Bombay High Court
Zakiya Chaudhary (Minor) Through Her ... vs The Union Of India And Anr on 26 April, 2021
Bench: A. A. Sayed, Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 10478 OF 2021
XYZ (Minor)
Through Her father Mohammed
Suleman Yunus Chaudhary ... Petitioner
Vs.
The State of Maharashtra ... Respondent
...........
Mr. Prasad Shenoy a/w. Vinodini Shrinivasan i/b. Persis Sidhva for
the Petitioner.
Mrs. Uma Palsuledesai, AGP for the Respondent-State.
Mr. D. P. Singh for the Respondent-UOI.
Dr. Navin Srinivasan of K.E.M. Hospital, Mumbai present in person.
..........
CORAM: A. A. SAYED AND
MADHAV J. JAMDAR, JJ.
DATE : 26th APRIL, 2021.
(THROUGH VIDEO CONFERENCE) P. C:-
1. In the order dated 22nd April, 2021, in the appearances the name of the learned AGP appearing on behalf of the Respondent-
State was not reflected.
2. Order be corrected by showing appearance of the learned AGP as follows:-
Uma Palsuledesai, AGP for the Respondent-State.
3. Pursuant to the order dated 22nd April, 2021, Dr. Navin Srinivasan of the K.E.M. Hospital is present in the Court and he has Sonali ::: Uploaded on - 26/04/2021 ::: Downloaded on - 08/09/2021 20:24:23 ::: 2/5 4. wpl.10478.2021.doc produced the report dated 24th April, 2021 of the Medical Board.
4. The recommendations of the Medical Board are as follows:-
"Current pregnancy is about 27 to 28 weeks by patient's clinical and 26 weeks 3 days by sonographic evaluation. There are no anomalies and the baby weight is around 988 gms as of 23/04/2021.
The mother's physical condition is normal and there is no physical risk to the mother, due to continuation or termination of pregnancy.
If the pregnancy is terminated at 26 to 28 weeks, the baby may be born alive. The neonatalogical guidelines allow nonresuscitation in only 2 conditions, Anencephaly and Trisomy 13. Average surivival rate of the newborn born between 26 to 28 weeks of gestation at our institution is 55 to 66 % as per last 5 year's data.
This means that this neonate in question will be resuscitated and may live for variable length of time. In that case, a family member will have to be with the neonate till discharge for handing over to child welfare committee/adoptive agency. If the neonate dies due to problems of prematurity, the death will have to be reported to the government authorities as per current procedural guidelines. This will be deliberate preterm induction for avoidable cause.
Maternal risks: The petitioner was severely anemic when she came to the hospital. She has been transfused blood for her own health as in pregnancy, a person with severe anemia is at high risk of cardiac failure.
As of now she is in a physically and mentally fit condition to undergo procedure of induction of labour for termination of pregnancy.
The Petitioner and her parents have to know certain risks associate with deliberate medical interventions. (Risk of prolonged labour because of incoordinate uterine action. Prolonged rupture of membranes with infection resulting in chorioamnionitis, a small chance of lower segment cesarean section for maternal indication, anesthesia risk if any surgical intervention is required.
Since her anemia is corrected with blood and nutrition is still likely to be poor, wound healing may not be good. Sepsis risk Sonali ::: Uploaded on - 26/04/2021 ::: Downloaded on - 08/09/2021 20:24:23 ::: 3/5 4. wpl.10478.2021.doc also is high which will be taken care of with antibiotics. She is very mildly hypothyroid for which opinion of endocrinologist is taken and she is fit for induction of labour as an emergency intervention at the current value of TSH. Pregnancy out of sexual assault (for which this board recommended termination in the past), causes the stigma and profound psychological effect on a growing adolescent. That is a unique situation.
Hence weighing the maternal health the board is of the opinion that the pregnancy may be terminated by induction of labour.
Psychological counseling is recommended. Emotional support and counselling has taken innumerable mothers through such testing times.
The board also requests the court to grant immunity to all board members from any medico legal liability for to giving opinion as asked by the honourable court."
5. The minor girl who is stated to be a victim of sexual assault is presently admitted and indoor patient at K.E.M. Hospital, Mumbai. In view of the above, we permit the minor girl to terminate pregnancy at K.E.M. Hospital, Mumbai. The said procedure shall be carried out at the earliest.
6. Since the minor girl who is victim of sexual assault, we also issue following directions:-
(i) The blood sample and tissue sample of the fetus shall be preserved for the purpose of carrying out necessary medical tests including DNA and other tests.
(ii) The Investigating Officer conducting investigation shall ensure Sonali ::: Uploaded on - 26/04/2021 ::: Downloaded on - 08/09/2021 20:24:23 ::: 4/5 4. wpl.10478.2021.doc that the samples are forwarded to Forensic Science Laboratory and the samples shall be preserved for the purpose of trial of the offence.
(iii) In case, if the child is born alive, the Medical Practitioner who conducts the procedure will ensure that all necessary medical facilities are made available to such child for saving it's life.
(iv) In case, if the child is born alive and if the minor girl and her parents are not willing or are not in a position to take responsibility of such a child then the State and its agencies will have to assume full responsibility for such child.
(v) Respondents also shall take care of the minor girl and provide all necessary medical facilities and medicines after such procedure is performed.
(vi) The Respondent-State is directed to immediately place the FIR, medical report and other papers, including statement of the minor girl under Section 164 of the Criminal Procedure Code, before the District Legal Services Authority (DLSA) for payment of amounts to her under the Government Resolution dated 01.08.2017 i.e. "The Manodhairya Scheme" in accordance with law.
(vii) Upon receipt of such papers, DLSA is directed to immediately Sonali ::: Uploaded on - 26/04/2021 ::: Downloaded on - 08/09/2021 20:24:23 ::: 5/5 4. wpl.10478.2021.doc process the said papers for payment of compensation to the minor girl at various stages contemplated under the aforesaid scheme. It shall be ensured that such payments are made at the earliest and without any delay in the matter.
7. The Petition is disposed of in the aforesaid terms.
8. All concerned to act on an authenticated copy of this order.
(MADHAV J. JAMDAR, J.) (A. A. SAYED, J.) Sonali ::: Uploaded on - 26/04/2021 ::: Downloaded on - 08/09/2021 20:24:23 :::