Madras High Court
K.Subramani vs The Commissioner Of Police on 28 November, 2023
Author: M.Sundar
Bench: M.Sundar
H.C.P(MD)No.1240 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.11.2023
Coram
THE HON'BLE MR.JUSTICE M.SUNDAR
and
THE HON'BLE MR. JUSTICE R.SAKTHIVEL
H.C.P(MD)No.1240 of 2023
K.Subramani .. Petitioner/Father of the detenu
vs
1.The Commissioner of Police,
Madurai,
Madurai District.
2.The Inspector of Police,
S.S.Colony Police Station,
Madurai District.
3.M.Yesu @ Karuappasamy
4.The Dean,
Government Rajaji Hospital,
Madurai.
5.The District Child Protection Officer,
Child Welfare Committee,
Madurai District.
(Collectorate Campus).
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1/36
H.C.P(MD)No.1240 of 2023
6.Lifeline Trust Specialised Home,
52, Raja Ganapathy Street,
Chinna Tirupathy,
Salem – 636 008. .. Respondents
(R4 to R6 are suo motu impleaded vide order of
the Court dated 17.11.2023 in H.C.P(MD)No.1240 of 2023)
Prayer:- Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Habeas Corpus directing the second
respondent to produce the body or person of the petitioner's minor
daughter detenu XXXX, aged 17 years, D/o.K.Subramani before this
Court and handover the custody to the petitioner.
For Petitioner : Mr.L.Shaji Chellan
For Respondents 1, 2, 4 & 5 : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
: Ms.B.Poongkhulali
(Amicus Curiae)
ORDER
[Order of the Court was made by M.SUNDAR, J.]
The case on hand which started as a Habeas legal drill is now
anchored on a girl's right of reproductive choice.
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2.We deem it appropriate to reproduce the proceedings made in
the previous listings in chronological order so that this order captures
the trajectory the matter has taken before us. To be noted, previous
proceedings / orders capture the crux and gravamen of the case on hand
also. The proceedings/orders made in the previous listings on
13.10.2023, 06.11.2023, 08.11.2023, 17.11.2023 and 20.11.2023 are as
follows:
Proceedings dated 13.10.2023:
M.SUNDAR., J.
and
R.SAKTHIVEL., J.
ORDER
[Order of the Court was made by M.SUNDAR., J.]
Captioned 'Habeas Corpus Petition' ['HCP' for brevity) has been
filed in this Court on 10.10.2023.
2. Factual matrix in a nutshell is that petitioner's daughter
'xxxxx' [we are masking the name of the petitioner's daughter and we shall
be referring to her as 'absentee' for the sake of convenience] was missing
from 29.06.2023; that petitioner lodged a complaint in S.S.Colony Police
Station, Madurai City and the same was taken on file vide FIR No.881 of
2023 [girl missing]; that fearing illegal detention / unlawful custody by the
third respondent [to be noted, third respondent is a private respondent],
captioned HCP has been filed.
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3. In the Admission Board, Mr.V.Santhakumaresan, learned counsel
on record for petitioner, petitioner along with his spouse are present.
4. Learned counsel for HCP petitioner reiterated the
aforementioned facts.
5. Issue notice to official respondents [respondents 1 and 2].
6. Mr.A.Thiruvadi Kumar, learned State Additional Public
Prosecutor is instructed by Ms.M.Perarasi, Sub Inspector of Police,
S.S.Colony Police Station, Madurai. Learned State Additional Public
Prosecutor submitted that absentee has been located and she is in Court.
Therefore, this Bench had an interaction with the absentee and the
following points emerged:
i) absentee is friendly with third respondent;
ii) absentee has gone out of her parental home on her own will and
volition i.e., voluntarily;
iii) absentee had gone over to the third respondent's parent's house
in Kerala;
iv) absentee does not want to go to her parental home;
v) absentee, who is 17 years and 3 days short of 1 month as of
today, wants to make a choice about her matrimony on attaining majority
but does not want to stay with her parents; and
vi) absentee has set out certain reasons for not wanting to stay in
her parental home but we refrain from recording all that as we find that it
is best left open;
7. In the light of the narrative thus far, which captures what
unfurled in the hearing today, we find it appropriate to make the following
order:
i) absentee shall now be lodged for the present in St.Patricks Home,
Near Serungeri Madam, Bye-pass Road, Madurai City and learned State
Additional Public Prosecutor shall facilitate the same by availing the
services of One Stop Centre, Madurai, which is a Government Agency
under the Ministry of Women and Child Development, Union of India,
https://www.mhc.tn.gov.in/judis
funded by NIRBAYA Fund;
ii) second respondent shall take the absentee for medical
examination to the Government Hospital and obtain a report which shall
be placed before us in the next listing; and
iii) until next listing / until further orders, absentee will remain in
St.Patricks Home, Near Serungeri Madam, Bye-pass Road, Madurai City.
