Karnataka High Court
Smt. Mallavva W/O Hanamapa ... vs State Of Karnataka on 4 January, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 100003 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 100003 OF 2023 (GM-RES)
BETWEEN:
SMT. MALLAVVA W/O. HANAMAPA MUCHALAGUDDA,
AGE. 42 YEARS, OCC. AGRICULTURE/HOUSEHOLD
R/O.NANDIKESHWAR, TQ. BADAMI,
DIST. BAGALKOT.
...PETITIONER
(BY SRI P. N. HOSAMANE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE
M.S.BUILDING, BANGALORE-560001
2. THE DISTRICT SURGEON DISTRICT HOSPITAL
NAVANAGAR, BAGALKOT-587201.
3. CIRCLE POLICE INSPECTOR,
BADAMI POLICE STATION,
BADAMI-587201.
...RESPONDENTS
(BY SRI V.S.KALASURMATH, HCGP FOR RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF MANDAMUS PERMITTING THE PETITIONER TO
TERMINATE ONGOING PREGNANCY OF HER MINOR DAUGHTER
THROUGH REGISTERED MEDICAL PRACTITIONER AT ANY
APPROVED PRIVATE OR GOVERNMENTS CENTER OF HOSPITAL
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WP No. 100003 of 2023
AS PER ANNEXURES-B AND C DATED 29.12.2022 AND ISSUE
WRIT IN THE NATURE OF MANDAMUS RESTRAINING THE
RESPONDENTS FROM TAKING ANY COERCIVE ACTION OR
CRIMINAL PROCEEDINGS AGAINST THE PETITIONER OR ANY
REGISTERED MEDICAL PRACTITIONER TERMINATING THE
PREGNANCY OF THE PETITIONER'S MINOR DAUGHTER AT ANY
APPROVED PRIVATE CENTER OR HOSPITAL WITHIN BAGALKOT
DISTRICT.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
In this petition, the petitioner seeks the following reliefs:
I. Issue writ of mandamus permitting the petitioner to terminate ongoing pregnancy of her minor daughter through registered Medical Practitioner at any approved private or Governments Center of Hospital as per Annexures-B and C dated 29.12.2022.
II. Issue writ in the nature of mandamus restraining the respondents from taking any coercive action or criminal proceedings against the petitioner or any registered medical practitioner terminating the pregnancy of the petitioner's minor daughter at any approved private center or hospital within Bagalkot district.-3- WP No. 100003 of 2023
2. On 03.01.2023, this Court passed the following order :
"Learned HCGP on instructions submits that if the petitioner approaches respondent No.2/Districrt Surgeon today during the course of the day, respondent No.2 would take necessary steps to constitute a committee to examine the petitioner's daughter-X with regard to her claim for termination of her pregnancy and submit report in this regard on or before the next date of hearing.
Submission of learned HCGP is placed on record. Accordingly, respondent No.2 is directed to take necessary steps to form/constitute a committee to examine the daughter of the petitioner and submit report as regards feasibility of termination of pregnancy on 04.01.2023.
Relist on 04.01.2023 under the caption 'orders' at the top of the list.
Registry to issue copy of this interim order to the learned HCGP as well as learned counsel for the petitioner forthwith."
3. Pursuant thereto, the learned HCGP has filed a memo along with the communication dated 04.01.2023 -4- WP No. 100003 of 2023 enclosing a copy of the report of the committee which has opined that the pregnancy of the petitioner's daughter can be terminated subject to the terms and conditions mentioned in the report. The said communication along with report read as under :
COMMUNICATION "To, The District Surgeon, District Hospital, Bagalkot.
From, Dr. S.M.Tapashetti, Dr. Divya Mirji, Dr.Kavya N., Subject : Opinion on termination of pregnancy of minor girl Kum.X. Ref : (1) Your letter dated 03.01.2023.
(2) Letter by D.C. Sir dated 03.01.2023.
Respected Sir, Kumari X was examined by Dr.S.M.Tapashetti on 17.12.2022 at 7.10 p.m. on requisition by CPI Badami Circle dated 17.12.2022 under Crime No.190/2022 under Section 376(2)(N), 376(2)(I)(H) of IPC and POCSO Act, 2012. On examination on 17.12.2022, she was diagnosed to be primigravida with 24 weeks 3 days gestation with moderate -5- WP No. 100003 of 2023 anaemia with RL negative status (A-Negative blood group).
As on 04.01.2023, she is 26 weeks 04 days gestation. As on 03.01.2023 her repeat complete blood count shows a Hb% of 8.8g%.
COMMITTEE OPINION (1) Termination of pregnancy can be done due to required reasons.
(2) Inherent risks of pregnancy termination, like incomplete abortion, prolonged procedure, sepsis, PPH, mental trauma, surgical interventions if needed and others can occur.
(3) There can be aggravation in any of these complications due to anaemia status and Rh- negative status, and may pose life risk to her. (4) Due precautions like arrangement of adequate blood, antibiotic coverage, stringent monitoring needs to be done during the procedure to reduce risk.
(5) Risks of the procedure need to be weighed against the benefits of termination. (6) In view of risks associated with termination, the procedure needs to be conducted in tertiary care centres/medical college.
(7) DNA testing of abortus needs to be done.
Thanking you,"
4. In view of the aforesaid facts and circumstances and report of the committee coupled with the judgment passed by a coordinate Bench of this Court in Kumari 'D' vs., The State of Karnataka and Others in Writ -6- WP No. 100003 of 2023 Petition No.104344/2021 disposed off on 17.11.2021, I am of the considered view that the petitioner would be entitled to get pregnancy of her daughter terminated in terms of the report. In the result, I pass the following:
ORDER Petition is allowed and disposed off in terms of the opinion of the committee referred to supra.
Respondent No.2 is directed to forthwith ensure medical termination of pregnancy of Kumar 'X' (name of the petitioner is mentioned as 'X' for the sake of confidentiality) in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971.
It is further directed that upon termination of the pregnancy the 2nd respondent shall ensure that the foetus/abortus is preserved for DNA testing etc. A copy of this order to be furnished to the parties forthwith.
SD JUDGE CKK