Mohd. Abass Sheikh vs Union Territory Of J&K And Others
2021 Latest Caselaw 33 j&K

                                                           Serial No. 114




               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU



                                               WP(C) No. 110/2021 (O&M)
                                               (Through Video Conferencing)

Mohd. Abass Sheikh                                              ....Petitioner(s)

                                Through: Mr. Narinder Kumar Attri, Advocate
                          v/s

Union Territory of J&K and others                             ....Respondent(s)

                                Through: Mr. Raman Sharma, AAG

Coram:

       HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE

                                        ORDER

1. In the instant petition, the petitioner has prayed for the following

reliefs:

"To allow the petitioner to get the pregnancy of the minor daughter, victim of rape in FIR No. 7/2021 registered initially under section 363 IPC to which offence under Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (POSCO Act) along with 376 IPC are added under investigation with Police Station Pacca Danga Jammu terminated in accordance with of Medical Termination of pregnancy Act 1971.

ii) to allow the petitioner to accord the consent for the termination of the pregnancy of the minor victim in accordance with Medical Termination of Pregnancy Act 1971."

2. The briefly stated, the facts of the case are that the petitioner, who

claims to be father of the minor girl (name changed as Rozina) whose date of

birth, as per school certificate where she is stated to be reading in 10 th class is

17.07.2006, was kidnapped by the accused, named Vikas Bhagwan S/o

Ghulam Rasool R/o Kishtwar and a written complaint was filed by the

petitioner with the Police Post, Panjthirthi, on the basis whereof, FIR No.

7/2021 stands registered in the Police Station, Pacca Danga. Respondent No.3-

Incharge Police Post, Panjthirthi, Jammu was appointed as Investigating

Officer in the case. Initially, FIR was registered under Section 363 and later

on Medical examination, prima facie established a rape, section 376 IPC and

Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012

(For short, POSCO Act) were also added. The alleged act of rape of the minor,

as stated, resulted in pregnancy, therefore, the petitioner after noticing the

causes of serious threat to the mental, physical health of her minor daughter,

had approached the respondents for ensuring termination of pregnancy of her

minor daughter permissible in terms of the Medical Termination Of Pregnancy

Act, 1971 (for short the Act of 1971), but the respondents having failed to

adhere to the statutory duty has formed a ground for the petitioner to file the

instant petition before this Court.

3. While hearing learned counsel for the petitioner and keeping in view

the nature of the claim made, this Court thought it proper to seek assistance of

Mr. Raman Sharma, learned AAG, who with the strength of his knowledge and

experience, adopted the fair approach and submitted that in an identical matter,

involving a somewhat similar facts and the reliefs, the Co-ordinate Bench of

this Court had already taken a view and issued directions for adhere to the

provisions of POSCO Act. He made reference to the decision rendered in

WP(C) No. 1031/2020 titled as Miss Z v. UT of J&K and others.

4. A perusal of the aforesaid final order/judgment supports the claim of

the petitioner for grant of the relief.

5. Learned counsel for the petitioner has made reference to Sub Section

2 of Section 3 of the Act of 1971, which being relevant for the purpose is

reproduced as under:

(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 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 I.-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.

6. While referring to Explanation (1) appended to Sub Section 2 of

Section 3(1) of the Act of 1971, learned counsel for the petitioner would

contend that alleged pregnancy of the victim having been caused by the alleged

rape, constitutes a grave injury to the mental and physical health of the victim

and that the rider and restraint as provided in Sub Section 2(i) of the Section 3

of the Act of 1971 needs no relaxation, therefore, the authorities have to

immediately proceed in the matter and have the needful done for ensuring that

the family and the minor to some extent comes out of the trauma and mental

injury.

7. Considering the contention urged by the learned counsel for the

petitioner and the fair and frank stand taken by Mr. Raman Sharma, learned

AAG appearing for the respondents, I feel it necessary to dispose of this

petition as pendency of the same will not served any purpose and will not meet

the ends of justice, in the following manner:

a) The respondents shall have the victim medically examined afresh by a medical Board to be constituted by the Principal, Government Medical College and Hospital (GMC&H), Jammu, comprising of Subject Specialist including a Psychiatrist during the course of this week which Board shall meet on Friday i.e. 05.02.2021 and medially examined the victim and furnish the report to the Principal, GMC&H, Jammu.

b) The Board shall in the event, on examination of the victim, found her pregnant, recommend the termination of her pregnancy.

c) The Principal, GMC&H, Jammu shall, on receipt of the report, immediately ensure termination of the pregnancy of the victim but necessary measures be also taken for preserving of DNA samples of the foetus and for the said purpose, the official respondents shall also be associated in the process of completion of the directions.

d) The Principal, GMC&H shall ensure providing of appropriate free medical facilities in the event termination of the pregnancy is undertaken.

e) The Member Secretary, State Legal Services Authority, J&K shall on approach of the petitioner, forthwith process the case for payment of compensation.

8. Copy of this order be furnished to learned counsels appearing for the

parties under the seal and signatures of Bench secretary today.

9. Registrar Judicial shall also serve a copy of this order on the

respondents as also on the Principal, GMC&H, Jammu by mode available in

the Registry.

(ALI MOHAMMAD MAGREY) JUDGE Jammu 01.02.2021 Paramjeet Whether the order is speaking: Yes/No.

                                            Whether the order is reportable:      Yes/No




PARAMJEET SINGH
2021.02.02 11:21
I agree to specified
portions of this document