8. List one week hence.
9. List under the cause list caption 'FOR REPORT' on 20.10.2023.'
Proceedings dated 06.11.2023:
M.SUNDAR, J.
and
R.SAKTHIVEL., J.
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listing on 13.10.2023.
2. Pursuant to earlier proceedings dated 13.10.2023 and more
particularly sub-paragraph (ii) of paragraph 7 thereat, a medical report in a
sealed envelop was placed before us.
3. This Court, having perused the medical report, is of the view that it
may be necessary to get further inputs from the Doctor, who has given the
medical report viz., Dr.Renuka Devi, Civil Assistant Surgeon, Government
Rajaji Hospital, Madurai. This Court requests the Medical Officer to be
present in person before this Court on 08.11.2023 at 2.15 p.m. Learned State
Additional Public Prosecutor is requested to inform through the Investigating
Officer viz., the second respondent, so that presence of the Medical Officer is
ensured.
4. List on 08.11.2023 at 2.15 p.m. The absentee will continue to be in
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the same home ie., St.Patricks Home, Near Serungeri Madam, Bye-pass Road,
Madurai City.'
Proceedings dated 08.11.2023:
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR,J.,)
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listings on 13.10.2023 and 06.11.2023
which read as follows:
13.10.2023:
M.SUNDAR., J.
and
R.SAKTHIVEL., J.
ORDER
[Order of the Court was made by M.SUNDAR., J.]
Captioned 'Habeas Corpus Petition' ['HCP' for brevity) has been
filed in this Court on 10.10.2023.
2. Factual matrix in a nutshell is that petitioner's daughter
'xxxxx' [we are masking the name of the petitioner's daughter and we shall
be referring to her as 'absentee' for the sake of convenience] was missing
from 29.06.2023; that petitioner lodged a complaint in S.S.Colony Police
https://www.mhc.tn.gov.in/judis
Station, Madurai City and the same was taken on file vide FIR No.881 of
2023 [girl missing]; that fearing illegal detention / unlawful custody by the
third respondent [to be noted, third respondent is a private respondent],
captioned HCP has been filed.
3. In the Admission Board, Mr.V.Santhakumaresan, learned counsel
on record for petitioner, petitioner along with his spouse are present.
4. Learned counsel for HCP petitioner reiterated the aforementioned
facts.
5. Issue notice to official respondents [respondents 1 and 2].
6. Mr.A.Thiruvadi Kumar, learned State Additional Public
Prosecutor is instructed by Ms.M.Perarasi, Sub Inspector of Police,
S.S.Colony Police Station, Madurai. Learned State Additional Public
Prosecutor submitted that absentee has been located and she is in Court.
Therefore, this Bench had an interaction with the absentee and the
following points emerged:
i) absentee is friendly with third respondent;
ii) absentee has gone out of her parental home on her own will and
volition i.e., voluntarily;
iii) absentee had gone over to the third respondent's parent's house
in Kerala;
iv) absentee does not want to go to her parental home;
v) absentee, who is 17 years and 3 days short of 1 month as of today,
wants to make a choice about her matrimony on attaining majority but does
not want to stay with her parents; and
vi) absentee has set out certain reasons for not wanting to stay in
her parental home but we refrain from recording all that as we find that it is
best left open;
7. In the light of the narrative thus far, which captures what unfurled
in the hearing today, we find it appropriate to make the following order:
i) absentee shall now be lodged for the present in St.Patricks Home,
Near Serungeri Madam, Bye-pass Road, Madurai City and learned State
https://www.mhc.tn.gov.in/judis
Additional Public Prosecutor shall facilitate the same by availing the
services of One Stop Centre, Madurai, which is a Government Agency
under the Ministry of Women and Child Development, Union of India,
funded by NIRBAYA Fund;
ii) second respondent shall take the absentee for medical
examination to the Government Hospital and obtain a report which shall be
placed before us in the next listing; and
iii) until next listing / until further orders, absentee will remain in
St.Patricks Home, Near Serungeri Madam, Bye-pass Road, Madurai City.
8. List one week hence.
9. List under the cause list caption 'FOR REPORT' on 20.10.2023.'
06.11.2023:
M.SUNDAR, J.
and
R.SAKTHIVEL., J.
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listing on 13.10.2023.
