Delhi High Court
X vs Govt Of Nct Of Delhi & Anr on 6 December, 2013
Author: Sunita Gupta
Bench: Sunita Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2008/2013 and Crl. M.A. 18262/2013 (for directions)
Date of Decision: 6th December, 2013
X
(Assumed named of Petitioner) ..... Petitioner
In person with Ms. Nandita
Roy, Advocate.
versus
GOVT OF NCT OF DELHI & ANR ..... Respondents
Through: Mr. Saleem Ahmed, ASC for
the State with SI Ramesh
Chand, PS Kamla Market.
Ms. Poonam Singh, Welfare
Officer, Nirmal Chhaya.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
SUNITA GUPTA, J. (Oral)
1. This is a writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. for issuance of appropriate directions to the respondent to facilitate medical termination of pregnancy which is likely to cause grave injury to the petitioner and put the child at substantial risk, if born. WP(Crl.) No.2008/2013 Page 1 of 7
2. Notice of the petition was issued to the respondents. Status report has been filed by the State wherein it is stated that on 29th August, 2013 an information was received from J.R. Sharan, Project Co-ordinator, Rescue Foundation and Ms. Hem Lata, Probation Officer, Rescue Foundation that 3-4 girls were forcibly kept in Kotha No. 41, 1st Floor , G.B. Road, Delhi and they were subjected to forcible prostitution. On this information a raiding team was constituted and raid was conducted at the Kotha. Four girls, including the petitioner, were rescued. On the statement of one of the rescued girl FIR No. 124/2013 dated 30th August, 2013 under Sections 376/365/342/109 IPC read with Section 3/4/5/6 ITP Act was registered at Police Station Kamla Market. During investigation petitioner disclosed that she was brought to Delhi from her village by an unknown boy and was sold at GB Road where she was compelled to do prostitution. Her statement under Section 164 Cr.P.C. was recorded wherein she supported her previous statement.
3. Present petition has been filed by the petitioner stating therein that she is now about 19 years of age. When the petitioner was WP(Crl.) No.2008/2013 Page 2 of 7 taken by the authorities of respondent No.1 Nirmal Chhaya for medical examination at Deen Dayal Upadhayay Hospital, New Delhi it was found that she is HIV positive and is about 19 weeks pregnant. She informed the authorities and the doctors that the child was conceived in forceful and undesired sexual intercourse against her will and given her ill-health and the likelihood that the child will also be born at risk, she wishes to medically terminate her pregnancy as it is a cause of stress and grave injury to her medical health. Since the petitioner is in the protective custody of respondent No. 1 she has not been permitted to exercise her legal rights of medically terminating her pregnancy which she expresses to cause grave threat to her physical and mental safety. As such, it was prayed that directions be issued to the respondent to facilitate medical termination of pregnancy.
4. I have made inquiries from the petitioner in the presence of her counsel Ms. Nandita Roy, Advocate in my Chamber. She has expressed her willingness to get her pregnancy terminated. She states that her parents have already died. She has a younger brother to support. She is unable to carry her pregnancy to full WP(Crl.) No.2008/2013 Page 3 of 7 term due to social stigma as she is victim of circumstances whereby she was taken to brothel and was forced to indulge in prostitution.
5. In the status report filed by the State, State has given no objection if permission is granted for termination of pregnancy as it will not affect the investigation in any manner. Superintendent, Department of Women and Child Development, Nirmal Chhaya, Jail Road has also given no objection to the decision taken by the petitioner for terminating her pregnancy.
6. On 5th December, 2013, she was examined by the medical board consisting of Dr. Poonam Aggarwal and Dr. Ritu Goel and the board opined that she is 18 months plus pregnant hence her pregnancy can be terminated after routine investigation. The victim has expressed her willingness to terminate the pregnancy and she understands the consequences of her act.
7. In Suchita Srivastava and anr. v. Chandigarh Administration (2009) 9 SCC 1, Supreme Court has held as under:
"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 WP(Crl.) No.2008/2013 Page 4 of 7 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."
8. 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. A 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 WP(Crl.) No.2008/2013 Page 5 of 7 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.
9. 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 psychologically devastating. In similar circumstances, permission was granted by this Court in K.M. Mahima v. State and Ors. 2003 VI AD (Delhi) 510; X v. The State (N.C.T. of Delhi) and Ors. 2013 (2) JCC 1068 and Janak Ramsang Kanzariya (Minor) thro'Manjuben Ramsang Kanzar v. State of Gujarat and Anr. 2011 Crl. L.J 1306.
10. The petitioner, aged 19 years, hails from 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.
11. For the foregoing reasons, the petition is allowed with the directions to respondent No. 1 to accompany the petitioner „X‟ WP(Crl.) No.2008/2013 Page 6 of 7 and to produce her before medical superintendent, Deen Dayal Upadhayay Hospital, New Delhi within three days to get her pregnancy terminated where board of two medical practitioners would be constituted by Medical Superintendent which will 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.
12. The petition is allowed in the above terms.
13. Respondent No. 1 shall ensure that the petitioner is provided proper medicine, diet and nutritious food as may be necessary for her health. A copy of the order be sent to Medial Superintendent, Deen Dayal Upadhayay Hospital, New Delhi. A copy of the order be given dasti to petitioner and respondent No.1 under the signature of the Court Master.
SUNITA GUPTA, J DECEMBER 06, 2013 AK WP(Crl.) No.2008/2013 Page 7 of 7