The Division Bench of the Delhi High Court in the case of K vs The Principal Secretary Health and Family Welfare Department Govt of NCT of Delhi & Ors. consisting of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, holding the welfare of the minor girl paramount, ordered the termination of the pregnancy despite the hospital’s refusal due to no police report.
Facts
This Writ Petition was filed by a mother praying for the immediate termination of the pregnancy of her unmarried minor daughter through registered medical practitioners at any Government Hospital, as permitted u/s 3(2) (a) (i) r/w Section 3(3), 3(4) & Section 4 of the Medical Termination of Pregnancy Act, 1971 (‘the MTP Act’) without reporting the case to the local police as mandated u/s 19 (1) of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’) on account of the fact that the said pregnancy was the result of a “consensua1 and close relationship”. The Petitioner also prayed for an Order directing Respondent No. 2 to amend Section 3 of the MTP Act so as to allow married/unmarried minor girls between 16 to 18 years to terminate their unwanted pregnancy arising from a consensual relationship without requiring to mandatorily report the same as it restricts and violates their fundamental right to privacy, personal autonomy, dignity and reproductive choice which are an inseparable part of the right to life under Article 21 of the Constitution of India.
Procedural History
All government and private hospitals had refused to terminate the pregnancy of the daughter of the Petitioner without reporting the case to the local police. Hence this Writ Petition.
Observations of the Court
The Bench, after perusing Section 3 of the MTP Act and Section 19 of the POCSO Act, opined that as per the mandate of law, the medical practitioners are obliged to file a report regarding the pregnancy of a minor girl to the local police or to the Special Juvenile Police Unit.
This Court had issued notice on 16.09.2022 and requested Ms. Aishwarya Bhati, learned ASG, to appear in this matter and assist it. Accordingly, the case was adjourned to today.
Ms. Bhati submitted that both the Acts must be read harmoniously, and the welfare of the minor girl is paramount. It concurred with her submission and opined that instead of entering into the debate regarding harmonizing between the MTP Act and the POCSO Act, at this juncture, it was necessary that the pregnancy of the Petitioner’s daughter was terminated immediately so as to prevent the Petitioner’s daughter, who was a minor, from undergoing the trauma of going ahead with an unwanted pregnancy which would inevitably subject her to grave physical and mental injury.
Order
The Union of India was directed to ensure that the pregnancy of the Petitioner’s daughter was terminated at AIIMS, Delhi on the Government’s expenses. The Respondents were free to proceed ahead as per law, but any report registered by the police was directed to be kept in a sealed cover subject to the outcome of this Petition. The Bench opined that the termination of the pregnancy of the unmarried minor daughter of the Petitioner needed to be conducted at the earliest to not render this petition infructuous. The Respondents were directed to file a reply before the next date of hearing, i.e., 18.01.2023.
Case: K vs The Principal Secretary Health and Family Welfare Department Govt of NCT of Delhi & Ors.
Citation: W.P.(C) 13479/2022 & CM APPLs. 40980/2022 & 41610/2022
Bench: Chief Justice Satish Chandra Sharma, Justice Subramonium Prasad
Decided on: 20th September 2022
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