2. Pursuant to earlier proceedings dated 13.10.2023 and more
particularly sub-paragraph (ii) of paragraph 7 thereat, a medical report in
a sealed envelop was placed before us.
3. This Court, having perused the medical report, is of the view that
it may be necessary to get further inputs from the Doctor, who has given the
medical report viz., Dr.Renuka Devi, Civil Assistant Surgeon, Government
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Rajaji Hospital, Madurai. This Court requests the Medical Officer to be
present in person before this Court on 08.11.2023 at 2.15 p.m. Learned
State Additional Public Prosecutor is requested to inform through the
Investigating Officer viz., the second respondent, so that presence of the
Medical Officer is ensured.
4. List on 08.11.2023 at 2.15 p.m. The absentee will continue to be
in the same home ie., St.Patricks Home, Near Serungeri Madam, Bye-pass
Road, Madurai City.'
2.The aforementioned proceedings are tell-tale qua crux and
gravamen of the matter and trajectory the matter has taken thus far.
3.Pursuant to our earlier proceedings dated 06.11.2023
Dr.M.Renuga Devi, DGO, Assistant Surgeon, Obstetrics and Gynecology
Department, Government Rajaji Hospital, Madurai was before us and we
had an interaction with the Doctor. Before we set out what transpired in the
interaction, it is necessary to record that Mr.V.Santhakumaresan, learned
counsel for petitioner, petitioner, petitioner's spouse (Munieswari) (parents
of absentee), Mr.R.Meenakshi Sundaram, learned State Additional Public
Prosecutor instructed by Ms.R.Sangeetha, Inspector of Police, All Women
Police Station, South, Madurai and absentee are in Court.
4.From our interaction with the aforementioned Medical
Officer (Assistant Surgeon), the following points emerged:
'(i) The medical report before us means that there is a viable
fetus but further medical investigation, particularly by a Radiologist, is
necessary; and
(ii) The general health of the absentee is good i.e., mental
health and normal health and there are no abnormalities or deficiencies.'
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5.In the light of the facts and circumstances of the case, we
deem it appropriate to give the following directions:
'(i) The Dean of the Government Rajaji Hospital, Madurai
shall constitute a team of Doctors which will include a Gynecologist, a
Paediatrician or Radiologist/Sonologist, a Psychiatrist and any other
person deemed appropriate by the Dean;
(ii) The aforementioned team is requested to examine i.e.,
medically examine, interact and counsel the absentee as well as her parents
i.e., petitioner and his spouse;
(iii) Ms.B.Poongkhulali [Enrollment No.1373/2009], learned
counsel, with address for service at M-1, Vadhula, 18, Brindavan Street,
Mylapore, Chennai – 600 004, is appointed as Amicus in this matter and it
is open to the team of Doctors to interact with Amicus before giving us a
report; and
(iv) We requisition a report from the team of Doctors, which
shall be placed before us on 17.11.2023 at 02.15 p.m.'
6.List on 17.11.2023 at 02.15 p.m. The absentee will continue
to be in the same home i.e., St.Patricks Home, Near Serungeri Madam, Bye-
pass Road, Madurai City until further orders.'
Proceedings dated 17.11.2023:
M.SUNDAR., J.
and
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R.SAKTHIVEL., J.
ORDER
************
[Order of the Court was made by M.SUNDAR., J.]
Read this in conjunction with and in continuation of earlier proceedings
made in the previous listing on 08.11.2023, which reads as follows:
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR,J.,)
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listings on 13.10.2023 and 06.11.2023 which
read as follows:
13.10.2023:
M.SUNDAR., J.
and
R.SAKTHIVEL., J.
ORDER
[Order of the Court was made by M.SUNDAR., J.]
Captioned 'Habeas Corpus Petition' ['HCP' for brevity) has been filed
in this Court on 10.10.2023.
2. Factual matrix in a nutshell is that petitioner's daughter 'xxxxx' [we
are masking the name of the petitioner's daughter and we shall be referring to
her as 'absentee' for the sake of convenience] was missing from 29.06.2023;
that petitioner lodged a complaint in S.S.Colony Police Station, Madurai City
and the same was taken on file vide FIR No.881 of 2023 [girl missing]; that
fearing illegal detention / unlawful custody by the third respondent [to be
noted, third respondent is a private respondent], captioned HCP has been filed.
3. In the Admission Board, Mr.V.Santhakumaresan, learned counsel on
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record for petitioner, petitioner along with his spouse are present.
4. Learned counsel for HCP petitioner reiterated the aforementioned
facts.
