X vs The State Of West Bengal And Others
2023 Latest Caselaw 5752 Cal

                       In the High Court at Calcutta
                      Constitutional Writ Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          WPA No. 21085 of 2023

                                     X
                                    Vs.
                     The State of West Bengal and others


     For the petitioner             :     Mr. Protik Dhar,
                                          Mr. Chittapriya Ghosh,
                                          Mr. Kuntal Ray,
                                          Ms. Priyanka Saha

     For the State                  :     Ms. Jhuma Chakraborty,
                                          Ms. Sangeeta Roy

     Hearing concluded on           :     30.08.2023

     Judgment on                    :     31.08.2023



     Sabyasachi Bhattacharyya, J:-

1.

The petitioner is a 13-year old girl, represented by the Officer-in-

Charge/Person-in-Charge, Snehachhaya Child Care Institution. The

petitioner is a minor girl and a student of Class-VI, aged about 13

years. She is a survivor of aggravated penetrative sexual assault and

sexual exploitation, allegedly by a person around 34 years old.

2. The petitioner‟s parents are migrant labourers who used to stay at

Assam for earning livelihood and visit their native place once or twice

a year. The petitioner, thus, had to stay alone at home with her

younger sister. Needless to say, the petitioner comes from an

extremely marginalized section of society, deprived of minimum

financial means, care and protection. Taking advantage of the

situation, a next-door neighbour perpetrated the criminal act as

indicated above on repeated occasions on the petitioner. She could

not disclose anything to anyone due to fear of public stigma and

retribution by the assailant.

3. Subsequently, symptoms of pregnancy became visible and the

petitioner was taken to the Digha State General Hospital on August

12, 2023. Thereafter, pursuant to a complaint lodged by the

Superintendent, Digha SG Hospital, a First Information Report (FIR)

was registered, inter alia under Section 376(2)(n) of the Indian Penal

Code (IPC) and Sections 4 and 6 of the Protection of Children from

Sexual Offences (POCSO) Act, 2012.

4. The survivor/petitioner was taken into safe custody under the Child

Welfare Committee (CWC), Purba Medinipur and was produced before

the Medical Officer, Contai Sub-Divisional Hospital on August 13,

2023, where different tests were conducted on her, confirming the

pregnancy of the petitioner. From a report from the diagnostic centre

concerned, it transpires that as on August 18, 2023, the foetus was

about 24 weeks and 6 days old. Thus, as of today, the foetus is

almost 26 weeks old.

5. Learned Senior Advocate for the petitioner places reliance on Section

3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (in short,

"the MTP Act") as well as the Explanation thereto and Section 5(1) of

the said Act as well.

6. Learned senior counsel also places reliance on a judgment of the

Supreme Court and another judgment of this Court in support of his

contention that in certain circumstances, keeping in view the trauma

and anxiety of the survivor of offences such as the present one and

keeping in view the surrounding circumstances, the Court can pass

orders directing the medical termination of pregnancy even at an

advanced stage after the statutory period of 24 weeks.

7. The State submits a report corroborating the apprehensions of the

petitioner. Learned counsel for the State also submits that due action

under the criminal jurisprudence has already been taken against the

perpetrator of the offence.

8. Since the matter is not adversarial, no affidavits are directed.

9. The judgment of the Supreme Court cited by the petitioner is an

unreported one dated August 21, 2023 in the matter of XYZ Vs. The

State of Gujarat and others.

10. In the said judgment the Supreme Court observed that the whole

object of preferring a writ petition is to exercise the extraordinary

discretion of the High Court in exercise of its constitutional power

which is vested with the constitutional courts and discretion has to

be exercised judiciously and having regard to the facts of the case,

taking into consideration the relevant facts while leaving out

irrelevant considerations and not vice versa. In the said case, the

Supreme Court permitted termination of pregnancy of the appellant,

in a case where an offence under Section 376(2)(n) had been

committed on the victim. The foetus was about 28 weeks old when

the order was passed by the Supreme Court. The Supreme Court

placed reliance on the judgment of Suchita Srivastava Vs. State (UT of

Chandigarh), reported at (2009) 9 SCC 1, where the Supreme Court

observed that the right of a woman to have reproductive choice is an

insegregable part of her personal liberty under Article 21 of the

Constitution. She has a sacrosanct right to her bodily integrity.

11. The Court also considered Sarmishtha Chakrabortty and Another Vs.

Union of India Secretary and Others, reported at (2018) 13 SCC 339,

where the Supreme Court observed that unless the pregnancy was

terminated, the life of the mother and that of the baby to be borne

would be in great danger and permitted termination of the

pregnancy.

12. The Supreme Court further relied on Murugan Nayakkar Vs. Union of

India and Others, in Writ Petition (Civil) No.749 of 2017 where, while

considering the case of a minor petitioner-survivor of alleged rape

and sexual abuse, it was held that it would be appropriate that

termination of pregnancy be allowed in accordance with the opinion

of the Medical Board constituted by an order of Court.

13. Relying next on X Vs. the Principal Secretary, Health and Family

Welfare Department, Government of NCT of Delhi and Others, reported

at AIR 2022 SC 4917, it was observed that a woman can become

pregnant by choice irrespective of her marital status. In case the

pregnancy is wanted, it is equally shared by both the partners.

However, in case of an unwanted or incidental pregnancy, the burden

invariably falls on the pregnant woman, affecting her mental and

physical health.

