Anita Shantaram Zore vs The State Of Maharashtra And Ors
2021 Latest Caselaw 5094 Bom

(916)-WP-1267-21.doc.

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION

                WRIT PETITION NO.1267 OF 2021

ABC                                           ..Petitioner

       Versus

1. State of Maharashtra
   Through Rajapur Police Station,
   Ratnagiri

2. Ratnagiri District Hospital
   Through Civil Surgeon
   Having address at Jawahar Road,
   Ratnagiri, Maharashtra-415612              ..Respondents

Mr. Karansingh B. Rajput, Advocate for the Petitioner.
Mr. J. P. Yagnik, APP for the Respondent - State.

                                CORAM : S. S. SHINDE &
                                        MANISH PITALE, JJ.

                       RESERVED ON : 19.03.2021
                    PRONOUNCED ON : 22.03.2021

JUDGMENT (Per Manish Pitale, J.)

1. Rule. Rule made returnable forthwith. Heard fnalll.

2. At the outset, it is required to be noted that since the

allegations leveled bl the petitioner are in respect of the

alleged sexual assault, the identitl of the petitioner needs to be

concealed, therefore, the petitioner is referred to as "ABC". The

Registrl is directed to maintain the record accordingll.

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3. Bl this petition, the petitioner has approached this

Court invoking the extraordinarl writ jurisdiction under Article

226 of the Constitution of India for a direction to permit

termination of pregnancl of her minor daughter aged about

seventeen lears and few months. The said daughter of the

petitioner was victim of alleged rape resulting in to the

pregnencl which is now of more than twentl weeks duration

and therefore petitioner has been compelled to knock the doors

of this Court.

4. It is stated in the petition that the petitioner was

constrained to cause registration of an FIR on 02.03.2021

against accused person for ofences under section 376(3) of the

Indian Penal Code (IPC) and sections 4, 8 and 12 of the

Protection of Children from Sexual Ofences Act, 2012 ("POCSO

Act"), for the sexual assault and rape sufered bl her minor

daughter. As per the FIR, the daughter of the petitioner was

aged about seventeen lears and two months old when the

incident of rape took place, resulting in pregnancl. According

to the petitioner, she and her husband discovered about

pregnancl of her daughter when she missed her menstrual

clcles for about four months and she was required to be taken

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to the doctor. Since the daughter of the petitioner is mentalll

challenged, the fact about the said rape and consequent

pregnancl could not be discovered earlier. After she was taken

to the doctor and the pregnancl was revealed, the daughter of

the petitioner divulged how she was repeatedll sexualll

assaulted and raped bl the accused, resulting in the pregnancl.

5. As a consequence, aforesaid FIR dated 02.03.2021

stood registered against the accused. Since the pregnancl of

the daughter of the petitioner exceeded twentl weeks, she had

to approach this Court. Copl of the FIR along with sonographl

report and certifcate of the doctor stating that the daughter of

the petitioner as on 06.03.2021 was pregnant of 20.6 weeks

have been annexed with the petition.

6. When this petition was listed before this Court on

10.03.2021, notices were issued to the respondents and

respondent No.2 i.e. the Civil Surgeon of Ratnagiri District

Hospital was directed to constitute a Medical Board/ Committee

bl invoking section 3 of the Medical Termination of Pregnancl

Act, 1971 (hereinafter referred to as "the Act of 1971"). The

said committee was directed to medicalll examine the

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daughter of the petitioner and send the report to the learned

APP appearing for the respondents, so that it would be made

available before this Court for perusal.

7. When this writ petition was taken up for hearing,

learned APP tendered across the Bar a copl of the report in

sealed envelope of the committee, same is taken on record. In

said report, it is recommended bl the committee that medical

termination of pregnancl could be undertaken on humanitarian

grounds as the pregnancl was the result of alleged sexual

assault of the victim who is less than eighteen lears of age and

sufers from mild mental disabilitl.

