Madras High Court
Mahalakshmi vs The District Collector on 19 January, 2021
1 W.P.(MD)NO.659 OF 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.01.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.659 of 2021
Mahalakshmi ... Petitioner
Vs.
1. The District Collector,
Virudhunagar,
Virudhunagar District.
2. The District Social Welfare Officer,
The District Social Welfare Office,
Virudhunagar.
3. The Dean,
Government Hospital,
Virudhunagar,
Virudhunagar District.
4. The Inspector of Police,
All Women police station,
Rajapalayam,
Virudhunagar District. ... Respondents
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Mandamus, to direct
the third respondent to terminate the pregnancy of the
petitioner's minor niece, namely J, D/o.Late Kaaliappan, aged
about 15 within the time frame fixed by this Court.
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2 W.P.(MD)NO.659 OF 2021
For Petitioner : Mr.Samuel Gunasingh,
for Mr.C.Vanchinathan
For Respondents : M/s.B.Bhagavathi,
Government Advocate.
***
ORDER
Heard the learned counsel on either side.
2. The writ petitioner is the defacto complainant in
Crime No.663 of 2020 registered on the file of the
Rajapalayam South police station. The petitioner brought to
the notice of the fourth respondent vide complaint dated
02.11.2020 that her niece Minor J was missing from the
previous day. Steps were taken by the investigation officer to
secure the minor. At this stage on 27.11.2020, the writ
petitioner appeared before the fourth respondent along with
the kidnapped minor. It was revealed that J was on friendly
terms with one Muthukumar. Muthukumar came to be
arrested in some case. Without being aware of the same, J
called on his mobile phone. His friend Sundar @
Sundareswaran attended the call. He enticed J and kidnapped
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3 W.P.(MD)NO.659 OF 2021
her. Sundar had physical intimacy with J several times from
02.11.2020 to 24.11.2020. After coming to know of her
whereabouts, the petitioner brought her back and produced
her before the police.
3. J's father Kaliyappan had died in the year 2012 and
her mother is mentally unstable. J was with her aunt and
uncle but she was not willing to go with them. Therefore, she
was admitted to a social welfare home. Since J had become
pregnant, the petitioner wants this Court to direct the official
respondents to terminate her pregnancy.
4. Considering the urgency of the matter, this Court
ordered notice to the respondents. Dr.R.Rajalakshmi, Assistant
Surgeon, Virudhunagar Government Medical College and
Hospital, after examining the minor girl, categorically opined
that her gestational age is about 10-11 weeks and that
continuing the pregnancy may endanger her physical and
mental health. In her report, she cited the risks involved in
continuing pregnancy and called upon this Court to permit
termination of pregnancy on medical grounds.
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4 W.P.(MD)NO.659 OF 2021
5. The report filed by the police reveals that Sundar is
involved in more than 10 cases. The details are as follows:-
Crime No. Offence u/s. Name of the
police station
385 of 2013 109 of Cr.P.C. Rajapalayam
South police
station
12 of 2012 27(1) Arms Act & 395 of I.P.C. Rajapalayam
South police
station
716 of 2019 505(2) of I.P.C. and Section 3 Rajapalayam
of TNPPDL Act South police
station
606 of 2014 75(1)(c) of TNCP Act Rajapalayam
North police
station
538 of 2015 294(b), 323, 324, 341and Rajapalayam
506(ii) of I.P.C. North police
station
502 of 2013 302 of I.P.C. Anuppurpalayam
police station,
Tirupur
9 of 2012 379 of I.P.C. Eraniel police
station,
Kanyakumari
District.
83 of 2019 379 of I.P.C. Annur police
station,
Coimbatore
District.
