Karnataka High Court
Xxxx vs The State Of Karnataka on 13 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 3640 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 3640 OF 2024 (GM-RES)
BETWEEN:
XXXX
D/O XXXX
AGED ABOUT 21 YEARS
R/AT YADADORE VILLAGE
GARGESHWARI, KASABA HOBLI
T.NARASIPURA TALUK
MYSURU - 571 110.
...PETITIONER
(BY SRI. NAVEEN KUMAR M., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY SECRETARY
Digitally signed by
PADMAVATHI B K DEPARTMENT OF HEALTH AND FAMILY WELFARE
Location: HIGH NO. 105, 1ST FLOOR
COURT OF VIKAS SOUDHA
KARNATAKA
BENGALURU - 560 001.
2. THE DISTRICT HEALTH SURGEON/OFFICER
CHELUVAMBA HOSPITAL
MYSURU - 570 001.
...RESPONDENTS
(BY SMT. NAVYA SHEKHAR, AGA)
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WP No. 3640 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD 03.02.2024 AT ANNEXURE-E MADE BY
THE R-2 FOR DENIAL OF TERMINATED OF PREGNANCY WHO IS
PRESENTLY PREGNANT WITH GESTATIONAL AGE
CORRESPONDING TO 24 WEEKS.
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner - victim is before this Court seeking the
following prayer:
a. "To issue a writ of certiorari quashing the order dated
03.02.2024 at Annexure - E made by the 2nd
Respondent for denial of termination of pregnancy
who is presently pregnant with gestational age
corresponding to 24 weeks.
b. To issue a writ in the nature of Mandamus directing
the Respondent No.2 to Medically Terminate the
Pregnancy of Petitioner / Victim.
c. To issue any other order or direction which this
Hon'ble Court deems fit in the facts and
circumstances of the case and in the interest of
Justice and equity."
2. Heard Sri Naveen Kumar M., learned counsel for the
petitioner and Smt. Navya Shekar, learned Additional
Government Advocate for the respondents - State.
3. The facts in brief, are as follows:
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The victim - petitioner was aged 21 years, at the relevant
point in time. She is a victim of rape at the hands of the
accused in Crime No.01 of 2024 for offences punishable under
Sections 376, 417, 420, 114, 506 and 34 of the Indian Penal
Code, 1860. On account of Amenorrhea for few months, the
petitioner - victim herself tested with the help of a pregnancy
kit and got to know that she was pregnant. Thereafter, she
brought to the notice of the accused and his parents about the
pregnancy and requested the accused to get married to her.
The parents of the accused at that point revealed the fact that
the accused was already married to one Lekhana and the
marriage between the accused and his wife was pending for
divorce before the concerned Court. When the petitioner -
victim started pestering the accused to get married to her, the
accused allegedly threatened the petitioner that he would
disclose her nude videos and photos to the public. The accused
even tried to get the foetus aborted by advising the petitioner
to take Ayurvedic treatment, which was unsuccessful and
thereby, the petitioner had to continue with her pregnancy for
close to 18 weeks.
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4. The petitioner - victim then files a complaint before
the jurisdictional police in Crime No.1/2024 on 02.01.2024, for
the afore-quoted offences. On the registration of the
complaint, the police referred the petitioner to the Government
Medical Hospital, Mysuru for examination on 03.01.2024,
wherein it was opined that the petitioner was pregnant of 19
weeks. The petitioner states that at this point in time, she had
requested the State to conduct a medical termination of
pregnancy. Since the State did not accede to her request, the
petitioner - victim has also approached the Medical Board,
Mysuru, after around five weeks requesting termination of her
pregnancy, but the report was not in favour of the petitioner on
the score that the gestational age of the foetus has crossed 24
weeks as on the date of the report and the termination is in
violation of Medical Termination of Pregnancy Act, 1971 (for
short 'the Act'). The report of the Medical Board has driven the
petitioner to this Court in the subject petition.
