Bombay High Court
Abc (Minor) Through Her Father Kasim Ali ... vs The Union Of India And Anr on 19 May, 2021
Equivalent citations: AIRONLINE 2021 BOM 1437
Bench: S.J. Kathawalla, Surendra P. Tavade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 11525 OF 2021
ABC (Minor), through her father Kasim Ali Khan ... Petitioner
Versus
The Union of India and another ... Respondents
.........
Mr. Prasad Shenoy instructed by Flavia Agnes and Persis Sidhwa for the Petitioner.
Mr. L.T. Satelkar, AGP for the State.
.........
CORAM : S.J. KATHAWALLA AND
SURENDRA P. TAVADE, JJ.
DATED : MAY 19, 2021.
(Vacation Court through video-conferencing)
P.C. :-
1. The above Writ Petition is fled by the father of a minor girl (15 years old) who is a victim of the ofences punishable under Sections 376, 376(2)(n) of the Indian Penal Code, 1976 (the Code) and also punishable under Sections 4, 6, 8 and 12 of the Protection of Children from Sexual Ofences Act, 2012 (the POCSO Act).
2. By an Order dated 12th May, 2021, this Court (Coram : K.K. Tated & Abhay Ahuja, JJ.) directed the Dean of J.J. Group of Hospitals to form a Medical Board as per the provisions of the Medical Termination of Pregnancy Act, 1971 (the Act) to examine the minor on 13th May, 2021. However, the minor was not present before the Medical Board as she was unwell and remained present before the Medical Board only Kanchan P Dhuri ::: Uploaded on - 19/05/2021 ::: Downloaded on - 19/05/2021 23:03:11 ::: 2 / 5 1-WPL-11525-2021.odt on 16th May, 2021. The Medical Board has examined the minor and have submitted their report dated 18th May, 2021. The opinion of the Medical Board is reproduced hereunder :
"AFTER TAKING HISTORY, CAREFUL EXAMINATION, ULTRASONOGRAPHY EXAMINATION AND PSYCHIATRIC EVALUATION THE COMMITTEE HAS COME TO THE OPINION THAT THERE IS NO ABNORMALITY DETECTED AT PRESENT IN THE FETUS AND THE PREGNANT MINOR. BUT THE PREGNANT MINOR DOES NOT WANT TO CONTINUE HER PREGNANCY AND SHE IS ANGUISHED WITH THE PREGNANCY. SHE IS A MINOR OF 16 YEARS OF AGE.
CONTINUATION OF PREGNANCY IN MINOR MAY LEAD TO PREGNANCY RELATED COMPLICATIONS LIKE ANAEMIA, PREGNANCY INCLUDED HYPERTENSION AS WELL AS COMPLICATIONS DURING LABOUR. IT IS ALSO GOING TO HAVE PSYCHOLOGICAL IMPACT ON PREGNANT MINOR WITH UNCERTAIN FUTURE AND CONTINUATION OF PREGNANCY WILL HAVE PHYSICAL AND MENTAL STRESS TO MINOR MOTHER.
PREGNANT MINOR AND HER PARENTS HAVE EXPRESSED THEIR DESIRE TO TERMINATE THE PREGNANCY AND ARE MADE AWARE OF THE DANGERS OF CONTINUATION OF PREGNANCY, AS WELL AS TERMINATION OF PREGNANCY.
SINCE THE PREGNANCY HAS ADVANCED TO 28 WEEKS WELL BEYOND THE LEGAL LIMIT OF TERMINATION OF PREGNANCY i.e. 20 WEEKS, THE TERMINATION CAN ONLY BE DONE WITH Hon'ble HIGH COURT PERMISSION.
THUS IF THE COURT PERMITS, THE PREGNANCY CAN BE TERMINATED AT ANY TERTIARY CARE HOSPITAL AS DESIRED BY THE WOMAN. THE HON. HIGH COURT IS HOWEVER, REQUESTED TO INSTRUCT THE PARENTS TO BEAR RESPONSIBILITY OF THE CHILD AND THE REQUIRED NEONATAL MANAGEMENT IF BORN ALIVE." Kanchan P Dhuri ::: Uploaded on - 19/05/2021 ::: Downloaded on - 19/05/2021 23:03:11 ::: 3 / 5 1-WPL-11525-2021.odt
3. The Division Bench of this Court (Coram : A.S. Oka, as he then was and M.S. Sonak, JJ.) in their Order dated 3 rd April, 2019 passed in Writ Petition Nos.10835 of 2018 and 9748 of 2018, have correctly held that, "in a situation where continuation of pregnancy poses grave injury to physical and mental health of the mother, the pregnant mother could not be forced to continue with the pregnancy merely because it had extended beyond the ceiling of 20 weeks; that would be a serious afront to fundamental rights of such mother to privacy, to exercise reproductive choices, and even to her bodily integrity as also dignity."
4. In the present case as noted above, the Medical Board has clearly opined that the pregnant minor daughter of the Petitioner is anguished with the pregnancy and continuation of such pregnancy may lead to pregnancy related complications like anaemia, pregnancy induced hypertension as well as complications during labour. It is further opined that the continuation of such an unwanted pregnancy will have physical and mental stress to minor as well as have a psychological impact on the minor.
5. We are conscious of the fact that the pregnancy in the present case is a result of rape and sexual abuse and that an FIR has been fled and the criminal proceedings for the same are pending. Accordingly, appropriate directions will have to be given for preservation of tissue and blood samples of the fetus for carrying out requisite medical tests including DNA fnger printing/mapping.
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6. In the above circumstances, we pass the following order :
(i) As per opinion dated 18th May, 2021 of the Medical Board of J.J. Group of Hospitals, Mumbai, the pregnant minor daughter of the Petitioner is permitted to undergo the procedure for medical termination of pregnancy.
(ii) The Petitioner has ofered to present his minor daughter for the requisite procedure at the earliest i.e. by tomorrow, 20th May, 2021, itself.
(iii) The procedure for medical termination of pregnancy shall be conducted by the concerned Doctors of J.J. Group of Hospitals, Mumbai on 20th May, 2021 at 11.00 a.m.
(iv) The Doctors of J.J. Group of Hospitals, Mumbai shall preserve the blood and tissue samples of the fetus for the purpose of carrying out necessary medical tests including DNA and other tests.
(v) The Investigating Ofcer conducting the investigation of the criminal proceedings shall ensure that the samples are forwarded to the Forensic Science Laboratories and the same are preserved for the purpose of trial of the ofence.
(vi) In the event of the child being born alive, the Medical Practitioner conducting the procedure shall ensure that all necessary facilities are made available to such child for saving its life.
(vii) In the event of the child being born alive, the Petitioner and his minor daughter are not willing to take responsibility of such child. In view thereof, the State and its agencies will have to assume full responsibility for such child.
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(viii) The State is directed to immediately place the FIR, medical report and other papers, including statement of the minor daughter of the Petitioner under Section 164 of the Criminal Procedure Code, 1973 (CRPC), before the District Legal Services Authority (DLSA) for payment of amounts to her under the Government Resolution dated 1st August, 2017 i.e. "The Manodhairya Scheme".
(ix) Upon receipt of such papers, DLSA is directed to immediately process the same for payment of compensation to the minor daughter of the Petitioner at various stages contemplated under the aforesaid Scheme. It shall be ensured by the DLSA that such payments are made at the earliest and without any delay in the matter.
(x) The Petitioner as well as the Learned AGP agree that the Writ Petition may be treated as disposed of. Ordered accordingly.
( SURENDRA P. TAVADE, J. ) ( S.J. KATHAWALLA, J. )
Kanchan P Dhuri
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