358 of 2019 302 of I.P.C. Sivakasi Town
police station
763 of 2017 Theft cases Sivakasi Town
& 722 of police station
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5 W.P.(MD)NO.659 OF 2021
6. The law of the subject is set out in Section 3 of the
Medical Termination of Pregnancy Act, 1971 which reads as
follows:-
“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
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6 W.P.(MD)NO.659 OF 2021
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 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 II.-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
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7 W.P.(MD)NO.659 OF 2021
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.“
Livelaw has recently reported a decision of the High Court of
Kerala (W.P.(C)No.29209 of 2020(A) dated 04.01.2021) in
which the learned Judge held as follows:-
“6. This court has in the judgments
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8 W.P.(MD)NO.659 OF 2021
in ABC V Union of India & others: 2020(4)
KLT 279, Ms. X v. State of Kerala and Others:
2016 (4) KLT 745, etc, have ordered
termination of pregnancy exceeding 20 weeks
in the case of rape victims who were not
mentally prepared to deliver the child, in
order to save their lives. The Apex court has
in the judgment in A V. Union of India:
(2018)4 SCC 75 permitted termination in a
case where the gestational age was 25-26
weeks. In Murugan Nayakkar V Union of
India: 2017 SCC online SC 1092 allowed
termination of pregnancy in the case of 13
year old child and in Sarmishtha
Chakrabortty v. Union of India: (2018) 13
SCC 339, permitted termination of pregnancy
when the gestational age was 26 weeks, in
view of the recommendation of the medical
board and the medical report revealing the
threat of severe mental injury to the woman
and to the multiple complex problems to the
child, if born alive, involving complex cardiac
corrective surgery stage by stage after birth,
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9 W.P.(MD)NO.659 OF 2021
in the event of continuation of the pregnancy.
In Meera Santosh Pal v. Union of India:
(2017) 3 SCC 462 also permission was
granted when the pregnancy crossed 24
weeks, in view of the medical reports pointing
out the risk involved. In the judgment
reported in Neethu Narendran V State of
Kerala: 2020(3)KHC 157 also this court
permitted termination of pregnancy when
gestational age crossed 23 weeks. As found in
those cases, the minor victim in this case is
also not prepared to deliver a child in the
situation. In view of the trauma that the
minor girl has undergone and taking note of
the opinion of the Psychiatrist coupled with
the report of medical board, I am of the view
that the writ petition can be allowed
permitting termination of pregnancy.”
7. Of course, the pregnancy of the minor girl cannot
be terminated without the consent in writing of her guardian.
In the present case, the minor's father died a long time back.
Her mother is mentally unsound. Her uncle Veluchamy, who
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10 W.P.(MD)NO.659 OF 2021
was taking care of the minor informed the Court that he wants
the pregnancy to be terminated. Initially, the minor girl was
unwilling to have her pregnancy terminated. She wanted to
continue with the same and deliver the child. That was the
stand taken by her, when Dr. Rajalakshmi initially examined
her. The Madras High Court in the decision reported in
(1994-1) 113 Mad.L.W.89 (V.Krishnan V. G.Rajan alias Madipu
Rajan) had held that Section 3 (4)(a) can never be understood
as dispensing with the consent of the pregnant woman even if
she is a minor. In the said case, the father of the girl sought
termination of pregnancy of his minor daughter. But the minor
daughter was unwilling. Ultimately the Hon'ble Division Bench
held that the termination of pregnancy cannot be ordered. The
Hon'ble Division Bench felt that when the minor is matured,
her wishes cannot be ignored. I wondered if the issue can be
decided only going by the wishes of the victim and by ignoring
the interests of the unborn child.
8. While we do celebrate life, the foremost spiritual
prayer is that there should be liberation from the cycle of
births and deaths. Tamil Sage-poet Thiruvalluvar in Thirukural
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wrote thus:
“Ntz;Lq;fhy; Ntz;Lk; gpwthik kw;WmJ
Ntz;lhik Ntz;l tUk;.”
(If anything is to be desired, it should be freedom from birth.)
Adi Shankara in “Bhaja Govindam” sang as follows:-
“Punarapi jananam punarapi maranam,
Punarapi janani jatare sayanam
Iha samsaare khalu dusthare,
Krupayaa pare pahi murare.”