5. Issue notice to official respondents [respondents 1 and 2].
6. Mr.A.Thiruvadi Kumar, learned State Additional Public Prosecutor is
instructed by Ms.M.Perarasi, Sub Inspector of Police, S.S.Colony Police
Station, Madurai. Learned State Additional Public Prosecutor submitted that
absentee has been located and she is in Court. Therefore, this Bench had an
interaction with the absentee and the following points emerged:
i) absentee is friendly with third respondent;
ii) absentee has gone out of her parental home on her own will and
volition i.e., voluntarily;
iii) absentee had gone over to the third respondent's parent's house in
Kerala;
iv) absentee does not want to go to her parental home;
v) absentee, who is 17 years and 3 days short of 1 month as of today,
wants to make a choice about her matrimony on attaining majority but does
not want to stay with her parents; and
vi) absentee has set out certain reasons for not wanting to stay in her
parental home but we refrain from recording all that as we find that it is best
left open;
7. In the light of the narrative thus far, which captures what unfurled in
the hearing today, we find it appropriate to make the following order:
i) absentee shall now be lodged for the present in St.Patricks Home,
Near Serungeri Madam, Bye-pass Road, Madurai City and learned State
Additional Public Prosecutor shall facilitate the same by availing the services
of One Stop Centre, Madurai, which is a Government Agency under the
https://www.mhc.tn.gov.in/judis
Ministry of Women and Child Development, Union of India, funded by
NIRBAYA Fund;
ii) second respondent shall take the absentee for medical examination to
the Government Hospital and obtain a report which shall be placed before us
in the next listing; and
iii) until next listing / until further orders, absentee will remain in
St.Patricks Home, Near Serungeri Madam, Bye-pass Road, Madurai City.
8. List one week hence.
9. List under the cause list caption 'FOR REPORT' on 20.10.2023.'
06.11.2023:
M.SUNDAR, J.
and
R.SAKTHIVEL., J.
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Read this in conjunction with and in continuation of earlier proceedings
made in the previous listing on 13.10.2023.
2. Pursuant to earlier proceedings dated 13.10.2023 and more
particularly sub-paragraph (ii) of paragraph 7 thereat, a medical report in a
sealed envelop was placed before us.
3. This Court, having perused the medical report, is of the view that it
may be necessary to get further inputs from the Doctor, who has given the
medical report viz., Dr.Renuka Devi, Civil Assistant Surgeon, Government
Rajaji Hospital, Madurai. This Court requests the Medical Officer to be
present in person before this Court on 08.11.2023 at 2.15 p.m. Learned State
Additional Public Prosecutor is requested to inform through the Investigating
https://www.mhc.tn.gov.in/judis
Officer viz., the second respondent, so that presence of the Medical Officer is
ensured.
4. List on 08.11.2023 at 2.15 p.m. The absentee will continue to be in
the same home ie., St.Patricks Home, Near Serungeri Madam, Bye-pass Road,
Madurai City.'
2.The aforementioned proceedings are tell-tale qua crux and
gravamen of the matter and trajectory the matter has taken thus far.
3.Pursuant to our earlier proceedings dated 06.11.2023
Dr.M.Renuga Devi, DGO, Assistant Surgeon, Obstetrics and Gynecology
Department, Government Rajaji Hospital, Madurai was before us and we had
an interaction with the Doctor. Before we set out what transpired in the
interaction, it is necessary to record that Mr.V.Santhakumaresan, learned
counsel for petitioner, petitioner, petitioner's spouse (Munieswari) (parents of
absentee), Mr.R.Meenakshi Sundaram, learned State Additional Public
Prosecutor instructed by Ms.R.Sangeetha, Inspector of Police, All Women
Police Station, South, Madurai and absentee are in Court.
4.From our interaction with the aforementioned Medical Officer
(Assistant Surgeon), the following points emerged:
'(i) The medical report before us means that there is a viable
fetus but further medical investigation, particularly by a Radiologist, is
necessary; and
(ii) The general health of the absentee is good i.e., mental health
and normal health and there are no abnormalities or deficiencies.'
5.In the light of the facts and circumstances of the case, we deem
it appropriate to give the following directions:
'(i) The Dean of the Government Rajaji Hospital, Madurai shall
constitute a team of Doctors which will include a Gynecologist, a
https://www.mhc.tn.gov.in/judis
Paediatrician or Radiologist/Sonologist, a Psychiatrist and any other person
deemed appropriate by the Dean;
(ii) The aforementioned team is requested to examine i.e.,
medically examine, interact and counsel the absentee as well as her parents
i.e., petitioner and his spouse;
(iii) Ms.B.Poongkhulali [Enrollment No.1373/2009], learned
counsel, with address for service at M-1, Vadhula, 18, Brindavan Street,
Mylapore, Chennai – 600 004, is appointed as Amicus in this matter and it is
open to the team of Doctors to interact with Amicus before giving us a report;
and
(iv) We requisition a report from the team of Doctors, which
shall be placed before us on 17.11.2023 at 02.15 p.m.'
