Minor X ( Through Father Kamal ... vs State
2019 Latest Caselaw 3731 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Decided on: August 9, 2019

+                          W.P.(CRL) 2209/2019

        MINOR X ( THROUGH FATHER KAMAL MALIK)..... Petitioner
                  Represented by: Mr.Anwesh Madhukar, Adv. with
                                  Mr.Anshu Bhanot, Adv.

                           versus

        STATE                                                ..... Respondent
                      Represented by:     Mr.Avi Singh, ASC with
                                          Ms.Purnima, Adv. for the State with
                                          WSI Sangeeta, P.S. Nihal Vihar

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl.M.A. 33161/2019 Exemption allowed, subject to all just exceptions. Application stands disposed of.

W.P.(CRL) 2209/2019

1. By this petition, the petitioner who is a minor aged about 16 years and victim of rape seeks medical termination of pregnancy (in short, 'MTP').

2. On the complaint of the petitioner, FIR No.504/2019 under Sections 376 IPC and 6 of Protection of Children from Sexual Offences (POCSO) Act has already been registered at Police Station Nihal Vihar on 1st August, 2019.

3. The petitioner is presently in protective custody at Nirmal Chhaya.

Since the petitioner is a minor and a child in need of care and protection, she was produced before the Child Welfare Committee (CWC) on 2nd August, 2019 and the Committee directed that her MLC be conducted. Her MLC conducted at DDU Hospital on 5th August, 2019 revealed that the petitioner was pregnant and as per the Ultrasound report, she was 23 weeks pregnant. The victim/petitioner and her father both requested the CWC that the MTP of the victim be got done. Thus, a Medical Board was directed to be constituted by the Committee on 2nd August, 2019 and the decision of the Medical Board was directed to be placed before the Committee on 5 th August, 2019.

4. The report of the Medical Board constituted to examine the victim child 'T' notes as under:

"Medical report of child 'T' (name withheld) The child 'T', a 16 year old female appeared before medical board on 5/8/2019 at 10 A.M.. She was accompanied by her father. She was examined physically and mentally in detail and her medical records were reviewed. She was found to be 22 weeks pregnant on examination. On USG she is 23 weeks pregnant. The continuation of pregnancy involve grave risk to her health because of her young age. On mental state examination she was found to be stressed and apprehensive regarding continuation of pregnancy. Further she expressed strong desire to terminate the pregnancy in front of the medical board.

After considering all the above facts the board is of the opinion that it is advisable to terminate the pregnancy for physical and mental well being of the child.

As per MTP Act the termination of pregnancy is allowed till 20 weeks of pregnancy. Since the child has 23 weeks of pregnancy, therefore we need the directions from the honourable court for the termination of pregnancy".

5. Since the pregnancy was beyond 20 weeks, the Child Welfare Committee on 6th August, 2019 opined that direction of the Court for termination of the pregnancy was required and hence the present petition.

6. Section 3 of the Medical Termination of Pregnancy Act, 1971 (in short, MTP Act) provides as under:-

"3. When pregnancies may be terminated by registered medical practitioners.-

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy

may be presumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment. (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a [mentally ill person], shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman".

7. Considering the fact that the pregnancy as on 5th August, 2019 was of 23 weeks and every day is valuable, when this petition came up before this Court on 8th August, 2019, this Court directed the Medical Superintendant, AIIMS to make all necessary arrangements for examination of the victim on 8th August, 2019 itself and report of the examination indicating whether it would be safe to carry out MTP and in case if there is any risk whether the same has been explained to the petitioner and her natural guardian, be submitted to this Court today.

8. Report of the examination of the petitioner at AIIMS by Dr. Vidushi Kulshrestha, Assistant Professor, Department of Obstetrics & Gynaecology, who also discussed the case with Professor Sunesh Kumar, HOD, Deptt. Of Obstetrics & Gynaecology, has been received which notes as under:-

"8.8.2019 5.30 pm

USG reveals single live fetus with mean gestational age of 23 wks + 6 days.

Case discussed with Professor Sunesh Kumar, HOD, Deptt. of

Obstetrics & Gyneocology.

Pt's USG reveals pregnancy of 23 +6 wks period of gestation. Termination at this advanced gestation involves risk to the patient at the time of abortion including risk of bleeding and need for surgery if the routine medical methods fail and patient does not abort with them.

If termination of pregnancy is absolutely necessary for this patient, it may be performed by court's order after explaining increased risk to the family.

Sd/-

Vidhushi The petitioner and her natural guardian i.e. her father have been explained the risk of termination of pregnancy at this advanced gestational age of 23 + 6 wks.

Sd/-

Vidhushi"

9. Considering the age of the victim and at this age, she is not in a position to physically and mentally carry on with the pregnancy and the continuation thereof would be clearly a distress to her health further causing enhanced risk to her life and as the petitioner and her guardian both desire that the pregnancy be terminated, following the decision of the Supreme Court reported as (2015) 8 SCC 721 Chandrakant Jayantilal Suthar & Another vs State of Gujarat, this Court directs that Dr. Vidushi Kulshrestha, Assistant Professor, Department of Obstetrics & Gynaecology, AIIMS and/or any other Assistant/Associate/Additional Professor or Professor of Department who is on duty and is well conversant with the facts of this case shall perform the termination of pregnancy on the victim/petitioner. The

element of risk involved in the termination of pregnancy has been duly informed to the petitioner and her father by this Court. The surgery be performed today itself or latest by tomorrow. The hospital authorities shall also preserve the tissues from the foetus for DNA identification relevant for further investigation.

10. After the discharge of the petitioner from the hospital, she will be taken back to the Children Home, Nirmal Chhaya Complex, where the Superintendent, Nirmal Chhaya Complex will ensure that the petitioner is kept separately and adequate medical and other facilities are provided to her for the recovery including counselling.

11. Copy of this order be communicated to the Medical Superintendent, AIIMS forthwith for necessary action.

12. List the matter for reporting compliance on 13th August, 2019.

13. Order dasti under the signatures of Court Master to the learned counsel for the petitioner as also learned Addl. Standing Counsel for the State.

MUKTA GUPTA, J.

AUGUST 09, 2019/akb