Delhi High Court
X (Assumed Name Of The Prosecutrix) vs The State (N.C.T. Of Delhi) & Ors. on 22 March, 2013
Author: S. P. Garg
Bench: S.P.Garg
$-30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 22nd MARCH, 2013
+ W.P.(CRL.) 449/2013
X (Assumed name of the prosecutrix) ..... Petitioner
Through : Ms.Kiran Singh, Advocate.
versus
THE STATE (N.C.T. OF DELHI) & ORS. ..... Respondents
Through : Mr.Pawan Sharma, Standing
Counsel (Crl.).
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Open Court)
1. The petitioner- „X‟ has filed the present writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking directions to the respondents for terminating her pregnancy and to preserve the fetus for DNA test.
2. Notice was issued to the respondents. Status report has been filed and it is taken on record. I have made enquiries from the petitioner in the presence of her counsel Ms.Kiran Singh, Advocate in the chamber. W.P.(Crl.) 449/2013 Page 1 of 6 She has expressed her willingness to get her pregnancy terminated. She states that she is unable to carry the pregnancy to full term due to social stigma as she is victim of rape. I have also made enquiries from Kapil who in chamber separately. He had no objection to the petitioner getting her pregnancy terminated. He admitted that he was already married and has children. I also had conversation with Arti, petitioner‟s friend separately. She volunteered to take care of the petitioner during her termination of pregnancy.
3. „X‟ lodged report with the police on 31.01.2013 and case vide FIR No.22/2013 under Section 376/506 IPC was registered against Kapil. She was medically examined at AIIMS on 31.01.2013. It was found that she was having pregnancy of six weeks duration. Her statement under Section 164 Cr.P.C. was recorded. Kapil was arrested and is in custody.
4. Petitioner is not legally married to Kapil and he is already married and has children. Allegedly, he established physical relations with „X‟ on false promise to marry her. Kapil did not inform „X‟ his marital status before seeking her consent for physical relationship. She became pregnant as a result of the alleged rape. During her medical examination, it was found that she was pregnant for about six weeks at that point of W.P.(Crl.) 449/2013 Page 2 of 6 time. She is living alone with her friend in Delhi and her parents are not aware of her association with Kapil. She does not want to bear a child as she was cheated by Kapil and intends to punish him.
5. State has no objection if „X‟ gets her pregnancy terminated. Kapil has also not objected to it. „X‟ is major aged about 22 years. She has consultation with her counsel Ms.Kiran Singh. She understands the consequence of her act. On 21.03.2013, she was medically examined at AIIMS and as per doctors‟ opinion, pregnancy can be terminated with minimal known risks. The victim has expressed her willingness to terminate the pregnancy. The Court must respect her decision. In „Suchita Srivastava and anr. Vs. Chandigarh Administration‟, (2009) 9 SCC 1, the Supreme Court held :
"37. As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evidence that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights."W.P.(Crl.) 449/2013 Page 3 of 6
6. A plain reading of provision in the Medical Termination of Pregnancy Act, 1971 clearly indicates that consent is an essential condition for performing an abortion on a woman who has attained the age of majority and does not suffer any „mental illness‟. The Explanations to Section 3 have contemplated the termination of pregnancy when the same is the result of a rape or a failure of birth control methods since both of these eventualities have been equated with a "grave injury to the mental health" of a woman. In such circumstances, consent of the pregnant woman is an essential requirement for proceeding with the termination of the pregnancy under Section 3 of the Act. Any woman has the option to get the pregnancy terminated by a registered medical practitioner, if it does not exceed 12 weeks. If the duration of the pregnancy exceeds 12 weeks but does not exceed 20 weeks such a termination can be done by not less than two registered medical practitioners, who will give the opinion whether the continuance of the pregnancy would involve a risk to the life of the pregnant woman and grave injury to her physical and mental health.
7. To carry a child in her womb by a woman as a result of conception through an act of rape is extremely traumatic, humiliating and W.P.(Crl.) 449/2013 Page 4 of 6 psychologically devastating. „X‟ hails from the poor strata of the society and is likely to face innumerable mental, physical, social and economical problems in future. There are no reasons to prevent her not to exercise her option voluntarily in her interest.
8. For the forgoing reasons, the petition is allowed with the direction to the SHO of the concerned police station or any other responsible police officer with lady police officer to accompany the complainant „X‟ and produce her before Medical Superintendent, AIIMS within three days to get her pregnancy terminated where Board of two medical practitioners would be constituted by the Medical Superintendent on that day itself. The Medical Board would take the decision immediately for termination of the pregnancy and it will be terminated in accordance with the provision of Section 3 of the Act. They shall preserve the fetus and DNA test will be conducted thereupon and its report shall be produced before the Trial Court at the earliest.
9. The petition is allowed in the above terms. Arti, X‟s friend shall be permitted to take her care. Needless to say, „X‟ will be provided proper medicine, diet and nutritious food as may be necessary for her health. Copy of the order be sent to the Medical Superintendent, AIIMS. W.P.(Crl.) 449/2013 Page 5 of 6
10. Copy of the order be given dasti to the Investigating Officer under the signatures of the Court Master.
(S.P.GARG) JUDGE MARCH 22, 2013 tr W.P.(Crl.) 449/2013 Page 6 of 6