14. Article 21 of the Constitution, it was observed, recognizes and

protects the right of a woman to undergo termination of pregnancy if

her mental or physical health is at stake. In the context of abortion,

the right of dignity entails recognizing the competence and authority

of every woman to take reproductive decisions, including the decision

to terminate the pregnancy.

15. Apart from that the Supreme Court, in XYZ Vs. the State of Gujarat,

observed that by contrast to pregnancy within the institution of

marriage, in India, pregnancy outside marriage, in most cases is

injurious, particularly after a sexual assault/abuse, and is a cause

for stress and trauma affecting both the physical and mental health

of the pregnant woman, the victim.

16. In such context, medical termination of pregnancy was directed by

the Supreme Court with ancillary direction.

17. In the judgment of this Court in Sri X Vs. The State of West Bengal

and others, similar principles were iterated, including that a

pregnancy resulting from sexual assault could lead to immense

mental trauma for a child. It was observed that Science is not yet

foolproof as to when the embryo becomes a „human‟, but an eleven-

year old child‟s (there, the minor was eleven years old) humanity is

undisputed.

18. A consideration of the said judgments indicates unerringly that the

outer limit of 24 weeks of pregnancy as stipulated in Section 3(2)(b) of

the MTP Act is not sacrosanct. Read in conjunction with the

Explanation to the said sub-section as well as Section 5, there are

situations where a decision can be taken for termination of

pregnancy where the continuance of pregnancy would involve a risk

to the life of a pregnant woman or of grave injury to her physical and

mental health or if there is a substantial risk that the child, if born,

would suffer from serious physical or mental abnormality.

19. Survivors of sexual assault or rape or incest and minors come within

the category of woman mentioned in sub-section (2)(b) of Section 3 as

stipulated in Rule 3B of the 2003 Rules.

20. Section 5(1) provides that the restrictions relating to length of

pregnancy shall not apply to termination of pregnancy where the

medical practitioner concerned is of opinion, formed in good faith,

that the termination of such pregnancy is immediately necessary to

save the life of the pregnant woman.

21. In the present case, the prospects are otherwise bleak for the

survivor, since she suffered from repeated offences within the

contemplation of Sections 4 and 6 of the POCSO Act, which pertains

to aggravated penetrative sexual assault as well as Section 376 (2) (n)

of the Indian Penal Code (IPC).

22. A 13 year old girl, in any event, does not have a mature physical

constitution to bear child properly in most cases. That apart, the

indelible trauma and scar which would be left in the mind of the

survivor in the event she is compelled to continue with the

pregnancy, cannot even be imagined. In the present case, the

petitioner is, after all, only thirteen and is so unfortunate that even

her parents deserted her to her own fate. Hence, it is the duty of

society at large to provide adequate care for the survivor in every

respect.

23. Hence, taking a comprehensive view of the relevant provisions of law

as discussed above, the survivor is not only a minor but a victim of

rape and aggravated penetrative sexual assault and, as such, the

continuance of the pregnancy resulting from such heinous crime

constitutes a grave injury to the mental health as well as physical

constitution of the victim.

24. Thus, the termination of such pregnancy is immediately necessary to

save the life of the pregnant child.

25. In such circumstances, in the present case, as the period of

pregnancy is only about 26 weeks, which is merely two weeks

advanced compared to the outer statutory limit of 24 weeks, for all

practical purposes it would only be justified that the victim girl‟s

pregnancy is directed to be terminated.

26. Accordingly, WPA No. 21085 of 2023 is disposed of by directing the

respondent no.1 to ensure that the petitioner is brought under the

care of the respondent no.9-The Child Welfare Committee, Purba

Medinipur to the SSKM Hospital in Kolkata, within 24 hours from

now, under competent medical supervision. In the meantime, a

Medical Board as contemplated in Section 3(2D) of the MTP Act,

1971, consisting of a gynaecologist, a paediatrician, a radiologist or

sonologist and such other number of members as notified in the

Official Gazette by the State Government, if applicable, shall be

formed.

27. The said Medical Board shall examine the child immediately after her

being brought to the SSKM Hospital for ascertaining the pros and

cons of medical termination of her pregnancy. In the event it is found

that the scale tilts in favour of the termination of such pregnancy and

the survivor/petitioner‟s health will not be jeopardized upon a

medical termination of pregnancy procedure being conducted on her

and that the petitioner is agreeable to such termination, the SSKM

Hospital shall immediately arrange for experts in the field to carry out

such medical termination procedure on the petitioner. It is expected

that the entire exercise shall be concluded within 48 hours from the

arrival of the petitioner to the SSKM Hospital.

28. In the event the process culminates in the birth of a live foetus, the

SSKM Hospital shall give all necessary medical support to the said

child and, subject to the extant law in the field, place the child for

adoption before an authorized agency in due process of law.

29. After the entire procedure is over and the petitioner recovers fully,

she will be discharged from the SSKM and the CWC (Purba

Medinipur) shall take steps under the appropriate statute to place

the petitioner in juvenile care under the relevant statute(s) in the

event the petitioner remains deserted by her parents and family.

30. During the entire process, the CWC (Purba Medinipur) shall also take

pro-active steps to protect and take care of the minor sister of the

petitioner, as contemplated under the relevant statute(s) if she is also

found to be deserted by her parents and family and/or found to be a

child in need of care and protection, if possible, housing her with the

petitioner, since they are apparently their only close family now.

31. Parties shall act on the server copy of this order without insisting

upon prior production of certified copy.

32. There will be no order as to costs.

33. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )