Bombay High Court
Xxxxxxxxxx vs Xxxxxxxxxx on 27 December, 2021
Bench: S.J. Kathawalla, Abhay Ahuja
Digitally signed by
SWAROOP SWAROOP SHARAD
SHARAD PHADKE
Date: 2021.12.27
PHADKE 16:59:41 +0530
1_wpl_30375_of_2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.30375 OF 2021
XXXXX ... Petitioner
Versus
The State of Maharashtra and Ors. ... Respondents
Mr. Cusher Ashley David, for Petitioner.
Mrs. Uma Palsule Desai, AGP, for State.
CORAM: S.J. KATHAWALLA &
ABHAY AHUJA, JJ.
DATE: 27th DECEMBER, 2021
(VACATION COURT
THROUGH VIDEO CONFERENCING )
P.C.:
1. Heard the learned Advocates for the parties. The above Writ Petition is filed by the father of a minor girl (11 years 9 months old) who is about 22.5 weeks pregnant being victim of the offences punishable under Sections 376, 376(2) (n) of the Indian Penal Code, 1976 (the Code) and also punishable under Sections 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). The said offences have been committed by the cousin brother of the minor who is about 22 years old.
2. On 23rd December, 2021 this Court (Coram : Prasanna B. Varale & S.M.Modak, JJ.) passed the following order :
"Learned appointed Counsel for the Petitioner invited our attention to certain documents placed on record. Firstly, a copy SSP 1/7 1_wpl_30375_of_2021.doc of an FIR, lodged at Waliv Police Station and secondly, a report at Exhibit B, page 27 of the Petition. The Petitioner is the father of the victim, subjected to sexual assault and on the backdrop of the above referred fact, the prayer clause (a) is made in the Petition, which reads thus :
(a) The Hon'ble Court be pleased to issue Writ in the nature of Mandamus under Article 226 of the Constitution of India and be pleased to allow to terminate the fetus of the Petitioner's daughter to save the life of the victim 'X'.
2. In view of the contentions raised in the petition as well as the above referred fact, we deem it proper to permit to the victim, i.e. the daughter of the Petitioner to appear before the competent Medical Board attached to J.J.Hospital, Mumbai today, i.e. 23rd December, 2021 at 12.30 p.m. The medical board to examine the victim and learned AGP to submit a report in a sealed cover to the Vacation Bench of this Court on Monday 27 th December, 2021. Office to place the matter on 27 th December, 2021 for further orders before the Vacation Bench.
3. We further direct the hospital authorities shall make arrangements for admission of daughter of the Petitioner in the hospital and to provide all requisite and necessary medical assistance to the daughter of the Petitioner till 27 th December, 2021. All arrangements including escorting the victim be made by the Respondent State as per the relevant provisions of the relevant Act.
4. Order be uploaded on server forthwith.
SSP 2/7
1_wpl_30375_of_2021.doc
5. An authenticated copy of the order be supplied to the learned appointed Counsel for the Petitioner as well as to the learned AGP for the State."
3. Pursuant thereto, the medical board/committee comprising of (i) Dr. Ashok R. Anand, Professor and Head, Dept. of OBGY. GGMC, Mumbai, Chairman
(ii) Dr. Vanshree Patil, Professor and Head, Dept. of Psychiatry, GGMC, Mumbai, Member (iii) Dr. Bela Verma, Professor and Head, Dept. of Pediatrics, GGMC, Mumbai, Member (iv) Dr. Shilpa Domkundwar, Professor, Dept. of Radiology, GGMC, Mumbai, Member, have examined the minor and have today submitted their report in Court. The opinion of the medical committee/board is reproduced hereunder :
"After careful clinical examination and psychiatric evaluation and ultrasonography examination, the Committee has come to the opinion that at present only minor anomaly is detected in the foetus of the pregnant minor mother. However, the minor (12 years old) is anguished with the pregnancy. Continuation of pregnancy in minor may lead to pregnancy related complications like anaemia, pregnancy induced hypertension as well as increased operative interference during labour. It is also going to have psychological impact on the pregnant minor with uncertain future.