6.List on 17.11.2023 at 02.15 p.m. The absentee will continue to
be in the same home i.e., St.Patricks Home, Near Serungeri Madam, Bye-pass
Road, Madurai City until further orders.'
2.The events that unfurled in the hearing today are as follows:
i) There is a change of Counsel for the petitioner. In place of
Mr.V.Santhakumaresan and his colleague, Mr.L.Shaji Chellan and his
colleague Mr.M.Barathi have come on record.
ii) Present Counsel on record for petitioner, petitioner Mr.K.Subramani,
petitioner's spouse Mrs.S.Muneeswari, second respondent Ms.R.Sangeetha,
Inspector of Police, All Women Police Station, South, Madurai,
Mr.R.Meenakshi Sundaram, learned State Additional Public Prosecutor
representing respondents 1 and 2 and absentee are present.
3.Pursuant to our earlier order a medical team has been constituted by
the Dean of the Government Rajaji Hospital, Madurai and proceedings signed
on 10.11.2023 bearing reference e.f.vz;.19839/bghJ6/2023 has been e-mailed
to this Court and the same is as follows:
https://www.mhc.tn.gov.in/judis
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4.A memo dated 17.11.2023 from the Amicus and a report from the
team of doctors [examination on 15.11.2023 and 16.11.2023 under cover
of letter dated 17.11.2023] are before us.
5.Ideally the medical professionale from the Government Rajaji
Hospital, preferably a member of the team who examined the absentee
should have been present today but unfortunately that is not the case.
Therefore, we are impleading the Dean and there shall be a directive to the
Dean and one member of the team to be present in the Court in the next
listing.
6.The Dean, Government Rajaji Hospital, Madurai, the District
child Protection Officer, Child Welfare Committee, Madurai District
[Collectorate Campus] and Lifeline Trust Specialised Home, 52, Raja
Ganapathy Street, Chinna Tirupathy, Salem – 636 008 for convenience are
suo motu impleaded as respondents 4 to 6.
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7.In addition to all the parties present today, the Dean of
Government Rajaji, Madurai together with two doctors from the team who
examined the absentee, the District Child Protection Officer, Madurai, the
senior most decision making authority of St.Patricks Home, Near
Serungeri Madam, Bye-Pass Road, Madurai and a senior personnel from
Lifeline Trust Specialised Home, who can apprise and take decisions are to
be present in Court in the next listing. The second respondent to ensure the
presence of a senior personnel from Lifeline Trust Specialised Home
through the Child Protection Officer, Madurai.
8.List on 20.11.2023 at 04.00 p.m.'
Proceedings dated 20.11.2023:
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
(Order of the Court was made by M.SUNDAR, J.)
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listing on 17.11.2023.
2. Today, Mr.R.Sundar, District Child Protection Officer, Madurai
and Ms.S.Suganya, Project Director, Lifeline Trust Specialised Home,
Chinna Thirupathy, Salem District, are present. Others who were directed
to be present will also be here is learned Prosecutor's say.
3. Mr.L.Shaji Chellan, learned counsel for petitioner,
Mr.R.Meenakshi Sundaram, learned Additional Public Prosecutor and
Ms.R.Sangeetha, Inspector of Police, All Women Police Station – South,
Madurai District, are also present. However, we are of the view that third
respondent and his parents also may have to be present in Court.
4. List for a conclusive hearing (peremptory listing) on 28.11.2023
(Tuesday) at 12:00 Noon (In-camera proceedings).'
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3.The aforementioned proceedings/orders shall now be read as an
integral part and parcel of this final order. This also means that the short
forms, short references and abbreviations used in the previous
proceedings/orders shall continue to be used in the instant final order
also for the sake of convenience and clarity.
