Delhi High Court
Km. Mahima vs State And Ors. on 28 August, 2003
Equivalent citations: 2003VIAD(DELHI)510, 106(2003)DLT143
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT J.D. Kapoor, J.
1. The petitioner has been placed in a piquant situation by the Magistrate as well as by the learned Sessions Judge. She had filed a complaint under Sections 366A/376/506(2), IPC against respondent for having been raped. According to her she became pregnant on account of the act of rape. On her representation she was sent for medical examination. The pregnancy test which was conducted on 23rd June, 2003 was found to be positive, though the occurrence is said to be have taken place on 24th May, 2003.
2. In order to preserve her honour and her repugnance to have a child born out of rape she moved an application before the learned Magistrate for permission to terminate her pregnancy and for preservation of foetus and DNA test for the purpose of evidence that she was raped by the accused-respondent. The learned Magistrate dismissed the application but with the observation that there is no provision in the aforesaid Act for intervention by the Court as it is the prerogative of the aggrieved party to decide whether she wants to terminate the pregnancy or not. Aforesaid order was affirmed by the learned Additional Sessions Judge when the complainant filed a revision petition. It appears that both the Courts below lost sight of the fact that the complainant had primarily moved the application for preservation of foetus and conducting the DNA test as a piece of evidence against the respondent-accused.
3. So far as the termination of pregnancy by a woman is concerned, it is governed by Section 3 of the Medical Termination of Pregnancy Act, 1971. According to this 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. 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.
4. To carry a child in her womb by a woman as a result of conception through an act of rape is not only extremely traumatic for her but humiliating, frightening and psychologically devastating and as a human being she becomes an object of scorn and ostracisation. By not allowing the petitioner from getting her foetus preserved for conducting DNA test as a proof of her having been raped by the accused both the Courts below were not justified. Since the accused was summoned on a complaint filed by the petitioner and not by way of a report lodged with the police, it was all the more essential for the Courts below to allow the petitioner to preserve her foetus for the purpose of conducting DNA test while getting her pregnancy terminated.
5. Merely by saying that the petitioner has independent right of getting her pregnancy terminated Was not sufficient as her main object was not only to get her pregnancy terminated but also preserve the foetus for conducting DNA test. The time wasted in not giving such direction by the Courts below may cause a situation resulting in injury to the mental health of the complainant as the termination of the pregnancy exceeding 20 weeks may prove dangerous to her life as a consequence of which she would suffer the mental agony and torture of giving birth to a child of rape.
6. For the foregoing reasons both the orders passed by the Courts below are set aside being not in conformity with the provisions of law and suffering from inherent infirmity. In the result the petition is allowed with the direction to the SHO of the concerned police station or any other responsible police officer to accompany the complainant and present her before the Medical Superintendent, AIIMS on 1st September, 2003 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 shall take the decision immediately for terminating the pregnancy and terminate the same in accordance with the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971 and shall preserve the foetus and conduct DNA test thereon and produce the report thereof before the learned Trial Court. In case it is not possible to terminate the pregnancy for any reason whatsoever, then the Medical Board shall conduct the DNA test by the prescribed medical modes as a proof of conception by the accused.
7. Petition is allowed and is disposed of in the aforesaid terms. Copy of the order be sent to the SHO of the concerned police station for compliance and be given dusty to the petitioner and a copy be sent to the Medical Superintendent, AIIMS forthwith.