8. Mr. Karansingh B. Rajput, learned counsel appearing

for the petitioner submitted that in the facts and circumstances

of the present case, this Court ought to exercise extraordinarl

writ jurisdiction to allow the pralers made in the writ petition.

Learned counsel has placed reliance on the provisions of

sections 3, 4 and 5 of the Act of 1971 to submit that in view of

the aforesaid report of the committee constituted in terms of

order dated 10.03.2021 passed bl this Court, present writ

petition deserves to be allowed and a direction needs to be

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given to the respondent No.2 to carrl out medical termination

of pregnancl of the daughter of the petitioner. Additionalll,

learned counsel submits that since the daughter of the

petitioner is victim of rape resulting in the pregnancl, the

respondent No.1 ought to be directed to collect the tissue and

blood sample of the fetus for conducting DNA tests that would

be part of evidence during prosecution of the accused in terms

of the aforesaid FIR registered on 02.03.2021. In this regard,

learned counsel for the petitioner has placed reliance on the

judgments of this Court in the case of 1) Rubina Kasam

Phansopkar Vs. State of Maharashtra and others, 2020

SCC Online Bom. 765, 2) "ABC" through her Guardian Vs.

State of Maharashtra and another, 2018 (4) Mh.L.J. 374,

3) Pramod A. Solanke Vs. Dean of B. J. Govt. Medical

College & Sasoon Hospital, Pune, 2020 SCC Online Bom.

639 and 4) Z Vs. State of Bihar and others, (2018) 11 SCC

572 as also on 5) Suchita Srivastava and another Vs.

Chandigarh Administration, (2009) 9 SCC 1.

9. Learned counsel for the petitioner further submitted

that daughter of the petitioner deserved to be compensated in

terms of the victim compensation scheme framed bl the

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Respondent - State under section 357A of the Criminal

Procedure Code. Learned counsel for the petitioner invited

attention of this Court to "The Manodhairla Scheme" framed bl

the Respondent- State as per Government Resolution dated

01.08.2017, for palment of compensation to victims like the

daughter of the petitioner herein. On this basis, it was

submitted that maximum amount of compensation palable

under the said scheme ought to be directed to be paid to the

daughter of the petitioner.

10. Mr. J. P. Yagnik, learned APP appearing on behalf of

the respondent - State submitted that the committee

constituted in terms of the order passed bl this Court had

recommended medical termination of pregnancl of the

daughter of the petitioner. He further submitted that although

the pregnancl has crossed the duration of twentl weeks, this

Court mal pass orders in terms of the law brought to the notice

of this Court as per the judgments relied upon bl the learned

counsel appearing for the petitioner.

11. Before considering the facts of the present case and

the pralers made in the present writ petition, it would be

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appropriate to refer to the relevant provisions of the Act of

1971 and the law laid down in that context. Sections, 3, 4 and

5 of the Act of 1971 provide for contingencies in which

pregnancies mal be terminated bl registered medical

practitioners. Section 3(2) provides that a pregnancl mal be

terminated bl a registered medical practitioner where the

length of the pregnancl does not exceed twelve weeks or

where the length of the pregnancl exceeds twelve weeks but

does not exceed twentl weeks, if not less than two registered

medical practitioners are of the opinion formed in good faith

that continuance of the pregnancl involves a risk to the life of

the pregnant woman or it mal cause grave injurl to her

phlsical or mental health. Explanation-1 to the aforesaid

provision is of signifcance in the present case, because it

specifcalll states that where anl pregnancl is alleged to have

been caused bl rape, the anguish caused bl such pregnancl

shall be presumed to constitute a grave injurl to the mental

health of the pregnant woman.