4.Today, petitioner represented by counsel Mr.L.Shaji Chellan,
petitioner's spouse, Mr.R.Meenakshi Sundaram, State Additional Public
Prosecutor on behalf of respondents 1, 2, 4 and 5 instructed by second
respondent (Ms.R.Sangeetha, Inspector of Police, All Women Police
Station/South, Madurai City), third respondent along with his mother
(Ms.M.Vasantha), absentee, the team of Doctors constituted by
Dr.Srilatha, Residential Medical Officer, Government Rajaji Hospital,
Madurai, Dr.Sumathi, M.D., DMRD, Professor of Radiology,
Government Rajaji Hospital, Madurai and Dr.M.Thangamani M.D.,
D.G.O, Professor, Department of DGO, Government Rajaji Hospital,
Madurai, Mr.R.Sundar, District Child Protection Officer, Child Welfare
Committee, Madurai District (fifth respondent) and Ms.Suganya, Project
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Director from 'Lifeline Trust Specialised Home' [hereinafter 'LTSH' for
the sake of convenience and clarity] in Chinnathiruppathi, Salem (sixth
respondent) are before us. Mrs.Amutharani, Senior Counsellor, One
Stop Centre, Madurai and Sisters from St.Patrick Isaac Home (Sr.Loyola
– Director and Sr.Lourdhu Mary – Programme Co-ordinator) are also
before us.
5.Be that as it may, Ms.Poongkhulali, learned Amicus was before
us with a compilation of case laws qua obtaining legal position (inter-
alia regarding the position of minor in such cases) and case laws
pertaining to reproductive choice.
6.We had the benefit of hearing learned counsel for petitioner,
learned Prosecutor and learned Amicus at length.
7.We also had the benefit of interaction with petitioner and his
spouse (parents of absentee), the Doctors from the team, fifth
respondent – District Child Protection Officer, Ms.Suganya from LTSH,
absentee and third respondent with his mother.
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8.Following points emerged from the aforementioned hearing and
interactions:
(i) Absentee is pregnant, as of today she is good
enough to continue the pregnancy and deliver. The vital
parameters are normal and she has not been diagnosed
with any mental illness. The absentee is clear that she
wants to continue with her pregnancy and deliver;
(ii) Petitioner and his spouse (parents) said they are
ready to embrace the absentee and take her back home but
the absentee is clear that she does not want to go with her
parents. Parents of the absentee submit that they would
embrace her as and when there is change of heart, if that
be so;
(iii) Absentee wants to continue her tie with third
respondent;
(iv) Third respondent and his mother assured that
they will provide whatever support is required and wait for
the absentee to attain majority in September of 2024 after
which the absentee can make her choice;
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(v) From the opinion of the Doctors, we find that (as
alluded to supra), absentee has not been diagnosed with
any mental illness, her thought process is cogent and her
ability to form a judgment is good;
(vi) Ms.S.Suganya, Project Director, LTSH submits
that sixth respondent is a Government aided entity.
Interestingly, it is a Non-Governmental Organization
(NGO) aided by the Government. Proceedings of the
Commissionerate of Social Defence dated 01.12.2020
bearing reference D.dis.Proc.No.10225/D2/2020 wherein
the Government has made proceedings for the sixth
respondent institution LTSH to admit a maximum of 17
girls has been placed before us. LTSH has been
functioning from 2020, it has thus far dealt with 92
children/girls with 56 deliveries. At the moment, out of the
capacity estimated by the Government vide 01.12.2020
being 17, they have 13 inmates and 7 babies;
(vii) LTSH has infrastructure and experience to
house the absentee, take care of her pregnancy/delivery
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and also house her till she attains majority. This would be
a voluntary activity and absentee or no one on her behalf
need to bear any expenses; and
(viii) The fifth respondent assured us that he would
provide requisite and adequate support as and when
required.
9.We now proceed to set out a broad overview of the legal
position in cases of this nature and the same are as follows:
(i) The lead case is V.Krishnan's case [V.Krishnan
Vs. G.Rajan alias Madipu Rajan reported in 1994-1-L.W. 89].
In this case, one parent had made an application for Medical
Termination of Pregnancy (MTP), the same was repelled by
the Court and the most relevant portions of this Judgment
which has been penned after taking into account view points of
several religious scriptures, English and American Laws are
articulated in paragraphs 43, 48 and 51 to 54, conclusion and
directives are contained in paragraph 55 which are as follows:
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'43.Learned counsel for the petitioner places considerable
reliance on the provisions of Sub-section (4)(a) and (4)(b) of Section 3. It is
contended by him that Sub-section (4)(p) is subject to the provisions of Sub-
section (4)(a) and in the case of a minor, it is only the guardian who can decide
whether the pregnancy should be terminated or not. According to him, the
application of Sub-section 4 (b) is excluded by its own language if the pregnant
woman has not attained the age of eighteen. We are unable to accept this
contention. The entire scheme of the Act shows that the provisions thereof can
be invoked only by the pregnant woman. If she happens to be a minor, the
registered medical practitioner, who is approached for terminating the
pregnancy must take care to get the consent of the guardian of the minor in
writing. Sub-section (4)(a) can never be understood as dispensing with the
consent of the pregnant woman if she is below 18 years of age. The provision is
only intended to help the registered medical practitioner to take into account
all the relevant facts and circumstances as set out in Section 3 so as to decide
whether the continuance of the pregnancy will involve any of the risks
mentioned in the Section. For example, Sub-section (3) requires the medical
practitioner to take into account the pregnant woman's actual or reasonably
foreseeable environment while determining the question whether the
continuance of the pregnancy would involve such risk as is mentioned in Sub-
section (2). In the case of a minor, it is, therefore, necessary for the medical
practitioner in order to ascertain the relevant facts under Sub-section (3) to
notify the guardian of the minor and get his written consent.
