrics, Vol.6 No. 2, Feb. 1978, pp. 199-205.
The question relating to abortion to save mother's life and the answer to the same are as follows:-
"what about Abortion to Save the Mother's Life? : These are almost nonexistent in today's sophisticated medical climate. Such an abortion would be a true "therapeutic" abortion.
If the mother's actual life were threatened, a conscientious doctor would try to save both. In the rare, rare case where such a decision is really needed, the problem would be that of balancing one human life against another (note that all other reasons given for abortion are reasons less than human life itself).
In such a case, it would be proper to give to the local family and local medical and ethical authorities the right to make whatever decision they believed right. An ethical physician would certainly try to save both, but might have to make a choice. The proposed Human Life Amendments allow this exception." (pp.87 and 88).
16. It is also the opinion of the Medical Experts that termination of first pregnancy would result in sterility and the woman concerned may not have any pregnancy thereafter. Dr. T.R. Bedi, M.D., while answering readers questions regarding health problems in the "Woman's era", has opined that a medical termination of pregnancy may result in tubal infection, adhesions, etc., to cause secondary sterility. (Vide "Woman's Era", Vol.18, Issue No. 426, September (First) 1991, page 18). No doubt, teenage pregnancies are discouraged by medical world in view of the complications which may follow. But, abortions of such pregnancies are frowned at by medical experts as the consequences are more harmful. The prevalent opinion is that the complications which may arise due to teenage pregnancies can be avoided by proper ante-natal care, such as examining the pregnant girl at least once in a week in the third trimester.
THE RELIGIOUS VIEWPOINT.
A. CHRISTIANITY.
17. The Catholic Church has always denounced and opposed abortion. It has consistently defended the right of the unborn to live. The belief is that human life comes from God at the time of conception and that man is only the custodian of his life rather than the owner and abortion represents an act that denies the sanctity of life on the assumption that the woman is the owner of her life and that of her unborn child. In the book "Christian Marriage" by Jean de Fabregues, at pages 65 and 66 it is said:-
"Since it is in and by the procreation of children that the marriage union achieves its ends and its perfect fulfilment so it is here also that the laws laid down by the Church for Christian marriage find their full meaning.
Speaking to midwives Pius XII recalled that when a new life is being formed the whole of the order willed by the Creator is involved:
"In this case it is not a question of purely physical, or biological laws, laws obeyed of necessity by agents deprived of reason, or by blind forces, but or laws whose execution and effects are dependent on the free and willing co-operation of man. This order, established by the supreme intelligence, is directed to the end willed by its Creator. It includes both the exterior action of man and the interior assent of his free-will. Nature puts at man's disposal the entire chain of events that leads to the making of a new human life. It is man's part to set free this living force, that of nature to develop it and bring it to its appointed end. When man has done his share and set in motion the wonderful unfolding of life, his duty is one of religious respect for this process, a duty which forbids him to stop the work of nature or prevent its natural development. October 29th, 1951.) We can see now what follows from this respect, in and through nature, for the divine will and design which are expressed in it: consent to the marriage union in all its fullness and with all the consequences that follow the central act by which it is expressed, that is the act of love in all its creative dignity, and the joyful acceptance of the child which is to be born.
"Every human being, even the child in his mother's womb, holds his title to life directly from God, and not from his parents or from any human society or authority. Therefore no man, no indication medical, eugenic, social, economic or normal can show or give a valid legal right to dispose of an innocent human life directly and deliberately, that is to dispose of it with a view to its destruction, whether this is regarded as the end, or as the means to an end which may not in itself be in any way unlawful."
These last lines are very important, for, they cover the case where the sacrifice of the unborn child may preserve the mother's health.
"The Church has never at any time taught that the life of the child was to be preferred to that of the mother... For the one as for the other there can be only one consideration; all efforts should be made to save the lives of both." Pius XII also said: "Who could judge with any certainty which of these two lives is really the most precious?" (November 26th, 1951.) "If in order to save the life of the mother-to-be, quite apart from her pregnant condition, surgical intervention or other therapeutical application is urgently required, which may, as an accidental consequence, bring about the death of the foetus, such an act could not be called a direct attempt on the innocent life." (Pius XII-Address to the Associations of Large Families, November 26th, 1951)."
B. ISLAM.
18. In Syed Abdul A'la Maududi's "Birth Control", the following passage is found at pages 82 and 83:-
"The Holy Qur'an lays down a fundamental principle that effecting change in the scheme of God (Khalq-Allah) is a fiendish act. (Al-Qur-an, 4: 119.) Changing 'God's scheme and creation signifies misuse of a thing, its utilisation for a purpose other than the one for which it was intended, or to use it in a manner that its real purpose is defeated. In the light of this fundamental principle let us see as to what is "God's scheme" in the marital relationship of man and woman, i.e., what is the real natural purpose of this relationship and whether birth control changes it in the other direction. The Qur'an is not silent on this point. It has, on the one hand, forbidden sexual relations outside marriage, and on the other, laid bare the objective which matrimonial relationship between men and women are to serve. These objectives are (a) procreation and (b) fostering of love and affection and promoting culture and civilization. The Qur'an says:
"Your wives are a tilth for you, so go into your tilth as you like and do good beforehand for yourselves."
