X (Assumed Name Of The ... vs The State (N.C.T. Of Delhi) & Ors.
2013 Latest Caselaw 1437 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     DECIDED ON : 22nd MARCH, 2013

+                          W.P.(CRL.) 449/2013

       X (Assumed name of the prosecutrix)           ..... Petitioner

                           Through :    Ms.Kiran Singh, Advocate.


                           versus

       THE STATE (N.C.T. OF DELHI) & ORS. ..... Respondents

                           Through :    Mr.Pawan Sharma, Standing
                                        Counsel (Crl.).


        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The petitioner- „X‟ has filed the present writ petition under

Article 226 of the Constitution of India read with Section 482 of the Code

of Criminal Procedure seeking directions to the respondents for

terminating her pregnancy and to preserve the fetus for DNA test.

2. Notice was issued to the respondents. Status report has been

filed and it is taken on record. I have made enquiries from the petitioner in

the presence of her counsel Ms.Kiran Singh, Advocate in the chamber.

She has expressed her willingness to get her pregnancy terminated. She

states that she is unable to carry the pregnancy to full term due to social

stigma as she is victim of rape. I have also made enquiries from Kapil

who in chamber separately. He had no objection to the petitioner getting

her pregnancy terminated. He admitted that he was already married and

has children. I also had conversation with Arti, petitioner‟s friend

separately. She volunteered to take care of the petitioner during her

termination of pregnancy.

3. „X‟ lodged report with the police on 31.01.2013 and case

vide FIR No.22/2013 under Section 376/506 IPC was registered against

Kapil. She was medically examined at AIIMS on 31.01.2013. It was

found that she was having pregnancy of six weeks duration. Her statement

under Section 164 Cr.P.C. was recorded. Kapil was arrested and is in

custody.

4. Petitioner is not legally married to Kapil and he is already

married and has children. Allegedly, he established physical relations with

„X‟ on false promise to marry her. Kapil did not inform „X‟ his marital

status before seeking her consent for physical relationship. She became

pregnant as a result of the alleged rape. During her medical examination,

it was found that she was pregnant for about six weeks at that point of

time. She is living alone with her friend in Delhi and her parents are not

aware of her association with Kapil. She does not want to bear a child as

she was cheated by Kapil and intends to punish him.

5. State has no objection if „X‟ gets her pregnancy terminated.

Kapil has also not objected to it. „X‟ is major aged about 22 years. She has

consultation with her counsel Ms.Kiran Singh. She understands the

consequence of her act. On 21.03.2013, she was medically examined at

AIIMS and as per doctors‟ opinion, pregnancy can be terminated with

minimal known risks. The victim has expressed her willingness to

terminate the pregnancy. The Court must respect her decision. In „Suchita

Srivastava and anr. Vs. Chandigarh Administration‟, (2009) 9 SCC 1, the

Supreme Court held :

"37. As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evidence that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights."

6. A plain reading of provision in the Medical Termination of

Pregnancy Act, 1971 clearly indicates that consent is an essential

condition for performing an abortion on a woman who has attained the

age of majority and does not suffer any „mental illness‟. The Explanations

to Section 3 have contemplated the termination of pregnancy when the

same is the result of a rape or a failure of birth control methods since both

of these eventualities have been equated with a "grave injury to the mental

health" of a woman. In such circumstances, consent of the pregnant

woman is an essential requirement for proceeding with the termination of

the pregnancy under Section 3 of the Act. Any woman has the option to

get the pregnancy terminated by a registered medical practitioner, if it

does not exceed 12 weeks. If the duration of the pregnancy exceeds 12

weeks but does not exceed 20 weeks such a termination can be done by

not less than two registered medical practitioners, who will give the

opinion whether the continuance of the pregnancy would involve a risk to

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

mental health.

7. To carry a child in her womb by a woman as a result of

conception through an act of rape is extremely traumatic, humiliating and

psychologically devastating. „X‟ hails from the poor strata of the society

and is likely to face innumerable mental, physical, social and economical

problems in future. There are no reasons to prevent her not to exercise her

option voluntarily in her interest.

8. For the forgoing reasons, the petition is allowed with the

direction to the SHO of the concerned police station or any other

responsible police officer with lady police officer to accompany the

complainant „X‟ and produce her before Medical Superintendent, AIIMS

within three days to get her pregnancy terminated where Board of two

medical practitioners would be constituted by the Medical Superintendent

on that day itself. The Medical Board would take the decision

immediately for termination of the pregnancy and it will be terminated in

accordance with the provision of Section 3 of the Act. They shall preserve

the fetus and DNA test will be conducted thereupon and its report shall be

produced before the Trial Court at the earliest.

9. The petition is allowed in the above terms. Arti, X‟s friend

shall be permitted to take her care. Needless to say, „X‟ will be provided

proper medicine, diet and nutritious food as may be necessary for her

health. Copy of the order be sent to the Medical Superintendent, AIIMS.

10. Copy of the order be given dasti to the Investigating Officer

under the signatures of the Court Master.

(S.P.GARG) JUDGE

MARCH 22, 2013 tr