12. It is clear from the said provision that termination of

pregnancl can be carried out, if the contingencies mentioned in

section 3 of the Act of 1971 are satisfed. But, since there is a

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limit of the length of pregnancl specifed upto twentl weeks,

termination of pregnancl whose length is belond twentl weeks

needs to be considered in the facts and circumstances in the

present case. In the case of the Rubina Kasam Phansopkar

(supra), this Court took note of the position of law that in

certain cases Superior Courts could direct medical termination

of pregnancl whose length is belond twentl weeks. In order to

do so, the Court is required to call for a report from a

committee dull constituted to examine the question as to

whether a pregnancl belond twentl weeks could be permitted

to be terminated. In the said case, after having recognized

such settled position of law that a Constitutional Court while

exercising writ jurisdiction could grant such permission, after

calling for report from Medical Board comprising of suitabll

qualifed doctors, on the facts of the said case this Court

declined to grant permission for termination of the pregnancl.

Nonetheless, the power available with this Court to grant such

permission was recognized.

13. In the case of "ABC" through her Guardian

(supra), in a similar situation, where the victim person was a

minor girl and victim of rape, this Court called for a report from

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a committee of doctors of the Government Medical College and

upon recommendation of such committee for medical

termination of pregnancl passed an order allowing the writ

petition. Similarll, in the case of Pramod A Solanke (supra),

this Court after calling for report of a Medical Board permitted

termination of pregnancl which was twentl four weeks and

three dals of length. In the said case also the pregnant girl

was minor and a victim of rape. In the case of Sangita Sandip

Dahilkar (supra) also, this Court granted permission for

medical termination of pregnancl the length of which was

belond twentl weeks after calling for report from a committee

which recommended such termination of pregnancl.

14. Thus, it is settled position of law that in certain

circumstances, this Court being a Constitutional Court has the

power under writ jurisdiction to direct termination of pregnancl,

the length of which being belond twentl weeks. The

requirement of law is that a report needs to be called from a

committee of qualifed medical professionals of a Government

facilitl as to the mental and phlsical health of the pregnant

girl/woman and recommendation on the question of termination

of such pregnancl, length of which is belond twentl weeks. It

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is for this reason that while issuing notice on 10.03.2021, we

had directed the respondent No.2 - Civil Surgeon, Ratnagiri

District Hospital to constitute a committee to medicalll

examine the victim i.e. minor daughter of the petitioner herein

and to send a report to this Court. In pursuance of the said

order, a report dated 12.03.2021 has been placed before this

Court. The members of the Medical Board/Committee who

reviewed the case of daughter of the petitioner in the present

case were as followed :-

Sr. Name Designation Specialization Signature No.

1         Dr. Sanghamitra M.       Civil      M.S.ENT            Sd/-
          Gawade                 Surgeon
                                 Ratnagiri
2         Dr. Vinod Sangvikar   Gynecologist M.B.B.S.,           Sd/-
                                             D.G.O.
3         Dr. Nitinkumar Shah   Psychiatrist M.B.B.S.,           Sd/-
                                             D.P.M.
4         Dr. Shubhangi         Gynecologist M.B.B.S.,           Sd/-
          Bedekar                            D.G.O.D.N.B.
                                             (Obgy)
5         Dr. Vijay Surygandh   Paediatrcian M.B.B.S., M.D.      Sd/-

15. It is stated in the said report submitted bl the

aforesaid Medical Board that the daughter of the petitioner is a

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minor, who is pregnant, as a consequence of rape and that on

IQ testing, she has been found to be having mild intellectual

disabilitl. After recording the investigations conducted on the

daughter of the petitioner, it is recorded that she is phlsicalll

ft for the termination of the pregnancl and the

recommendation of the Medical Board reads as follows :-

"Pregnancl is caused bl sexual assault, her age is less than 18 lears. She has mild intellectual disabilitl. On humanitarian ground MTP is recommended."

16. Therefore, in the facts of the present case, it

becomes clear that the Medical Board/Committee constituted

on the order of this Court has examined the daughter of the

petitioner and recommended medical termination of pregnancl,

although the length of such pregnancl is belond twentl weeks.