Again and again one is born,
And again and again one dies,
And again and again one sleeps in the mother’s womb,
Help me to cross,
This limitless sea of life,
Which is uncrossable, my Lord “
The Court must put itself in the shoes of the unborn child and
objectively decide if coming into this world would be in its
best interest. An unborn child is also a person. In the case on
hand, the father of the child has been shown to be involved in
a host of criminal cases, some of which are very grave in
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12 W.P.(MD)NO.659 OF 2021
nature. The minor is aged 15 years. She is not in a position to
maintain herself. She cried before this Court that her uncle
Veluchamy should take her back home. Though the minor
might have accompanied the accused Sundar on her own
volition, technically what has been committed is a non-
compoundable offence under Section 6 of the Protection of
Children from Sexual Offences Act, 2012. If a choice is given
to the foetus now in the womb of the minor, it would definitely
proclaim that it would not wish to be born.
9. I am however spared the trouble of taking such a
harsh decision, by overruling the stand of the minor because
she had changed her mind in the meanwhile. She told me
during Video Conference that she had agreed for termination
of the pregnancy.
10. Taking note of the medical opinion and consent
given by the minor, I direct the third respondent to terminate
the pregnancy of minor J forthwith. Of course the safety and
health of the victim is paramount and Doctors will bear in
mind. The samples of foetus shall be preserved for carrying
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13 W.P.(MD)NO.659 OF 2021
out of medical tests for the purpose of the criminal case.
11. That cannot be an end of the matter. The accused
in Crime No.663 of 2020 has been arrested and he is presently
confined in Central Prison, Madurai. This is a case which has
to be necessarily fast tracked. I have come across a number of
cases in which the accused come out on statutory bail because
final report is deliberately not filed in time. The investigation
officer will ensure that the final report is filed within the
statutory period. It is not necessary for the investigation
officer to wait for the results of the paternity test. Of course
D.N.A. Samples from the foetus as well as the accused and the
victim will be taken and sent for analysis. But the progress of
the case or the filing of the final report need not depend on its
outcome. It may probably become relevant and necessary if
the victim does a somersault during the trial. After the fourth
respondent files final report, the decision regarding taking
cognizance will be taken by the Special Court within three
days as mandated in the statutory rules. If cognizance is
taken, the trial itself will be disposed of on merits and in
accordance with law within a period of three months
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14 W.P.(MD)NO.659 OF 2021
thereafter.
12. As and when the accused files petition for bail, the
antecedents of the accused will be brought to the notice of the
Court concerned. I am constrained to issue this direction
because in many cases, the antecedents of the accused are
conveniently suppressed and the Court considering the bail
petition passes orders without being aware of the same.
13. Though from a common perspective, one may
comment that J eloped with Sundar, in the eye of law she is a
child. She is a victim of circumstances. The Protection of
Children from Sexual Offences Act, 2012 contains beneficial
provisions for payment of compensation. Section 33(8) of the
Act reads as follows:-
“In appropriate cases, the Special
Court may, in addition to the punishment,
direct payment of such compensation as may
be prescribed to the child for any physical or
mental trauma caused to him or for
immediate rehabilitation of such child.”
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15 W.P.(MD)NO.659 OF 2021
Rule 7 of POCSO Rules 2012 reads as follows:-
7. Compensation - (1) The Special Court may, in appropriate cases, on
its own or on an application filed by or on behalf of the child, pass
an order for interim compensation to meet the immediate needs of
the child for relief or rehabilitation at any stage after registration
of the First Information Report. Such interim compensation paid to
the child shall be adjusted against the final compensation, if any.
(2)The Special Court may, on its own or on an application filed by
or on behalf of the victim, recommend the award of compensation
where the accused is convicted, or where the case ends in acquittal
or discharge, or the accused is not traced or identified, and in the
opinion of the Special Court the child has suffered loss or injury as
a result of that offence.