This verse expounds the first objectives of marriage. The other one is referred to in the following verse:
"And one of His signs is that he created mates for you from yourselves that you may find consolation in them and He ordained between you love and compassion."
In the first verse by describing woman as a tilth an important biological fact has been pointed out. Biologically man is tiller and woman a tilth and the foremost purpose of the inter-relationship between the two is the procreation of human race. This is an objective which is common to all human beings, animals, and the world of vegetation. The tiller of the soil cultivates the land not in vain, but for the produce. Take away this purpose, and the entire pursuit becomes meaningless. Through the parable of the tilth this important fact has been stressed by the Qur'an."
At pages 99 and 100, it is said:-
"Medical opinion is almost unanimous in asserting that abortion is highly dangerous for the general health of a woman and her nervous system. We will quote here Dr. Fredrick J. Taussig who has so succinctly summed up the expert medical opinion on the subject:
"When pregnancy is prematurely interrupted by what we term abortion, the human race suffers loss and damage in 3 ways:
First an infinite number of potential human beings are destroyed before their birth.
Secondly, abortion carries with it a considerable death rate among expectant mothers.
And finally, abortion leaves in its wake a high incidence of pathologic conditions some of which interfere with the further possibility of reproduction."
19. According to Dr. Yusuf al-Quaradawi "While Islam permits preventing pregnancy for valid reasons, it does not allow doing violence to the pregnancy once it occurs". (See page 201 of his Book "HALAL AND HARAM".) According to him, "Muslim jurists agree unanimously that after the foetus is completely formed and has been given a soul, aborting it is haram." (See page 201 of the same book.)
20. In "Do's and Do not's in Islam" by Abdur Rehman Shad, it is said (at page 89):-
"Unlike birth control abortion means the elimination of an already fertilized living human entity. A deliberate abortion with no justifiable grounds is regarded as a murderous crime. Only when the continuation of pregnancy constitutes a real threat to the life of the expectant mother, the abortion is permitted. So, instead of losing two lives, we should have the full and already grown-up life of the mother."
C. HINDUISM. 21. Abortion or killing of foetus has always been considered to be a sin and prohibited as such The person who causes abortion is described as "Bhrunaha Hkzw.kgk "and the killing of foetus is described as Bhrunahatih Hkzw.kgfr% References in Atharvana Vedha show that abortion was known in the Vedic age. Abortion was always considered to be a sin for which, however, expiation ceremonies were prescribed in Taittinyapanishad and also in Arunam. Manu in his Dharma Sastra said that a killer of a priest or destroyer of an embryo casts his guilt on the willing eater of his provisions.(Chapter VIII Verse 317) Kautilya's Arthasastra provides for the highest punishment for causing abortion by physical assault. It refers to Yajnavalkya and Manu as well as Vishnupurana. Lesser punishments are also provided for inducing miscarriage by drugs. ENGLISH LAW.
22. England's first criminal abortion statute, Lord Ellenborough's Act was passed in 1803. It made abortion of a quick foetus a capital crime; but it provided lesser penalties for the felony of abortion before quickening. A notable development was made in the case of Rex (SIC) Bourne (1938-3-All E.R.615), which held that was for the prosecution to prove beyond a reasonable doubt that the abortion was not performed in good faith for the purpose only a preserving the life of the mother. The surgeon was not to wait until the patient was in peril of immediate death, but it was his duty to perform the operation if, on reasonable grounds and with adequate knowledge, he was of opinion that the probable consequence of the continuance of the pregnancy would be to make the patient a physical and mental wrack. The British Parliament enacted the Abortion Act of 1967, which provided (a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman or of injury to her physical or mental health or of any existing children of her family, greater than if the pregnancy was terminated, or, (b) there is a substantial risk that if the child was born it would suffer from such physical or mental abnormalities as to be seriously handicapped. The Act also provided that in making this determination, account may be taken of the pregnant woman's actual or reasonably foreseable environment.
23. Rt. Hon'ble Lord Denning in his book "The Closing Chapter" says thus:-
"The unborn child .....it is not only the Christian doctrine but it is the doctrine of our law and our common law that the unborn child has a life of its own and a right of its own which is recognised by the law at least from the time of quickening, and the common law has always recognised that. Our great jurist, Sir William Blackstone, put it in this way:
Life is the immediate gift of God, a right inherent by nature in every individual, and it begins in contemplation, at law as soon as the infant is able to stir in its mother's womb.
Such a child was protected by the law almost to the same extent as a new-born baby. If anyone terminated the pregnancy and thus destroyed the life of the child he or she was guilty of a felony punishable by life imprisonment.
"In 1939 in Bourne's case that was modified to this extent by the common law. It was a defence if the termination was necessary to save the life of the mother. If the probable consequences of not terminating was to make the mother a physical or mental wreck then it was justifiable, but that was the only circumstance in which in the common law it was justifiable to terminate the pregnancy. So the common law laid great stress on the existence in the unborn child of a {ire of its own and a right of its own.
Responsibility on the medical profession.
Now for the 1967 Act. As I read it, it does not alter that fundamental principle, but what it does do is to define the circumstances in which pregnancy can be terminated...