5. This Court vide order dated 05.02.2024, in view of the
impending urgency referred the petitioner - victim for a second
medical examination to Vani Vilas Hospital, Bangalore and
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directed them to constitute a Medical Board of Gynecologist,
Pediatrician and all necessary experts, who shall examine the
petitioner on 07.02.2024 and render an opinion as to the
fitness of the victim to undergo medical termination of
pregnancy and also on the condition of the foetus. The report
reads as follows:
"BANGALORE MEDICAL COLLEGE AND RESEARCH
INSTITUTE
Medical Board Opinion for the Termination of Pregnancy of
MISS XX
Name: XX
Age: 22 years
Date and time: 07/02/2024
Address: NO yadadore v, naarasipura taluk Mysore
Date, time and place of examination: 07/02/2024, 11:00 AM,
Vani Vilas Hospital, BMCRI, Bengalore
DIAGNOSIS AT THE TIME OF ADMISSION- PRIMIGRAVIDA
WITH 6 MONTHS OF AMENORRHOEA FOR MTP
PHYSICAL EXAMINATION
Patient is alert, conscious and cooperative.
Build and nutrition: Moderate
Weight: 50 kg
No pallor, no pedal edema, no cyanosis
Thyroid, breast, spine are normal
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Pulse: 82bpm
BP: 110/80 mm Hg
Respiratory rate: 16cpm
Afebrile
Cardiovascular system: S1, S2 heard, clinically no abnormality
detected
Respiratory system: clinically no abnormality detected
OBSTETRIC EXAMINATION
LMP: 18/8/2023
EDD: 25/5/2024
Scan EDD:
Primi, aged 22 years, no medical or surgical illness in the
past.
On examination:
Per abdomen: Uterus 24 - 26 weeks size, Fetal parts felt,
Head lower pole, Fetal heart sounds heard with Doppler.
ULTRASOUND EXAMINATION
Ultrasound examination of abdomen on 07/02/2024
Single live intrauterine gestation with good cardiac beats and
body movements seen
Fetal heart rate: 140 bpm
Biparietal Diameter: 5.73 cm
Head circumference: 22.31cm
Abdominal circumference: 18.79 cm
Femur length: 4.45 cm
Mean gestational age: 24 weeks + 01 days
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Estimated fetal weight: 655 gms
Placenta is Posterior, Lower Margin well above the internal
OS.
Amniotic fluid adequate
INVESTIGATIONS:
Hb:10.7 gm/dl
Platelets:2.4lakh cells/mm3
Blood glucose:108.5mg/dl
TSH: 1.38
Blood group: 'O' Positive
HBsAg- Non Reactive
VDRL- Non Reactive
HIV- Non Reactive
RADIOLOGIST OPINION
Dr. Arul Dasan, Here is a patient by name XX. Aged 22
years unmarried, admitted under department of OBG
with diagnosis, primi gravida with 6 months of
amenorrhoea for MTP, there can be psychological
burden on the patient and family. The patient can be
treated based on the aforementioned information as
per the court orders.
MEDICINE OPINION
Patient can be taken for the procedure after
Anaesthetic fitness moderate surgical risk.
PSYCHIATRY OPINION
Patient is diagnosed as adjustment disorder, need
supportive therapy and Tab. Escitalopram 10mg 1-0-0
(to start after the procedure), Tab. Clonazepam 0.5mg
0-0-1 (to start from today)
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FINAL OPINION
MISS XX, D/O Mahalingaih, Aged 22 years with WP No.
3640/2024 (GM-RES) who was referred to the medical
board for opinion on medical termination of pregnancy,
was examined by the medical board and is of the
opinion that she has been denied permission to
undergo termination of pregnancy as she has crossed
the period of gestation (Pregnancy) prescribed by the
2022 MTP Act for termination of pregnancy and fetus
will be viable at the time of delivery."
(Emphasis added)
The afore-quoted opinion of the Medical Board indicates
that the petitioner - victim has been denied to undergo medical
termination of pregnancy in view of the fact that the gestational
age of the foetus has crossed 24 weeks and the termination
would result in violation of the Act.
6. It is now germane to consider the relevant provisions
of the Act, which read as follows:
"Section 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.
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(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 twenty weeks, if such medical
practitioner is, or
(b) where the length of the pregnancy
exceeds twenty weeks but does not exceed
twenty-four weeks, in case of such category
of woman as may be prescribed by rules made
under this Act, if not less than two registered
medical practitioners are, of the 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.
Explanation 1.--For the purposes of clause (a),
where any pregnancy occurs as a result of failure of any
device or method used by any woman or her partner for
the purpose of limiting the number of children or
preventing pregnancy, the anguish caused by such
pregnancy may be presumed to constitute a grave injury
to the mental health of the pregnant woman.
