The Single Bench of the Delhi High Court in the case of Minor K Through Brother D vs State & Anr. consisting of Justice Anup Jairam Bhambhani iterated that the clear position of law in relation to medical termination of pregnancy is that it only requires the consent of the ‘woman’. But since the woman, in this case, was a 14-year-old minor, the law required that consent be taken from the ‘guardian’ of the woman within the meaning of section 2(a) of the Medical Termination of Pregnancy Act, 1971.
Facts:
The accused had physical relations with a minor who became pregnant, as per the FIR u/s 366A and 376(2)(n) IPC and u/s 6 of the Protection Of Children from Sexual Offences Act, 2012, but she refused to terminate the pregnancy and instead wanted to marry him. However, she had not been in contact with the accused since his imprisonment. The court ordered the minor to be placed in a children's home for care and protection, per the mandate of the Juvenile Justice Act, as suggested by the Child Welfare Committee. The court also noted that the minor should receive proper antenatal care and assistance for safe delivery. The minor’s father had died, and her mother suffered from mental illness.
Procedural History:
The petitioner appeared before the Medical Board at Ram Manohar Lohia Hospital in Delhi for medical termination of pregnancy, as ordered on May 31, 2023. The Board's report, dated June 1, 2023, was given to the court by the Investigating Officer and stated that the petitioner was in her 26th-27th week of pregnancy. The petitioner was informed of the risks associated with terminating the pregnancy at this stage, including a potential hysterectomy. The petitioner and her brother expressed their wish to carry the pregnancy to term and give the baby up for adoption. Therefore, the Medical Board concluded that it was not necessary or advisable to terminate the pregnancy.
Observations of the Court:
The Bench stated that according to the law, only the consent of the woman is required for medical termination of pregnancy. However, in this case, as the woman is a 14-year-old child, the law required the consent of her guardian, as defined in section 2(a) of the Medical Termination of Pregnancy Act, 1971. The only available guardian was her 22-year-old brother, who expressed that he did not consent to the termination of the pregnancy.
It further observed that the state argued that the accused’s willingness to marry the petitioner was not relevant to the case at hand and therefore there was no need for the accused to be summoned. Additionally, the decision on whether the petitioner should have a medical termination of pregnancy could not be based on the accused's agreement, especially since the petitioner refused to undergo the procedure.
It also noticed that the Child Welfare Committee (CWC) issued a Follow-up Order on May 31, 2023, regarding the petitioner. The CWC recommended that if terminating the pregnancy was not advised, the petitioner should be placed in the Home for Pregnant and Lactating Mothers, specifically the Children Home for Girls-IV, Nirmal Chayya in New Delhi, to ensure proper antenatal care and safe delivery assistance.
Order:
The petition was disposed-off with the direction for the petitioner to be shifted forthwith from ‘Sakhi One-Stop Centre’, IHBAS Hospital Complex, Shahdara, Delhi to Children Home for Girls-IV, Nirmal Chayya, New Delhi in terms of the Follow-up Order dated 31.05.2023 made by the CWC for being put under necessary care and protection, in accordance with the mandate of the Juvenile Justice (Care and Protection of Children) Act 2015, as per their norms and procedure.
Case: Minor K Through Brother D vs State & Anr.
Citation: W.P.(CRL) 1653/2023
Bench: Justice Anup Jairam Bhambhani
For Petitioner: Advocates Mr. Anwesh Madhukar, Advocate (DHCLSC) with Ms. Prachi Nirwan and Mr. Yaseen Siddiqui, Advocates with petitioner in-person along with her brother.
For Respondents: Advocates Mr. Yasir Rauf Ansari, Additional Standing Counsel with Mr. Adeeb-ul-Hasan, Advocate for R-1 with SI Bhawna, P.S.: Gandhi Nagar.
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