Obtainable on demand (The Act) has been interpreted by some medical practitioners so loosely that abortion has become virtually obtainable on demand: Whenever a woman has an unwanted pregnancy there are doctors who will say that a risk is involved to her mental health....It is because there is not enough guidance given to the medical profession."
24. In Halsbury's Laws of England Fourth Edition, Vol.30, paragraph 44 at page 37 deals with Medical termination of pregnancy'. It reads thus:
"No offence is committed under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family greater than if the pregnancy were terminated, or that there is a substantial risk that if the child were born it would suffer tram such physical or mental abnormalities as to be seriously handicapped. Any treatment for the termination of pregnancy must generally be carried out in a hospital vested in the Secretary of State or in a place for the time being approved by him. No person is under any duty, whether by contract or by any statutory or other legal requirement, to participate in any authorised treatment for the termination of pregnancy to which he has a conscientious objection, but this provision does not affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman."
25. In Volume 11 of Halsbury's Laws of England' Fourth Edition, paragraph 1176 at page 628 reads as follows:-
"1176. Child destruction. Any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother is guilty of the offence of child destruction, if it is proved that the act was not done in good faith for the purpose only of preserving the life of the mother. The punishment for this offence is imprisonment for life or for any shorter term."
26. In Paton v. Trustees of BPAS and Anr. (1978 2 All.ER.987), the Queen's Bench Division held that the husband of the pregnant woman had no right, enforceable at law or in equity, to stop his wife having, or a registered medical practitioner performing a legal abortion. His prayer for injunction was denied.
27. In the book "Current Reviews in Obstetrics & Gynaecology - J.K. Russell - Early Teenage Pregnancy - Churchill Livingstone", in the Chapter "Therapeutic Abortion and the Law" at pages 42 and 43, the following passage is found: -
" When the girl is under the age of 16 the legal considerations are rather different and in some ways sufficiently unclear for there to be confusion in some cases in the minds of the girls, their parents and doctors. For example, it is widely assumed that a doctor is acting lawfully if he terminates a pregnancy in such a young girl with the parents approval. But this assumption may be wrong. There is a widespread belief that parents can decide about whether or not their young daughter's pregnancy should continue or be aborted if she is aged under 16. This too may be a wrong assumption (Joint Working Party on Pregnant School girls and School girl Mothers 1979.) A few years ago a young Sheffield girl was made a Ward of Court by Justice Heilbron in order to prevent her being sterilised in spite of the fact that the mother wished this to be done and a senior and experienced doctor had agreed that it ought to be done. It would seem from this case that the consent of a parent is not, in the eyes of the law, seen to be wholly acceptable. It is conceivable that this same ruling might hold in the case of a young girl who is pregnant and where the parents press either for the pregnancy to continue or to be terminated. There would appear to be no reason why the Law should not be capable of acting in the same way and making the child a Ward of Court thereby assuming responsibility about what should happen to the pregnancy. Next the girl may not wish to have the pregnancy terminated and if she says so openly and persistently it would be unwise for the doctor to proceed with the abortion in that his action might be judged to be against the spirit of the 1967 Abortion Act. It would be difficult for the doctor under these circumstances to argue that pregnancy termination was in the best interests of the girl's mental or physical health. The Law on this issue has not, so far, been tested."
28. In L. v. K. (1985) 1 All ER 961), the Family Division at Liverpool held that the rule of the criminal law that there is an irrebuttable presumption that a boy under the age of 14 is not able to have sexual intercourse is not a rule that applies in the civil law and accordingly, paternity cases relating to boys under 14 should be decided on a commonsense basis on the facts in the particular case and without any preconceived notions or presumptions. It was said that in such cases, if a mother gives evidence which is corroborated that sexual intercourse took place at the relevant time, it will be for the putative father himself to show, if it be the case, that ho was not fertile and that he was incapable of fathering the child. The case arose out of an affiliation proceeding taken out by a young woman who gave birth to a child. She alleged that L. a 14 year old boy, was the father of the child. The Magistrates who heard the evidence, held that L was the father. L appealed by way of a case stated in respect of the decision of the Magistrates and the High Court dismissed the appeal holding that on the evidence, no other conclusion was possible.
29. In Gillick v. West Norfolk and Wisbech Area Health Authority and Anr. (1985) 3 All ER 402), the House of Lords held that a Doctor can give advice to a girl below 16 in the matter of abortion without the knowledge and consent of her parents. Lord Fraser of Tullybelton said:-
"The statutory provisions to which I have referred do not differentiate so far as the capacity of a minor under 16 is concerned between contraceptive advice and treatment and other forms of medical advice and treatment. It would, therefore, appear that, if the inference which Mrs. Gillick's advisers seek to draw from the provisions is justified, a minor under the age of 16 has no capacity to authorise any kind of medical advice or treatment or examination of his own body. That seems to me so surprising that I cannot accept it in the absence of clear provisions to that effect. It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Of course, the consent of the parents should normally be asked, but they may not be immediately available. Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. Moreover, a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape: see R v. Howard (1965 3 All ER 684 at 685 = 1966 1 WLR 13 at 15), when Lord Parker CJ said:
.....in the case of a girl under sixteen, the prosecution, in order to prove rape, must prove either that she physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist......there are many girls under sixteen who know full well what it is all about and can properly consent.
