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Decided on 25th July, 2016 BHIM SINGH BISHT ..... Petitioner
Through : Mr. Santosh Kumar Suman, Adv. along with petitioner in person.
Through: Ms. Nandita Rao, ASC for the State with Ms. Srilina Roy, Adv. along with ASI D. K.
Tyagi P.S. Sonia Vihar.
JUDGMENT
1. Petitioner is father of Ms. X. He has filed this petition under Article 226 of the Constitution of India praying therein that respondent no.1 be directed to add the name of Rahul and his associates in the FIR. He has also prayed that his daughter be permitted to abort her pregnancy.
2. As regards the first relief is concerned, same has not been pressed since offence under Section 376 IPC has been added in the FIR NO. 39/2014, which was initially registered under Section 363 IPC at Police 2016:DHC:5221 Station Sonia Vihar, on the complaint of petitioner. Accused persons have also been arrested.
3. Second prayer has been vehemently pressed. Affidavit dated 19th July, 2016 of Ms. X has also been placed on record wherein she has supported the prayer of termination of pregnancy. She has stated that she wants to terminate her pregnancy for her safety and also to safeguard her future. She has further deposed that she was forcibly raped by the accused persons. She is present in Court and submits that she is under great mental stress, agony and trauma on account of her repeated rape.
4. Learned Additional Standing Counsel submits that statement of Ms. X has also been recorded by the Metropolitan Magistrate, Delhi wherein she has stated that she was kidnapped and raped and she wants to get her pregnancy terminated. It is further submitted that continuation of pregnancy is injurious to the health of Ms. X.
5. FIR No.39/2014 was registered under Section 363 IPC at Police Station Sonia Vihar on the complaint of petitioner, wherein he has categorically stated that his daughter (Ms. X), aged about 14 years, had gone to school on 30th January, 2014 at 7:30 am and had not returned.
6. During the course of hearing, it is pointed out that date of birth of Ms. X is 4th December, 1999 and at present she is sixteen years of age. It is submitted that in the month of March, 2016 Ms. X returned home on her own. She fell ill in the month of June, 2016, and was taken to a doctor and on ultra sound, it was revealed that she was carrying a pregnancy of twenty two weeks and six days. The ultrasound report of Dr. Rathore S. USG Trauma Centre has been relied upon. It is submitted that Ms. X is physically weak, inasmuch as, is under great mental stress due to the unwanted pregnancy. Being a rape victim, she is under great mental distress and is keen to get the pregnancy terminated, since it‟s continuation is a threat to her health.
7. Section 3 of The Medical Termination of Pregnancy Act, 1971 („the Act‟ for short), reads as under:-
8. A perusal of sub-section 2 of Section 3 of the Act shows that a pregnancy can be terminated by a registered medical practitioner where the length of the pregnancy does not exceed twelve weeks as the continuation of the pregnancy may involve a risk to the life of the woman and a grave injury to her physical and mental health, inasmuch as, there may be a substantial risk to the child, if born, suffering from such physical or mental abnormalities to the extent of him being handicapped in more than one ways. Explanation 1 of sub-section 2 of Section 3 further envisages that, where pregnancy is caused by rape of the pregnant woman, it would raise the presumption that such a pregnancy will constitute a grave injury to the mental health of such pregnant woman. Section 3(2)(b) of the Act prescribes the outer limit of twenty weeks for termination of the pregnancy, if in the opinion of two registered medical practitioners, the continuance of the pregnancy would involve a risk to the life of the pregnant woman or cause grave injury to her physical or mental health.
9. However, Section 5 (1) of the Act is an exception to the above rule, and reads as under:-
10. A perusal of Section 5(1) makes it clear that the pregnancy beyond twenty weeks can be terminated, if in the opinion of two registered medical practitioners, termination of such a pregnancy is immediately necessary to save the life of the pregnant woman. In such an eventuality, the length of pregnancy, as envisaged in Section 3 of the Act, would not come in the way of termination of the pregnancy.
11. In somewhat similar circumstances, Gujarat High Court in Bhavikaben Vs. State of Gujarat & 3 Ors., 2016 LawSuit(Guj) 836, relying upon the doctor‟s opinion, permitted the termination of pregnancy by considering the mental and physical status of the rape victim. Pregnancy in the said case was of twenty four weeks.
12. A learned Single Judge of this Court, vide order dated 6th December, 2013 passed in W.P. (Crl.) No.2008/2013 titled as Ms. X Vs. Govt. of NCT of Delhi & Anr., has considered the issue of termination of pregnancy of a rape victim and has held as under:-
13. In Chandrakant Jayantilal Suthar & Anr. vs. State of Gujarat, (2015)
8 Supreme Court Cases 721, a rape victim aged about 14 years had approached the Court for termination of pregnancy and Supreme Court ordered as under:-
14. In this case, vide order dated 19th July, 2016, the Medical Superintendent of Deen Dayal Upadhyay Hospital was requested to form a medical board of two senior most Gynaecologists and one Clinical Psychologist to examine the prosecutrix and submit their opinion on (a) whether it is medically possible/safe to terminate the pregnancy and (b) whether, given the age and health of the minor girl, there is any danger to her life, if the pregnancy is not immediately terminated. Report has been received. First of all, no Clinical Psychologist was included in the medical board. Secondly, the report is also not clear and conclusive. It has been reported that it is medically possible to terminate the pregnancy but not safe to terminate the same. It is further stated that Ms. X, being a minor girl, will be treated as a high risk pregnancy with increased danger of complications during pregnancy and delivery.
15. In this case, each day matters in view of the length of pregnancy. There is urgency in the matter. Accordingly, instead of constituting another medical board and seek its opinion before hand, it would be appropriate, if the decision is left on the experts in the field to take a decision whether continuation of the pregnancy is a threat to the life of Ms. X and to proceed with termination of such pregnancy if it is found that it is necessary in view of the threat to the life of prosecutrix more particularly, when in terms of the afore-stated provisions of the Act, the decision in this regard has to be taken by the doctors, whose opinion is paramount in this regard.
16. Accordingly, the Medical Superintendent of All India Institute of Medical Sciences, New Delhi is directed to constitute a medical board comprising of three senior Gynaecologists and one Clinical Psychologist to examine Ms. X and, after interaction with her, to form an opinion as to whether termination of pregnancy is necessary in view of the threat to life of Ms. X. If the board is of the view that termination of pregnancy is necessary, the doctor concern shall take action for termination of pregnancy, without any further permission from this Court. If there is no unanimity amongst the doctors, the majority view of the doctors shall prevail.
17. It is further ordered that in case of abortion, the hospital shall take necessary tissue from the foetus for DNA identification.
18. Investigating Officer petitioner and Ms. X shall appear before the Medical Superintendent, All India Institute of Medical Sciences on 27th July, 2016 at 9:00 am. All arrangements for admission of Ms. X as indoor patient, if necessary, be made for the tests and subsequent treatment including the termination of pregnancy, depending upon the report of the doctors.
19. A copy of this order be given to learned Additional Standing Counsel under the signatures of Court Master to serve the same on the Medical Superintendent, through the Investigation Officer, for compliance.
20. Writ petition is disposed of in the above terms. A.K. PATHAK, J. JULY 25, 2016 dk