Madras High Court
S.Kurshith vs The Dean on 18 February, 2021
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P. No.2874 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P. No.2874 of 2021
S.Kurshith ... Petitioner
Vs
1.The Dean,
Chengalpattu Medical College Hospital,
Chengalpattu.
2.The Inspector of Police,
Chengalpattu Taluk Police Station,
Chengalpattu. ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of Mandamus to direct the first respondent to act
in accordance with section 3 of the Medical Termination of Pregnancy Act,
1971 and terminate the pregnancy of petitioner's daughter, a victim in crime
No.3044 of 2020 on the file of the second respondent at the earliest as the
continuance of pregnancy would cause grave danger to the physical or
mental health of her daughter.
1/10
https://www.mhc.tn.gov.in/judis/
W.P. No.2874 of 2021
For petitioner ... Mr.K.C.Karl Marx
For respondents ... Mr.V.Shanmuga Sundar
Special Government Pleader
ORDER
The case involves an unfortunate rape victim whose mother seeks termination of her daughter's pregnancy caused by the accused who has been charged for the criminal offence under section 363, 366(A), 365 IPC read with section 4 and 6 of the POCSO Act.
2. It is the case of the petitioner that a person by name Manimaran (accused) abducted her minor daughter aged 16 years and had sexually exploited her and impregnated her. It is also stated in the affidavit filed in support of this writ petition that the accused Manimaran is the petitioner's neighbour who is aged 33 years and a married man having two daughters aged 9 years and 5 years respectively. The petitioner seeks termination of the pregnancy of her minor daughter, a rape victim on the ground that her studies will get affected and she will be put to physical and mental torture if 2/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021 the child is delivered. According to the petitioner, her minor daughter will face mental trauma if her pregnancy is not terminated.
3. The petitioner has sought for termination of her minor daughter's pregnancy under section 3 of the Medical Termination of Pregnancy Act, 1971. Section 3(2) of the Act reads as follow:
“3.(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.” 3/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021
4. According to the petitioner, on the date of filing of this writ petition, her minor daughter was seven weeks pregnant and therefore, she seeks for early termination of her daughter's pregnancy before further growth. She has also pleaded that there is every possibility that the continuance of pregnancy of her minor daughter would cause grave danger to her physical and mental health.
5. When the matter came up for admission on 11.02.2021, this Court directed the first respondent to appoint a team of Doctors to medically examine the victim and submit their report before this Court on 16.02.2021 with regard to the feasibility of terminating the pregnancy of the petitioner's daughter. As directed by this Court on 11.02.2021, a team of Doctors nominated by the first respondent comprising of (a) HOD of Obstetrics and Gynecology, (b) HOD of Paediatrics, (c) HOD of Radiology, (d) HOD of Neonatology, (e) HOD of Anaesthesia, (f) HOD of Psychiatry and (g) Project Officer medically examined the victim and submitted their report dated 16.02.2021 before this Court. The report dated 16.02.2021 of the 4/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021 Chengalpattu Medical College Hospital, Chengalpattu – 603 001 reads as follows:
“ Medical Board – case report of Miss X D/o Sikkanthan, 15 yrs Old Based on the writ petition W.P.No.2874 of 2021 Miss X D/o Sikkanthan, 15 yrs old, unmarried primigravida has been referred to out hospital through court order regarding feasibility of Medical Termination of Pregnancy. She got admitted on 12.02.2021 at 11.30 AM, AR entry was made in her previous visit to out hospital on 31.12.2020. Her last Menstrual period 17.12.2020 patient was clinically stable on admission not anemic, expert USG done revealed intrauterine gestation corresponding to 7 weeks, ECHO – Normal, Psychiatric counselling was given. All Basic investigations were done for the patient. MTP Medical Board Committee consisting of Head of Department of Obstetrics and Gynecology, Paediatrics, Radiology, Neonatology, Psychiatry, Anesthesia was formed, discussed.
Based on the Medical Examination and Medical reports of the patient the Medical board is in favor to proceed for MTP at the most earliest.” 5/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021
6. As seen from the report dated 16.02.2021, the specialist Doctors have advised early termination of pregnancy for the minor rape victim.
7. To clear the suspicions, this Court had also directed the father of the victim to appear before this Court, since this writ petition has been filed only by the mother. As directed by this Court, the father of the victim, Sikkanthar appeared before this Court with his identity cards. The same has also been verified by this Court and is found to be genuine.
8. In a similar case, the Kerala High Court by its Judgment dated 04.01.2021 passed in W.P(C) No.29209 of 2020(A), after recording the medical report submitted by the expert Doctors, permitted the medical termination of pregnancy of a minor rape victim. In the said decision, the Kerala High Court has relied upon the following decisions:
(a) ABC vs Union of India & Others : 2020 (4) KLT 279,
(b) Ms. X vs. State of Kerala and Others : 2016 (4) KLT 745
(c) A vs. Union of India : (2018) 4 SCC 75 6/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021
(d) Murugan Nayakkar vs. Union of India : 2017 SCC Online SC 1092
(e) Sarmishtha Chakrabortty vs. Union of India : (2018) 13 SCC 339 wherein the respective courts have permitted termination of pregnancy based on medical reports.
9. Learned counsel for the petitioner also drew the attention of this Court to the orders of this Court dated 19.06.2019 passed in Crl.O.P. 14506 of 2019 in the case of X vs. State of Tamil Nadu and other and dated 19.01.2021 passed in W.P.(MD).No.659 of 2021 in the case of Mahalakshmi vs. District Collector and others wherein also medical termination of pregnancy was permitted.
10. In the case on hand, as seen from the medical report dated 16.02.2021 submitted by the first respondent, the victim girl is seven weeks pregnant. As per the provisions of section 3(2) of Medical Termination of Pregnancy Act, 1971, the pregnancy can be terminated by a medical practitioner upto a maximum of twenty weeks pregnancy. In the case on 7/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021 hand, as seen from the medical report, the victim is only seven weeks pregnancy. Hence it is within the permissible limit as prescribed under section 3(2) of the Medical Termination of Pregnancy Act, 1971.
11. After giving due consideration to the present condition of the victim who is a minor aged 16 years and studying 10th standard as rightly contended by the learned counsel for the petitioner, she will be facing mental trauma, if her pregnancy is continued. Her physical and mental state of mind will also get affected if the pregnancy is allowed to continue. A case has already been registered against the accused under the POCSO Act as well as under various sections of IPC.
12. After giving due consideration to the aforementioned factors, the relief sought for in this writ petition will have to be necessarily granted as the medical report submitted before this court also supports the case of the petitioner.
8/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021
13. In the result, the first respondent is directed to appoint a qualified Doctor to terminate the pregnancy of the victim, “X” who is the minor daughter of the petitioner on 19.02.2021 between 10 am and 5 pm and report to that effect shall be placed before this court on 24.02.2021.
14. With the aforesaid direction, this writ petition is disposed of. No costs.
15. Post the matter for reporting compliance on 24.02.2021.
18.02.2021 nl Note: Issue order copy on 18.02.2021.
Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order 9/10 https://www.mhc.tn.gov.in/judis/ W.P. No.2874 of 2021 ABDUL QUDDHOSE.J nl To
1.The Dean, Chengalpattu Medical College Hospital, Chengalpattu.
2.The Inspector of Police, Chengalpattu Taluk Police Station, Chengalpattu.
W.P. No.2874 of 2021
18.02.2021 10/10 https://www.mhc.tn.gov.in/judis/