Accordingly, I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age."
30. In C and Anr. v. S and Ors. (1987 1 All E.R.1230), the first defendant was an unmarried woman, who was between 18 and 21 weeks pregnant. She wanted to terminate her pregnancy. Two medical practitioners certified in accordance with the provisions of Abortion Act. The man who caused the pregnancy sought on his own behalf and as next friend of the child en ventre sa mere an injunction restraining the first defendant from undergoing the termination and restraining the physicians and authorities from performing the operation. He conceded that as father of the child he had no locus standi to make an application but contended that he had a sufficient personal interest to do so because the proposed termination of the pregnancy would be a crime concerning the life of his child. He further contended that the unborn child was a proper party to the proceedings since it was the subject of the threatened crime. The Judge refused to grant an injunction holding that a foetus had no right to be a party and the father had failed to establish that an offence under the Infant life (Preservation) Act 1929 would be committed if the termination was carried out. The plaintiff filed an appeal. The appeal was dismissed and it was held that though the foetus of a gestational age of 18 to 21 weeks could be said to demonstrate real and discernible signs of life, the medical evidence was that such a foetus would be incapable of breathing either naturally or with the aid of a ventilator. Hence, the termination of the pregnancy of that length would not constitute an offence under the Act. Heilbron J. said that a foetus had no right of action until it was subsequently born alive and while it was unborn, it cannot be a party to an action.
31. In Re B (a minor) (Wardship Sterilisation) (1987 2 All E.R.206), the House of Lords held that the Court had jurisdiction to authorise the operation of sterilisation, if it was in the welfare and best interests of the minor. It was held that the sterilisation operation of a child under 18 could be carried out only with the consent of Court exercising wardship jurisdiction. A similar ruling was given in F. v. West Berkshire Health Authority and Anr. (Mental Healthy Act Commission intervening) (1989 2 All ER 545). That was a case of a mentally handicapped person and the House of Lords held that sterilisation could be carried out only with the consent of the Court.
32. In view of the aforesaid two judgments of the House of Lords, a Practice Note was issued by the Official Solicitor, England, in May 1993. (See (1993) 3 All ER 222). The Practice Note related to the procedure to be followed in applications for the sanction of the High Court in cases where the sterilisation of a minor or mentally incompetent adult is sought. The note replaced the Practice Notes of 1989 and 1990. Paragraph 7 of the Note enjoins the Official Solicitor to act as either an independent and disinterested guardian representing the interests of the patient, or as an ex-officio defendant. He is required to meet and interview the patient in private in all cases where the latter is able to express any views (however limited) about the legal proceedings, the prospect of sterilisation, parenthood, other means of contraception or other relevant matters.
33. Thus, in the English Law, the opinion of the parents or natural guardian in the matter of abortion is irrelevant and if the minor girl is capable of understanding the implications, her opinion is quite relevant and important.
AMERICAN LAW.
34. In the United States, the law in all but a few States was the pre-existing English Common Law. The first American abortion legislation was a Connecticut statute of the year 1821. By 1900, all American States had laws restricting abortion. Post quickening abortions were dealt with more severely than abortions before quickening. Even an attempt to cause abortion was penalised. Between 1962 and 1973, legislations were introduced in some States liberalising abortion. In 1973, the judiciary brought about a sweeping change. The Supreme Court held in Roe v. Wade (35 L.Ed. 2d. p.147) that the right of privacy of a woman is protected by the Due Process Clause of the Fourteenth Amendment and that right enabled her to decide whether or not to terminate a pregnancy. The subject matter of challenge in that case was a Texas statute on abortion. The Court held by a majority of 7-2 that for the stage prior to approximately the end of the first trimester the State has no right to interfere with the right of the woman and her physicians. For the next stage, the State in promoting the interest in the health of the mother may regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life, may regulate or prescribe abortion except where it is necessary for the preservation of the life or health of the mother.
35 In Planned Parenthood of Central Missouri v. John C. Danforth, Attorney General of the State of Missouri (49 L.Ed.2d 788), the Supreme Court dealt with the rights of an unmarried woman under the age of 18 years. The Court held that the right of privacy gave an individual, married or single, the right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. It was further held that a provision in a State Abortion Statute setting forth conditions and limitations for abortions which requires the written consent of a parent or person in loco parentis of an unmarried woman under the age of 18 years who seeks an abortion during the first 12 weeks of pregnancy, unless the abortion is certified by a physician as necessary for the preservation of the mother's life, is unconstitutional and that the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent. The Court said that Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority; minors, as well as adults, are protected by the Constitution and possess constitutional rights.
36. In Maher v. Roe (53 L.Ed.2d 484), the Supreme Court held that a woman has at least an equal right to choose to carry her foetus to term as to choose to abort it.
37. In the book "Abortion, Medicine, and the Law" Edited by J. Doughlas Butler and David E. Walbert, in the Chapter "Minors' Rights to Confidential Abortions : The Evolving Legal Scene", it is said at page 137:-
"The majority opinions of the Supreme Court recognize:
1. "Mature" minors, who are capable of understanding the consequences of pregnancy and abortion, have a constitutional right to obtain confidential abortion services without parental involvement.