Pregnant minor and her parents have expressed their desire to terminate the pregnancy and are made aware of the dangers of SSP 3/7 1_wpl_30375_of_2021.doc continuation of pregnancy as well as termination of the pregnancy.
Though at 22 weeks of gestation, termination of pregnancy carries risk to pregnant minor, continuation of pregnancy will have both physical and mental stress to minor mother. Hence, it is advisable to terminate the pregnancy in whichever institute the minor and her parents desire."
4. The Division Bench of this Court (Coram : A.S. Oka, as he then was and M.S.Sonak, JJ.) in their Order dated 3rd April, 2019 passed in Writ Petition Nos.10835 of 2018 and 9748 of 2018, have correctly held that, "in a situation where continuation of pregnancy poses grave injury to physical and mental health of the mother, the pregnant mother could not be forced to continue with the pregnancy merely because it had extended beyond the ceiling of 20 weeks; that would be a serious afront to fundamental rights of such mother to privacy, to exercise reproductive choices, and even to her bodily integrity as also dignity."
5. In the present case as noted above, the Medical Board/Committee has clearly opined that the pregnant minor daughter of the Petitioner is anguished with the pregnancy and continuation of such pregnancy may lead to pregnancy related complications like anaemia, pregnancy induced hypertension as well as complications during labour. It is further opined that the continuation of such an unwanted pregnancy will have physical and mental stress to minor as well as have a psychological SSP 4/7 1_wpl_30375_of_2021.doc impact on the minor.
6. We are conscious of the fact that the pregnancy in the present case appears to be a result of rape and sexual abuse and that an FIR has been filed and the criminal proceedings for the same are pending. Accordingly, appropriate directions will have to be given for preservation of tissue and blood samples of the fetus for carrying out requisite medical tests including DNA finger printing/mapping.
7. In the above circumstances, we pass the following order :
(i) As per opinion dated 27th May, 2021 of the Medical Board/Committee of J.J. Group of Hospitals, Mumbai, the pregnant minor daughter of the Petitioner is permitted to undergo the procedure for medical termination of pregnancy.
(ii) Since the minor daughter of the Petitioner is already admitted in J.J.Hospital, the procedure for medical termination of pregnancy shall be conducted by the concerned Doctors of J.J. Group of Hospitals, Mumbai on 28 th December, 2021 at the time convenient to the Doctors.
(iii) Necessary counselling shall be provided by the concerned doctors to the minor before and after the procedure for medical termination of pregnancy is carried out.
(iv) The Doctors of J.J. Group of Hospitals, Mumbai shall preserve the blood and tissue samples of the fetus for the purpose of carrying out necessary SSP 5/7 1_wpl_30375_of_2021.doc medical tests including DNA and other tests.
(v) The Investigating Officers conducting the investigation of the criminal proceedings shall ensure that the samples are forwarded to the Forensic Science Laboratories and the same are preserved for the purpose of trial of the offence.
(vi) In the event of the child being born alive, the Medical Practitioner conducting the procedure shall ensure that all necessary facilities are made available to such child for saving his/her life.
(vii) In the event of the child being born alive and the Petitioner and his family members are not willing to take responsibility of such child, the State and its agencies will have to assume full responsibility for such child.
(viii) The State is directed to immediately place the FIR, medical report and other papers, including statement of the minor daughter of the Petitioner under Section 164 of the Criminal Procedure Code, 1973 (CRPC), before the District Legal Services Authority (DLSA) for payment of amounts to her under the Government Resolution dated 1st August, 2017 i.e. "The Manodhairya Scheme".
(ix) Upon receipt of such papers, DLSA is directed to immediately process the same for payment of compensation to the minor daughter of the Petitioner at various stages contemplated under the aforesaid Scheme. It shall be ensured by the DLSA that such payments are made at the earliest and without any SSP 6/7 1_wpl_30375_of_2021.doc delay in the matter.
(x) The Petitioner as well as the Learned AGP agree that the Writ Petition may be treated as disposed of. Ordered accordingly.
(xi) All concerned to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.
( ABHAY AHUJA, J. ) ( S.J.KATHAWALLA, J. )
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