44.....
45.....
46....
47....
48. The learned Additional Public Prosecutor rightly points out that the
Constitution of India does not make any distinction between a major and a
minor in the matter of fundamental rights. According to him, Article 21 of the
Constitution of India is wide enough to include the right of the girl Sasikala to
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continue her pregnancy and have a child. In Durga Das Basil's "Shorter
Constitution of India", 10th Edition, the following passage is found at page
108:-
''Are there any unenumerated Fundamental Rights under the
Constitution of India? A view is recently gaining ground that even
though a right is not specifically mentioned in Article 19(1), it may still
be regarded as a fundamental right if it can be regarded as 'an integral
part' of any of the fundamental rights specifically mentioned in Article
19(1) as distinguished from the ordinary incidents of a named right.
Consonant with this view, it has been held that the following
unenumerated rights can be enforced under Article 19 even though not
mentioned therein:
(a) Right to travel, which is necessary for exercising one's
fundamental rights of trade or business under Article 19(1)(g).
(b) Right to privacy, as an integral part of the freedom of
movement under Article 19(1)(d).
(c) Right to receive such higher or professional education as is
necessary for carrying on a particular trade or profession, under
Article 11(1)(g).
(d) Right to human dignity.
(e) Right of an accused to a speedy trial."
Again, at page 157 it is said:
"Right of privacy. 1. In Kharak Singh's case (AIR 1963 S.C.
1295), domiciliary visit by the Police without the authority of a law,
was held to be violative of Article 21, assuming that a right or privacy
was a fundamental right derived from the freedom of movement
guaranteed by Article 19(1)(d), as well as personal liberty guaranteed
by Article 21.
2. But such right would not be absolute but must be subject to
reasonable restrictions so that a provision for domiciliary visits would
not be unreasonable if confined to habitual criminals or persons
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having criminal antecedents. Nor would it be violated by posting
Policemen immediately outside the jail.
3. Similarly, wire-tapping of voluntary conversation, for the
purpose of investigation of crime, has been upheld, assuming that
privacy of conversation would be derived from personal liberty' under
Article 21."
51. We are also of the view that the life of the child in the embryo cannot
be taken away for the reasons urged by the petitioner.
52. Jane E.S. Fortin, Lecturer in Law, King's College, London has in his
Article "Legal Protection for the Unborn child" at page 54 in the "The Modern
Law Review", January 1988, (Vol.51, No. 1) said thus:-
"The fact that the unborn child is physically dependent on its
mother prior to birth need not lead to the assumption that it has no
relevant separate existence nor to the assumption that it has no moral
or legal significance."
53. The Hindu law has always recognised the right of a son en ventre sa
mere in the family property. In Mayne's Hindu Law, 12th Edition, page 688
(Para 443) it is said:-
"A son who was in his mother's womb at the time of partition
but was born subsequent to it, is however entitled to reopen the
partition and to receive a share equal to that of his brothers. For, a son
in the womb is in point of law in existence. If the pregnancy is known at
the time, the distribution should be deferred till its result is ascertained,
or the distribution may take place, and a share equal to that of a son
may be provisionally reserved so as to be allotted to the after-born son,
if any. If the pregnancy is not known, and a son is afterwards born, a
redistribution must take place of the estate as it then stands. However, if
the son in the womb is not born alive he has no rights."
54. Section 20 of the Hindu Succession Act, 1956, is in the following
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terms:-
"A child who was in the womb at the time of the death of an
intestate and who is subsequently born alive shall have the same right
to inherit to the intestate as if he or she had been born before the death
of the intestate, and the inheritance shall be deemed to vest in such a
case with effect from the date of the death of the intestate."