2. "Immature" minors have a constitutional right to abortion services if this would be in their best interests, and a right to abortion without parental involvement if such involvement would be detrimental to their best interests:
3. In order to protect "immature" minors from improvident decision making, states may require parental notification or consent prior to a minor's abortion, but such laws covering all minors must contain an administrative or judicial bypass mechanism whereby mature or immature "best interests" minors can be exempted from the mandated parental involvement.
4. When State laws that interfere with minors' rights to abortion are challenged, courts will examine them under a "significant state interests" test as opposed to the "compelling state interests" test required for laws that interfere with the abortion rights of adult women."
At page 139, reference is made to the decision in Denforth's case (49 L.Ed.2d 788) referred to above. The case in Bellotti v. Baird (428 U.S.132 (1976) is also referred to in the same page. In that case, the Supreme Court dealt with a Massachusetts statute requiring parental consent, providing that if one or both parents refused their consent, the minor could try to obtain consent from a State court judge. The Supreme Court abstained from deciding whether the provision was constitutional and sent it back for an interpretation by the Massachusetts Supreme Court. Subsequently, it was interpreted by the Massachusetts State Court that the statute required every minor to go initially to her parents. When the matter came again before the Supreme Court, by the majority of 8-1 decision, the Court ruled that the statute as interpreted by the State Court was unconstitutional. The ruling established that minor's constitutional right to choose abortion cannot be arbitrarily abrogated through mandatory parental involvement statutes. It was held (1) that mature minors have a right to make their own decisions about abortion without parental involvement; (2) that mature and immature minors must, as a matter of constitutional law, have the opportunity, through an alternative judicial or administrative procedure, to obtain an abortion without parental consent or consultation; and (3) that with respect to immature minors, the sole test must be their own best interests. At page 140 it is said that "a pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is "immature" and not able to make this decision independently, the desired abortion would be in her best interests". At page 142, the following passage is found:
"Therefore, as of 1983, the Supreme Court has recognized that minors have a fundamental constitutional right to make and effectuate the decision to choose abortion. Although the State may legislate to interject parents in order to protect immature minors and perhaps for other "family integrity" reasons, any such consent or notification statute must contain a mechanism whereby mature or best interests minors are exempted from parental involvement."
At page 147, Note 15 reads thus:-
"This decision provides constitutional protection not only to those minors whose parents would withhold consent, but also to those minors who want to exercise their "fundamental right to give birth," but whose parents try to force abortions. See, Matter of Mary P., 444 N.Y.S. 2d 545, 547 (N.Y. Fam. Ct. 1981)."
38. In Ohio v. Akron for Reproductive Health (GJ 1991 page 15), the Court reiterated the principles laid down in Bellotti v. Baird (443 U.S.622 (1979).
39. There is a proposal to amend the Constitution of the United States. If the amendment is carried out, abortion will not be as liberal as at present, as several restrictions will be imposed. It is represented that the Supreme Court of Unite States, is likely to reverse the view taken in Roe v. Wade (410 U.S.113 (1973 = 35 L.Ed.2d.147) and that a slight shift in the stand is perceptible in William L. Webster, Attorney General of the State of Missouri Et al v. Reproductive Health Services Et at (492 U.S.490 (1989)). It is not necessary for us to well further on that matter.
INDIAN LAW.
40. In India causing abortion has been an offence far ever. The Indian Penal Code uses the expression miscarriage and deals with it in Section 312 to 318. Section 312 reads:
"Whoever voluntarily causes a woman with child to miscarry, shall, if such marriage is not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Explanation A woman who causes herself to miscarry, is within the meaning of this section."
Thus, the only exception is that caused in good faith for the purpose of saving the life of the woman. Under the section, the consent of the pregnant woman is immaterial as she is also liable to be punished. In August 1971, Parliament passed the Act with a design to create more exceptions to the strict provisions of the Penal Code. It is said that the original suggestion for the enactment came from a family planning organisation and most of the work of drafting and pushing the legislation was done by the family planning officials. It is also said that unwanted pregnancies were on the increase and the Legislature wanted to widen the protection to medical practitioners and passed the Act. Whatever might have been the motive for the legislation, we are concerned only with the provisions thereof. According to the preamble, the Act is to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. Section 2(a) defines guardian as a person having the care of the person of a minor or lunatic. Section 2(c) defines a 'minor' as a person who under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. The expression 'registered medical practitioner' is defined in Section 2(d) of the Act. Section 3 is the pivotal section. It reads thus:-
(1) Notwithstanding anything contained in the Indian Penal Code, 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 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.
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 reasonably foreseable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, is a lunatic, 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 consent of the pregnant woman."
Section 4 prescribes the place where pregnancy may be terminated. Section 5 excludes the applicability of Section 4 and a part of Section 3 to the termination of pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. Section 6 empowers the Central Government to make rules. Section 7 empowers the State Government to make regulations. Section 8 bars the institution of a suit or other legal proceeding against any registered medical practitioner for any damage caused or likely to be caused by anything which is done in good faith or intended to be done under the Act.
41. Rules were framed originally in 1972. They were superseded by a fresh set of rules framed in 1975. The State Government has framed regulations in January 1976. It is not necessary for the purpose of this case to consider the rules and regulations.