Explanation 2.--For the purposes of clauses
(a) and (b), where any pregnancy is alleged by the
pregnant woman to have been caused by rape, the
anguish caused by the pregnancy shall be presumed
to constitute a grave injury to the mental health of
the pregnant woman.
(2A) The norms for the registered medical
practitioner whose opinion is required for termination of
pregnancy at different gestational age shall be such as
may be prescribed by rules made under this Act.
(2B) The provisions of sub-section (2) relating to
the length of the pregnancy shall not apply to the
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termination of pregnancy by the medical practitioner
where such termination is necessitated by the diagnosis
of any of the substantial foetal abnormalities diagnosed
by a Medical Board.
(2C) Every State Government or Union territory, as
the case may be, shall, by notification in the Official
Gazette, constitute a Board to be called a Medical Board
for the purposes of this Act to exercise such powers and
functions as may be prescribed by rules made under this
Act.
(2D) The Medical Board shall consist of the
following, namely:--
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be
notified in the Official Gazette by the State Government
or Union territory, as the case may be.
(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 of the pregnant woman's
actual or reasonably 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."
Section 3 deals with termination of pregnancy and sub-
section (2) of Section 3 indicates termination of pregnancy
which has exceeded twenty weeks but does not exceed twenty-
four weeks. In terms of the final opinion of the Medical Board,
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at Vani Vilas Hospital, the petitioner - victim has crossed her
gestational age of 24 weeks and termination would violate the
Act.
7. The opinion of the Obstetrician concerning the
termination is that, the petitioner can undergo the procedure
for termination after Anaesthetic fitness with moderate surgical
risk. The Radiologist has opined that there can be
psychological burden on the patient and her family and
therefore, she can undergo the medical termination of
pregnancy as per Court orders. The Psychiatrist has opined
that the petitioner is diagnosed with adjustment disorder,
requires supportive therapy through medication and has also
prescribed medication post termination. Despite, the opinion of
the Obstetrician, Radiologist and Psychiatrist, the Medical Board
in its final opinion has rejected the petitioner's request for
medical termination of pregnancy only on the score that it
would result in violation of the Act and that the foetus would be
viable at the time of delivery.
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8. On a perusal at the opinion of the Medical Board, what
would unmistakably emerge is that, though the petitioner is
medically fit to undergo the medical termination of pregnancy,
the Board has rejected it only on the score that it would violate
the Act. When the Board was directed to render its opinion as
to the fitness of the petitioner to undergo the procedure, the
Board in its final opinion has not even whispered about the
fitness of the petitioner but has gone into the Act in a
mechanical way, thereby, failing to consider the best interest of
the petitioner - victim.
9. In the peculiar facts and circumstances of the case at
hand, it would be appropriate to quote the judgment of the
Apex Court rendered in the case of Z VS. STATE OF BIHAR
AND OTHERS reported in (2018) 11 SCC 572, wherein the
Apex Court has held as follows:
"9. After so stating, the High Court adverted to
Sections 3 to 5 of the Act and opined that the provisions are
not applicable to the writ petitioner. The learned Single
Judge also referred to Section 10 of the Human
Immunodeficiency Virus and AIDS (Prevention and Control)
Act, 2017 and distinguished the decisions rendered in Meera
Santosh Pal v. Union of India - (2017) 3 SCC 462, X v.
Union of India and others - (2017) 3 SCC 458 and X v.
Union of India - (2016) 14 SCC 382. He placed reliance on
Sheetal Shankar Salvi and another v. Union of India -
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(2018) 11 SCC 606, wherein this Court has declined
termination of 20 weeks of pregnancy. The High Court,
thereafter, adverted to the statement of law in Suchita
Srivastava and another v. State (UT of Chandigarh) - (2009)
9 SCC 1 and reproduced certain paragraphs and took note of
the concept that in the case of a pregnant woman and
'compelling State interest' and further adverted to the
doctrine of 'parens patriae' where in certain situations the
State must make decisions in order to protect the interest of
those persons who are unable to take care of themselves.
Thereafter, the learned single Judge adverted to the two
standards, namely, 'best interests' test and 'substituted
judgment' test as laid down in Suchita Srivastava (supra).
The High Court also dwelled upon the role of the court
that it must undertake a careful inquiry of the medical
opinion on the feasibility of the pregnancy as well as
social circumstances faced by the victim.
..... ...... ....