It is evident from the material on record i.e. FIR dated

02.03.2021, the statements made in the present writ petition

as also contents of the aforesaid report dated 12.03.2021

submitted bl the Medical Board that the daughter of the

petitioner is a minor who is pregnant due to alleged sexual

assault and rape and she is found to be sufering a mild

intellectual disabilitl. Explanation-1 to section 3(2) of the Act of

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1971 provides that it is to be presumed that pregnancl alleged

to have been caused bl rape and the anguish caused bl such

rape constitutes a grave injurl to mental health of such

girl/woman. We are of the opinion that therefore, direction can

be issued for medical termination of pregnancl of the daughter

of the petitioner, although length of the pregnancl is belond

twentl weeks, because continuance of such pregnancl would

result in grave injurl to the mental health of the daughter of

the petitioner.

17. At the same time, since the pregnancl of the

daughter of the petitioner is on account of alleged rape sufered

bl her and investigation and further proceedings are being

undertaken, it is necessarl to give consequential directions

also. The FIR bearing C.R. No.31 of 21 dated 02.03.2021

registered at Rajapur Police Station, District Ratnagiri, records

the statement of the petitioner that her daughter was

repeatedll sexualll assaulted and raped bl the accused, as a

result of which ofences under section 376(3) of the IPC and

sections 4, 8 and 12 of the POCSO Act were registered. It is

necessarl that tissue and blood samples of the fetus upon

termination of pregnancl need to be preserved for DNA tests

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and other such tests that mal have to be carried out to be

utilized during trial of the accused in pursuance of registration

of the aforesaid FIR. We propose to grant appropriate direction

in that regard.

18. Apart from this, the learned counsel for the

petitioner has correctll invited our attention to Government

Resolution dated 01.08.2017, wherebl "The Manodhairla

Scheme" has been framed bl the respondent - State. This is in

tune with the victim compensation scheme contemplated under

section 357A of the Criminal Procedure Code. A perusal of the

said Government Resolution shows that in cases where victims

of rape are mentalll challenged and thel are minors,

compensation of upto Rs.10,00,000/- is palable from the

amount available with the District Legal Services Authoritl

("DLSA"). In the said Government Resolution amounts are

palable immediatell and at various stages to such victim.

Therefore, it would be appropriate that the respondent takes up

case of the daughter of the petitioner immediatell in terms of

the said scheme applicable to children of sexual assault as per

the POCSO Act, which includes the victims who are mentalll

challenged. The police authorities need to place all requisite

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papers as per the said scheme before the DLSA and consequent

action needs to be immediatell taken.

19. In view of the above, the writ petition is allowed in

following terms :-

I) The respondent No.2 is directed to medicalll

terminate the pregnancl of the daughter of the

petitioner forthwith at the Civil Hospital,

Ratnagiri District,.

II) The respondent No.2 is directed to collect tissue

and blood samples of the fetus for conducting

DNA and other tests.

III) The Investigating Ofcer conducting

investigation in the aforesaid FIR shall ensure

that the aforesaid tissue and blood samples are

forwarded to the concerned Forensic Laboratorl

for DNA tests and other relevant medical tests.

The said samples and report shall be preserved

for the purpose of trial.

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IV) The respondent No.1 is directed to immediatell

place the FIR, medical report and other papers,

including statement of the daughter of the

petitioner under section 164 of the Criminal

Procedure Code, before the DLSA for palment of

amounts to her under the Government

Resolution dated 01.08.2017 i.e. "The

Manodhairla Scheme".

V) Upon receipt of such papers, DLSA is directed to

immediatell process the said papers for

palment of compensation to the daughter of the

petitioner at various stages contemplated under

the aforesaid scheme. It shall be ensured that

such palments are made at the earliest and

without anl delal in the matter.

20. Rule is made absolute in the above terms.

Balaji G.

Panchal [MANISH PITALE, J] [S. S. SHINDE, J] Digitally signed by Balaji G. Panchal Date: 2021.03.22 11:25:39 +0530

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