42. The provisions of the Act do not confer or recognise any right on any person to cause an abortion or termination of pregnancy. Even the pregnant woman cannot terminate the pregnancy except under the circumstance set out in the in the Act. Even during the first trimester, the woman cannot abort at her will and pleasure. There is no question of abortion 'on demand'. Section 3 is only an enabling provision to save the registered medical practitioner from the purview of the Indian Penal Code. Termination of pregnancy under the provisions of the Act is not the rule and it is only an exception. The normal rule that the pregnancy should continue to its term shall prevail unless a registered medical practitioner in the case of a pregnancy not exceeding twelve weeks or two registered medical practitioners in the case of a pregnancy exceeding 12 weeks but less than twenty weeks, opine in good faith that the continuance of the pregnancy would involve (i) a risk to the life of the pregnant woman, or (ii) grave injury to her physical or mental health, or (iii) 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. Under Section 3(2), there can be no termination of pregnancy if the length of the pregnancy had exceeded twenty weeks. The only exception thereto is found in Section 5, under which the pregnancy can be terminated immediately to save the life of the pregnant woman at any stage of the pregnancy, if the opinion of the medical practitioner is formed in good faith. Under explanation I to Section 3(2), if the pregnancy is alleged to have been caused by rape, the mental anguish resulting therefrom shall be presumed to constitute a grave injury to the mental health of the pregnant woman. The Explanation only provides for a presumption which can be rebutted in the facts and circumstances of the case. It is not necessary for us to refer to Explanation II in the present case. Sub-section (4)(a) of Section 3 provides that if the pregnant woman has not attained the age of 18, or if she is a lunatic, the pregnancy shall not be terminated except with the consent of her guardian in writing. Sub-section (4)(b) provides that no-pregnancy shall be terminated except with the consent of the pregnant woman save as otherwise provided in Clause (a).
43. Learned counsel for the petitioner places considerable reliance on the provisions of Sub-section (4)(a) and (4)(b) of Section 3. It is contended by him that Sub-section (4)(p) is subject to the provisions of Sub-section (4)(a) and in the case of a minor, it is only the guardian who can decide whether the pregnancy should be terminated or not. According to him, the application of Sub-section 4 (b) is excluded by its own language if the pregnant woman has not attained the age of eighteen. We are unable to accept this contention. The entire scheme of the Act shows that the provisions thereof can be invoked only by the pregnant woman. If she happens to be a minor, the registered medical practitioner, who is approached for terminating the pregnancy must take care to get the consent of the guardian of the minor in writing. Sub-section (4)(a) can never be understood as dispensing with the consent of the pregnant woman if she is below 18 years of age. The provision is only intended to help the registered medical practitioner to take into account all the relevant facts and circumstances as set out in Section 3 so as to decide whether the continuance of the pregnancy will involve any of the risks mentioned in the Section. For example, Sub-section (3) requires the medical practitioner to take into account the pregnant woman's actual or reasonably foreseeable environment while determining the question whether the continuance of the pregnancy would involve such risk as is mentioned in Sub-section (2). In the case of a minor, it is, therefore, necessary for the medical practitioner in order to ascertain the relevant facts under Sub-section (3) to notify the guardian of the minor and get his written consent.
44. Learned counsel for the petitioner submits that the pregnancy of the petitioner's daughter has been caused by rape as defined by the Indian Penal Code and the requirements of Sub-section (2) of Section 3 of the Act are fulfilled. According to him, the continuance of (he pregnancy would involve grave injury to the physical or mental healthy of his daughter. There is no substance in this contention. As pointed out already, Explanation I provides only for a presumption. No doubt the Court is bound to presume, as the expression used is "shall be presumed". But, such presumption can be rebutted on the facts. In the present case, the question whether the pregnancy is caused by rape cannot be decided here, as it may arise before the Metropolitan Magistrate. But, even if it is assumed that the pregnancy is caused by rape, there is no question of anguish caused by such pregnancy in the pregnant woman. We have already pointed out that Sasikala is very keen on continuing the pregnancy and bearing the child. Hence, the continuance of the pregnancy will not cause any injury to her mental health.
45. Learned counsel for the petitioner invites our attention to the judgment of a Division Bench of this Court in Komalavalli v. C.R. Nair and Ors. (1983 L.W.(Crl.)190). The petitioner therein was a woman having two children. She was gang-raped by three or four persons and became pregnant. She was detained in a Women's Welfare Institution. She applied under Article 226 of the Constitution or India for a direction to the government Maternity Hospital to terminate her pregnancy. The Court was satisfied that she was impregnated against her will and unless the pregnancy was terminated, she will suffer traumatic and psychological shock. Hence, the Court granted the petition subject to the condition that qualified gynaecologists examine her and find that pregnancy can be terminated without detriment to her life and safety. The petitioner's husband was also a party to the proceeding. He was present in Court. The Bench has recorded that he stated that he will make the necessary arrangements for the future custody of the petitioner. That ruling will have no bearing in this case. Counsel on both sides have not been able to place before us a ruling of any Court in India which has a relevance to this case.