(3) Where the Special Court, under sub-section (8) of section 33 of
the Act read with subsections (2) and (3) of section 357A of the
Code of Criminal Procedure, makes a direction for the award of
compensation to the victim, it shall take into account all relevant
factors relating to the loss or injury caused to the victim, including
the following:-
(i) type of abuse, gravity of the offence and the severity of the
mental or physical harm or injury suffered by the child;
(ii) the expenditure incurred or likely to be incurred on his medical
treatment for physical and/or mental health;
(iii) loss of educational opportunity as a consequence of the
offence, including absence from school due to mental trauma,
bodily injury, medical treatment, investigation and trial of the
offence, or any other reason;
(iv) loss of employment as a result of the offence, including
absence from place of employment due to mental trauma, bodily
injury, medical treatment, investigation and trial of the offence, or
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16 W.P.(MD)NO.659 OF 2021
any other reason;
(v) the relationship of the child to the offender, if any;
(vi) whether the abuse was a single isolated incidence or whether
the abuse took place over a period of time;
(vii) whether the child became pregnant as a result of the offence;
(viii) whether the child contracted a sexually transmitted disease
(STD) as a result of the offence;
(ix) whether the child contracted human immunodeficiency virus
(HIV) as a result of the offence;
(x) any disability suffered by the child as a result of the offence;
(xi) financial condition of the child against whom the offence has
been committed so as to determine his need for rehabilitation;
(xii) any other factor that the Special Court may consider to be
relevant.
(4) The compensation awarded by the Special Court is to be paid
by the State Government from the Victims Compensation Fund or
other scheme or fund established by it for the purposes of
compensating and rehabilitating victims under section 357A of the
Code of Criminal Procedure or any other laws for the time being in
force, or, where such fund or scheme does not exist, by the State
Government.
(5) The State Government shall pay the compensation ordered by
the Special Court within 30 days of receipt of such order.
(6) Nothing in these rules shall prevent a child or his parent or
guardian or any other person in whom the child has trust and
confidence from submitting an application for seeking relief under
any other rules or scheme of the Central Government or State
Government. “
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17 W.P.(MD)NO.659 OF 2021
14. Applying the legal provisions to the facts of the
case, I hold that the minor is entitled to interim compensation.
The investigation officer is directed to take out an application
for payment of interim compensation before the Special Court
under the aforesaid provision. The Special Court will pass
appropriate orders so that a sum of Rs.5,000/-(Rupees Five
Thousand only) is credited every month to the bank account of
Thiru.Veluchamy for the purpose of maintaining J. Such a
remittance will be made for 36 months. This Court will make
arrangements for providing the necessary funds for
disbursement by the Special Court.
15. Veluchamy, the paternal uncle of the victim stated
before this Court that he is not willing to take the child back
and that she must continue to remain in the welfare home. I
bluntly told Veluchamy that having filed the present writ
petition, through his sister, he cannot wash his hands off.
Veluchamy thereupon undertook that he would take the minor
back after a period of four weeks. This undertaking of
Veluchamy is recorded. I direct the welfare home to keep J for
four more weeks in their custody after which she will be sent
back to her natural home.
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18 W.P.(MD)NO.659 OF 2021
16. With these directions, this writ petition stands
allowed. No costs.
19.01.2021
Index : Yes / No
Internet : Yes/ No
pmu
Note: 1. Issue order copy on 22.01.2021.
2. In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The District Collector,
Virudhunagar,
Virudhunagar District.
2. The District Social Welfare Officer,
The District Social Welfare Office,
Virudhunagar.
3. The Dean,
Government Hospital,
Virudhunagar,
Virudhunagar District.
4. The Inspector of Police,
All Women police station,
Rajapalayam,
Virudhunagar District.
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19 W.P.(MD)NO.659 OF 2021
G.R.SWAMINATHAN,J.
pmu
W.P.(MD)No.659 of 2021
19.01.2021
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