22. In the instant case, the gravamen of the
submission of the learned counsel for the appellant is that
negligence and delay have been caused by the authorities of
the State. Be it noted, learned counsel for the appellant has
filed a chart giving various dates to highlight the chronology
of events. On a perusal of the same, it is demonstrable that
after the appellant was brought to Shanti Kutir, it was
noticed that she was pregnant. She was taken to PMCH. At
that time, she was 13 weeks and 6 days pregnant. In the
midst of 18th week, she expressed her desire to
terminate her pregnancy and that was communicated
by the Shanti Kutir to the hospital and, thereafter, she
was taken to PMCH, where she made an allegation
that she had been raped and expressed her desire to
terminate her pregnancy. Though she was taken to
the hospital for termination of pregnancy, yet the
hospital authorities instead of proceeding with the
termination, called the father of the appellant to sign
the consent form. According to the learned counsel
for the appellant, while she had gone to the
government hospital and clearly stated that she had
been raped and further she was taken by the persons
from the Shanti Kutir, which is a Women
Rehabilitation Centre, and further there was no
material that she was suffering from any mental
illness, it was obligatory on the part of the hospital to
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terminate the pregnancy. Had that been done at the
right time, the grave mental torture that she has been
going through could have been avoided. Learned
counsel also criticized the approach of the High Court
in not dealing with the matter with required amount
of sensitivity and not adhering to the statutory
provision that when there is an allegation of rape, the
pregnancy can be terminated. The High Court directed
for a Medical Board to be constituted and after receipt
of the report of the Medical Board some time was
consumed and, thereafter, also the High Court
required the father of the appellant to file an affidavit
giving his consent.
23. We have already anlaysed in detail the factual
score and the approach of the High Court. We do not have
the slightest hesitation in saying that the approach of the
High Court is completely erroneous. The report submitted
by the IGIMS stated that termination of pregnancy
may need major surgical procedure along with
subsequent consequences such as bleeding, sepsis
and anesthesia hazards, but there was no opinion that
the termination could not be carried out and it was
risky to the life of the appellant. There should have
been a query in this regard by the High Court which it
did not do. That apart, the report shows that the
appellant, who was a writ petitioner before the High
Court, was suffering 30 from mild mental retardation
and she was on medications and her condition was
stable and she would require long term psychiatry
treatment. The Medical Board has not stated that she
was suffering from any kind of mental illness. The
appellant was thirty-five year old at that time. She
was a major. She was able to allege that she had been
raped and that she wanted to terminate her
pregnancy. PMCH, as we find, is definitely a place
where pregnancy can be terminated.
..... ..... ....
27. Thus, the opinion has to be formed by the
registered practitioners as per the Act and they are
required to form an opinion that continuance of
pregnancy would involve a grave mental or physical
harm to her. We have already referred to Explanation
1 which includes allegation of rape. As is perceivable,
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the Appellant had gone from a women rehabilitation
centre, had given consent for termination of
pregnancy and had alleged about rape committed on
her, but the termination was not carried out. In such a
circumstance, we are obliged to hold that there has
been negligence in carrying out the statutory duty, as
a result of which, the Appellant has been constrained
to suffer grave mental injury.
...... .... ....
41. In a recent decision in Ms. Eera Thr. Dr. Manjula
Krippendorf v. State (Govt. of NCT of Delhi) and Anr.- 2017
(8) SCALE 112, the distinction between the mental illness
and mental retardation, keeping in view the statutory
provisions and the concept of purposive interpretation, has
been accepted.
42. In the case at hand, the Appellant is a victim
of rape. She suffers from mild mental retardation and
she is administered psychiatry treatment, but she is in
a position to express her consent. Under the statutory
framework, she was entitled to give her consent for
termination of pregnancy. As is evident, she did not
desire to bear a child. This is a reverse situation what
has been portrayed in Suchita Srivastava (supra). The
principle set out in Suchita Srivastava (supra)
emphasizes on consent. As the facts would unfurl, the
Appellant had given consent for termination and she
had categorically alleged about rape. In such a
circumstance, we perceive no fathomable reason on
the part of the PMCH not to have proceeded for
termination of the pregnancy because there was
nothing on record to show that there was any danger
to the life of the victim."