46. In Sushil Kumar Verma v. Usha (AIR 1987 Delhi 86), a single Judge of the Delhi High Court held that the wife's aborting foetus in her first pregnancy without the consent of the husband would amount to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act (25 of 1955). Of course, the ruling has no relevance; but that is a case in which the Court took the view that the wife is not entitled to terminate her pregnancy without the consent of her husband. It is not necessary for us in this case to discuss the correctness of the view taken therein.
47. The other reasons adduced by the petitioner in support of his prayer that the first respondent is a bad character and if his daughter delivered a child for him, it may lead to various problems, have no relevance. Even if the petitioner is entitled to pray for termination of pregnancy, the same can be ordered only if the continuance of the pregnancy would involve the risks mentioned in Sub-section (2) of the Section 3 of the Act. In the present case, the petitioner has not made out any ground for granting the prayer. We are also of the opinion that if termination of pregnancy is ordered against the will of Sasikala, it will undoubtedly affect her mental health and there is likelihood of her physical health also being affected thereby.
48. The learned Additional Public Prosecutor rightly points out that the Constitution of India does not make any distinction between a major and a minor in the matter of fundamental rights. According to him, Article 21 of the Constitution of India is wide enough to include the right of the girl Sasikala to continue her pregnancy and have a child. In Durga Das Basil's "Shorter Constitution of India", 10th Edition, the following passage is found at page 108:-
"Are there any unenumerated Fundamental Rights under the Constitution of India? A view is recently gaining ground that even though a right is not specifically mentioned in Article 19(1), it may still be regarded as a fundamental right if it can be regarded as 'an integral part' of any of the fundamental rights specifically mentioned in Article 19(1) as distinguished from the ordinary incidents of a named right.
Consonant with this view, it has been held that the following unenumerated rights can be enforced under Article 19 even though not mentioned therein:
(a) Right to travel, which is necessary for exercising one's fundamental rights of trade or business under Article 19(1)(g).
(b) Right to privacy, as an integral part of the freedom of movement under Article 19(1)(d).
(c) Right to receive such higher or professional education as is necessary for carrying on a particular trade or profession, under Article 11(1)(g).
(d) Right to human dignity.
(e) Right of an accused to a speedy trial."
Again, at page 157 it is said:
"Right of privacy. 1. In Kharak Singh's case (AIR 1963 S.C.1295), domiciliary visit by the Police without the authority of a law, was held to be violative of Article 21, assuming that a right or privacy was a fundamental right derived from the freedom of movement guaranteed by Article 19(1)(d), as well as personal liberty guaranteed by Article 21.
2. But such right would not be absolute but must be subject to reasonable restrictions so that a provision for domiciliary visits would not be unreasonable if confined to habitual criminals or persons having criminal antecedents. Nor would it be violated by posting Policemen immediately outside the jail.
3. Similarly, wire-tapping of voluntary conversation, for the purpose of investigation of crime, has been upheld, assuming that privacy of conversation would be derived from personal liberty' under Article 21."
49. The learned Additional Public Prosecutor referred to the judgment of the Supreme Court in Govind v. State of Madhya Pradesh and Anr. (AIR 1975 SC 1378). Dealing with the right of privacy, the Court said that it will necessarily have to go through a process of case-by-case development. The Court referred to the judgment of the Supreme Court of the United States in Roe v. Henry Wade (1973) 410 US 113).
50. Our attention is drawn to the judgment of the Supreme Court in State of Maharashtra v. Madhukar Narayan Mardikar (AIR 1991 SC 207). It is held that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when one likes. So also it is not open to any and every person to violate her person as and when he wishes.
51. We are also of the view that the life of the child in the embryo cannot be taken away for the reasons urged by the petitioner.
52. Jane E.S. Fortin, Lecturer in Law, King's College, London has in his Article "Legal Protection for the Unborn child" at page 54 in the "The Modern Law Review", January 1988, (Vol.51, No. 1) said thus:-
"The fact that the unborn child is physically dependent on its mother prior to birth need not lead to the assumption that it has no relevant separate existence nor to the assumption that it has no moral or legal significance."
53. The Hindu law has always recognised the right of a son en ventre sa mere in the family property. In Mayne's Hindu Law, 12th Edition, page 688 (Para 443) it is said:-
"A son who was in his mother's womb at the time of partition but was born subsequent to it, is however entitled to reopen the partition and to receive a share equal to that of his brothers. For, a son in the womb is in point of law in existence. If the pregnancy is known at the time, the distribution should be deferred till its result is ascertained, or the distribution may take place, and a share equal to that of a son may be provisionally reserved so as to be allotted to the after-born son, if any. If the pregnancy is not known, and a son is afterwards born, a redistribution must take place of the estate as it then stands. However, if the son in the womb is not born alive he has no rights."
54. Section 20 of the Hindu Succession Act, 1956, is in the following terms:-
"A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate."
CONCLUSION
55. Taking the facts and circumstances of the case into account, we hold that the prayer of the petitioner cannot be granted. However, we consider it necessary to issue appropriate directions in the interests of the girl as regards the care and attention to be given to her during her pregnancy and for the post-delivery period. We will pass a separate order containing such directions. Hence, this petition is dismissed.
SRINIVASAN & ABDUL HADI, JJ.
ORDER -Srinivasan, J.
ORDER: Learned counsel for the petitioner prays for Special Leave to Appeal to the Supreme Court. No doubt, the case is the first of its kind but the provisions of the Medical Termination of Pregnancy Act are very clear. We do not find any justification to grant leave to appeal to the Supreme Court. We reject the request.
We have, today, passed a detailed order in H.C.M.P.No. 264 of 1993, dismissing the petition filed by the petitioner herein for a direction to Awai Home to produce his daughter before the Superintendent, Government Kasthuri Bhai Gandhi Hospital, Triplicane, Madras and direct the Hospital authorities to terminate her pregnancy. We have dismissed the petition for the reasons stated in that order. We have stated therein that we will pass a separate order, giving certain directions, which are necessary in the interests of the girl as regards care and attention to be given to her during her pregnancy and for the post-delivery period.
2. Now we have heard learned counsel on both sides as regards the appropriate directions to be issued. We are of the view that the following directions will meet the ends of justice and will be in the interests of the girl. Yesterday (1.12.1993) the 1st respondent has filed a counter-affidavit in H.C.M.P.No. 264 of 1993. While denying the averments contained in the affidavit of the petitioner the 1st respondent has stated that he is working as a driver and earning a salary of Rs. 1,500/- per men sem. It is also stated by him that his wife is in the third month of her pregnancy and there will be no risk to the life of his wife, if the pregnancy (SIC) tinues. He has stated that he is ready and willing to take care of his wife and also undertook to (SIC) all her medical expenses. He has further stand that all sorts of medical expenses could (SIC) provided by him to his wife at his own expense Learned counsel for the petitioner has pointed out hat the 1st respondent has not disclosed the place where he is working or the particulars of his employer. It is stated by the 1st respondent that he is working in Indian Overseas Bank. The said statement is not found in the counter- affidavit filed by him, but his oral statement, for the present is accepted at its face value.
3. It is contended by learned counsel for the petitioner that the 1st respondent cannot be recognised by this Court as the husband of his daughter and he shall not be permitted either to meet the girl or to provide for the medical or other expenses of the girl. We are of the view that though we do not recognise the status of the 1st respondent as at present and the question has to be decided only in the proceedings before the Metropolitan Magistrate Court, the interests of justice will require a direction being given to the 1st respondent with regard to the above matters, particularly, when he has categorically admitted before us that he is responsible for causing pregnancy of the petitioner's daughter. The petitioner's daughter has also given evidence already that the 1st respondent is her husband and he has caused the pregnancy. No doubt, there is no explicit statement in the counter-affidavit filed by the 1st respondent that he caused the pregnancy. It is very clear from the affidavit that he is the person who caused the pregnancy inasmuch as he has stated repeatedly that the girl in question is his wife and that he undertake to meet all her medical and other expenses. In the circumstances, we give the following directions:
(1) The 1st respondent shall deposit a sum of Rs. 250/- (Rupees Two Hundred and Fifty) every month, in addition to the amount being paid by the petitioner on or before the 10th of the month, with the Avvai Home for the food and medical expenses of the girl in question, viz. Sasikala. The first of such deposits shall be made on or before 10th of December, 1993. We are recording here that the petitioner has stated before us, through his counsel, that he will continue to meet the expenses of his daughter for accommodating her in Avvai Home as at present. It is stated that he will come with appropriate application if he wants any modification in the order already passed. It is also stated by him that he intends to file an appeal before the Supreme Court.
(2) The Warden or Chief Officer, who is in charge of Avvai Home shall make arrangements to take the girl Sasikala immediately to Government Kasthuri Bhai Gandhi Hospital, Triplicane, Madras and get the necessary tests carried out.
(3) The Warden or Chief Officer, who is in charge of the administration of Awai Home shall act in accordance with the directions of the Doctors of the said Hospital.
(4) The Chief Medical Officer of the said Hospital shall depute a senior Doctor to examine the girl Sasikala and give proper advice to her in the matter of medicine, diet, etc. (5) The girl Sasikala must be examined by a senior Doctor of the said Hospital atleast once in a week in the third trimester.
(6) At the appropriate time, as may be advised by the Doctors of the said hospital, the authorities of the Awai Home shall get the girl Sasikala admitted in the said Hospital for delivery.
(7) The 1st respondent is permitted to meet the girl Sasikala once in a month in Awai Home in the presence of the Warden/Chief Administrative Officer. But he is not permitted to take the girl Sasikala out of Awai Home.
Learned counsel for the petitioner objects to this direction. He points out that the earlier order passed by the Bench on 20.9.1993 prohibits specifically the meeting of the 1st respondent or his parents with the girl Sasikala during her stay at Awai Home. At that time the pregnancy of the girl was not known. We are of the view that this earlier condition could be modified in the circumstances of the case. We are of the view that it is necessary to make such a provision so that the girl Sasikala will have mental solace inasmuch as it is not in dispute that the pregnancy was caused by the 1st respondent. Otherwise, she may have mental anxiety and worry which may be injurious to her health.
The above directions shall be carried out by the parties concerned. Additional Public Prosecutor is directed to communicate a copy of this order containing the directions to the authorities of Awai Home as well as to the Chief Medical Officer, Government Kasthuribai Gandhi Hospital, Triplicane, Madras.