(Emphasis supplied)
In the light of the afore-quoted judgment of the Apex
Court, the Medical Board should have only rendered its opinion
concerning the risk to the life of the victim, in case of medical
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termination of pregnancy, keeping in mind the reproductive
choice of the petitioner. But, in the case at hand having not
done so, the petitioner is been forced to undergo an unwanted
pregnancy, which poses several problems such as a grave risk
to her mental health and financial difficulties.
10. Again, the Apex Court in the later judgment in the
case of X Vs. Principal Secretary, Health and Family
Welfare Department, Government of NCT of Delhi and
Another reported in (2023) 9 SCC 433, while discussing the
impact of an unwanted pregnancy upon the mental health of a
woman, has held as follows:
"67. The grounds for approaching courts differ
and include various reasons such as a change in the
circumstances of a woman's environment during an
ongoing pregnancy, including risk to life - A v. Union of
India, (2018) 14 SCC 75; X v. Union of India, (2017) 3 SCC
458; Meera Santosh Pal v. Union of India, (2017) 3 SCC
462; Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC
57; Mamta Verma v. Union of India, (2018) 14 SCC 289,
risk to mental health - X v. Union of India, (2017) 3 SCC
458; Meera Santosh Pal v. Union of India, (2017) 3 SCC
462; Sarmishtha Chakrabortty v. Union of India, (2018) 13
SCC 339; Mamta Verma v. Union of India, (2018) 14 SCC
289; Z v. State of Bihar, (2018) 11 SCC 57, discovery of
foetal anomalies - A v. Union of India, (2018) 14 SCC
75; Sarmishtha Chakrabortty v. Union of India, (2018) 13
SCC 339; Tapasya Umesh Pisal v. Union of India, (2018) 12
SCC 57; Mamta Verma v. Union of India, (2018) 14 SCC
289, late discovery of pregnancy in case of minors and
women with disabilities - X Vs. Union of India, (2020) 19
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SCC 806, and pregnancies resulting from sexual
assault or rape - Z v. State of Bihar, (2018) 11 SCC 57; X
Vs. Union of India, (2020) 19 SCC 806. These are
illustrative situations thrown up by cases which travel
to the court. Although the rulings in these cases
recognized grave physical and mental health harms
and the violation of the rights of women caused by the
denial of the option to terminate unwanted
pregnancies, the relief provided to the individual
petitioner significantly varied.
68. The expression "mental health" has a wide
connotation and means much more than the absence of a
mental impairment or a mental illness. The World Health
Organization defines mental health as a state of "mental
well-being that enables people to cope with the stresses of
life, realize their abilities, learn well and work well, and
contribute to their community." (World Health Organisation,
"Promoting Mental Health: Concepts, Emerging Evidence,
Practise (Summary Report)" (2004). The determination of
the status of one's mental health is located in one's self and
experiences within one's environment and social context.
Our understanding of the term mental health cannot be
confined to medical terms or medical language, but should
be understood in common parlance. The MTP Act itself
recognizes the need to look at the surrounding
environment of the woman when interpreting injury to
her health. Section 3(3) states that while interpreting
"grave injury to her physical or mental health",
account may be taken of the pregnant woman's actual
or reasonably foreseeable environment. The
consideration of a woman's "actual or reasonably
foreseeable environment" becomes pertinent,
especially when determining the risk of injury to the
mental health of a woman.
69. There have been numerous decisions of the
High Courts where a purposive interpretation is given
to the phrase mental health as used in the MTP Act. In
Medical Termination of Pregnancy of Woman Prisoner
in Byculla District Prison, In re. - 2016 SCC Online
Bom 8426, The High Court of Bombay correctly held
that compelling a woman to continue any unwanted
pregnancy violates a woman's bodily integrity,
aggravates her mental trauma and has a deleterious
effect on the mental health of the woman because of
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the immediate social, financial and other
consequences flowing from the pregnancy.
70. In Sidra Mehboob Shaikh v. State of
Maharashtra - 2021 SCC Online Bom 1839 the High
Court of Bombay permitted the petitioner to undergo
medical termination of her pregnancy on the ground
that compelling her to continue with her unwanted
pregnancy would be oppressive, and would likely
cause a grave injury to her mental health. The
petitioner, a victim of domestic violence, had
approached the court to allow her to undergo an
abortion as she pleaded that she did not want to raise
a child in the absence of financial and emotional
support from her husband; and raising a child on her
own would be burdensome. The High Court observed
that:
"22. ...... Mental state of a person is a continuum
with good mental health being at one end and
diagnosable mental illness at the opposite end.
Therefore, mental health and mental illness, although
sound similar, are not the same."
71. We note the correct interpretation adopted
in two other judgments from the Bombay High Court,
where the Court permitted unmarried petitioners to
abort, after purposively construing the effects of
carrying an unwanted pregnancy on mental health of
a woman. In XYZ Vs. State of Maharashtra - 2021 SCC
Online Bom 3353, an unmarried petitioner aged about
18 years was allowed to terminate her pregnancy in
the 26th week after considering her socio-economic
condition, and the impact of the continuation of
pregnancy on her mental health.
72. In Siddhi Vishwanath Shelar v. State of
Maharashtra - 2020 SCC Online Bom 11672, a twenty-three
year old petitioner contended that she was not mentally
ready to be an unwed mother and sought the termination of
her pregnancy of approximately twenty-three weeks. The
Petitioner was engaged in a consensual relationship but had
since parted ways from her partner, and thus wanted to
terminate the unwanted pregnancy. While permitting the
abortion, the High Court of Bombay observed that
insisting upon continuance of pregnancy would
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involve a grave injury to the petitioner's health. The
High Court took note of the woman's submissions
regarding her actual and foreseeable environment."
(Emphasis supplied)
As per Explanation (2) to Section 3(2)(b) of the Act
quoted (supra), where any pregnancy is alleged to be a
consequence of a rape, the anguish caused by such pregnancy
to the woman shall constitute a grave injury to the mental
health of the pregnant woman. The Medical Board has infact
acted de hors the Explanation (II) to Section 3(2)(b) by not
recognizing the grave impact on the mental health of the
petitioner in continuing the pregnancy, considering that she is a
victim of rape.
11. Apart from the report of the Medical Board, it is
pertinent and imperative to note the socio-economic impact on
the victim, if she begets. As per the petition averments, the
victim in the case at hand is an unmarried woman and not
financially sound. Learned counsel for petitioner - victim
further expresses the difficulties of the petitioner in providing
the required necessities for nurturing a child. In such
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circumstances, it would be onerous upon the petitioner to bring
up a child.
12. In the light of the aforesaid reasons, the petitioner -
victim can undergo termination of pregnancy with necessary
precautions during the procedure for termination with
psychological support. It would become necessary for a
direction to be issued to the Hospital to undertake termination
of pregnancy. Therefore, the following:
ORDER
1. The writ petition is allowed.
2. Mandamus issues to Vani Vilas Hospital,
Bengaluru, through the respondents - State to
carryout the procedure for Medical Termination
of Pregnancy in terms of the Medical
Termination of Pregnancy Rules, 1971, forthwith
at its hospital at the cost of the State.
3. The procedure is subject to further examination
of the Doctor who has to conduct such a
procedure and if in the opinion of the Doctor,
such a procedure would cause harm or injury to
the life of the petitioner, the Doctor shall be the
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final deciding authority as to whether to go
ahead or not with such a procedure;
4. In the event of the Doctor being of the opinion
that medical termination of pregnancy
procedure has to be carried out and is in fact
carried out, the foetus shall be preserved by
Vani Vilas Hospital in such a manner as to
facilitate DNA testing of the foetus. The said
Hospital is directed to send the tissue sample of
the foetus for DNA testing to the Central
Forensic Testing Laboratory at Bangalore.
5. If the baby is alive at birth, the hospital shall
ensure that the baby is offered the best medical
treatment available, so that it develops into a
healthy child.
6. If the petitioner is not willing to assume the
responsibility of the baby, the State and its
agencies shall assume full responsibility and
offer medical support and facilities to the child,
keeping in mind the best interests of the child
and the statutory provisions in the Juvenile
Justice (Care and Protection of Children) Act,
2015.
7. Respondent No.1 - State shall pay the
compensation to the petitioner - victim in terms
- 22 -
NC: 2024:KHC:6105
of the Government Order No.HD 42 PCB 2018,
dated 25.09.2018
8. Official respondents shall file status report in
two weeks, for its compliance.
9. A copy of this order shall be furnished to
learned Additional Government Advocate.
10. Registry shall communicate this order to the
Hospital - the Medical Superintendent of Vani
Vilas Hospital, forthwith, by way of electronic
mail.
Sd/-
JUDGE
NVJ
CT:SS