CONCLUSION
55. Taking the facts and circumstances of the case into account, we hold
that the prayer of the petitioner cannot be granted. However, we consider it
necessary to issue appropriate directions in the interests of the girl as regards
the care and attention to be given to her during her pregnancy and for the post-
delivery period. We will pass a separate order containing such directions.
Hence, this petition is dismissed.'
(ii) We also noticed 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 wherein a three Judge Bench of Hon'ble
Supreme Court made it clear that the decisional autonomy of
a woman to procreate or not is an integral part of right to
privacy and this Judgment was rendered post
K.S.Puttaswamy. In this X Vs. NCT Delhi, Hon'ble Supreme
Court also made it clear that ultimate decision maker
regarding whether to continue with pregnancy or to terminate
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unwanted pregnancy is the woman concerned.
(iii) In Z Vs. State of Bihar and others reported in
(2018) 11 SCC 572, another three member Hon'ble Bench of
Supreme Court echoed the same views albeit earlier to X Vs.
NCT Delhi.
(iv) In S.Varadarajan Vs. State of Madras reported in
1964 SCC OnLine SC 36, a three member Bench of Hon'ble
Supreme Court had made an observation regarding a minor
aged about 16 to 17 years, who went away on her own
volition from the custody of her lawful guardian that 'she was
not a child of tender years who was unable to think for
herself but, as already stated, was on the verge of attaining
majority and was capable of knowing what was good and
what was bad for her.' In the case on hand, the minor is aged
17 years (Date of Birth is 17.09.2006). Therefore, the
observation made by Hon'ble Supreme Court squarely
applies to the case on hand. More so, in the light of Doctors'
opinion that her judgmental capability is intact and her
cognitive skills are good.
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(v) We also deem it appropriate to usefully refer to a
Full Bench Judgment of this Court in T.Sivakumar Vs. The
Inspector of Police and others reported in 2011 (5) CTC
689, wherein a Full Bench of this Court under some what
similar circumstances made it clear that whether a minor girl
has reached the age of discretion is a question of fact which
the Court has to decide based on facts and circumstances of
each case. In this case, medical report is before us and it says
that she is cogent, not diagnosed with any mental illness and
her cognitive judgmental capability is intact. In this very
T.Sivakumar's case, Hon'ble Full Bench also made it clear
that while a minor girl cannot be allowed to walk away from
the legal guardianship of her parents, equally if she expresses
her desire to the contrary ie., not to go with parents, the
Court cannot compel her to go to the custody of her parents
and instead the Court may entrust her custody to a fit person
or entity subject to her volition.
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(vi) In this case absentee has been apprised of sixth
respondent ie., LTSH and it is her decision stemming from
her own volition to continue the pregnancy, deliver and stay
there till attaining majority.
(vii) We also deem it appropriate to usefully refer to
orders made by another Coordinate Hon'ble Division Bench
in Kajendran's case [Kajendran Vs. Superintendent of
Police and others in H.C.P.No.2182 of 2022] (orders dated
07.07.2023 and 14.08.2023) wherein certain directions were
given vide POCSO in cases of consensual situations.
10.Considering the legal position, after matching and marrying the
obtaining legal position with the factual matrix and giving our anxious
consideration to all aspects of the matter, we make the following order:
(i) The absentee shall now be moved from St.Patricks
Isaac Home to sixth respondent i.e., Lifeline Trust
Specialised Home, No.52, Rajaganapathy Street,
Chinnathiruppathi, Salem-636 008;
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(ii) The absentee shall now be housed in LTSH which
shall take care of her continuation of pregnancy, give her
adequate medical care right up to her delivery, post delivery
care and house her till she attains majority i.e., till
17.09.2024;
(iii) Post 17.09.2024, it is for the absentee to make a
choice of her own;
(iv) While absentee is housed in LTSH, parents ie.,
HCP petitioner and his spouse can visit her if absentee
agrees to see them. In other words, absentee shall not be
compelled to interact with her parents, but if she is willing to
see her parents, LTSH shall permit her parents to see her;
(v) Likewise if third respondent and his mother want
to visit absentee, they will also be permitted if absentee
agrees to see them;
(vi) If the absentee wishes to see or meet anyone else,
permission shall be granted after examining the request on a
case to case basis and if any clarification is required, this
Court can be approached;
(vii) The entire process upto delivery and absentee
attaining majority shall be as per Standard Operating
Procedures (SOP) put in place by LTSH;
(viii) As regards second respondent, we make it clear
that we are not in any manner interceding in investigation
but we make it clear that it is open to the second respondent
to follow Director General of Police circular, dated
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03.12.2022 bearing reference Rc.No.
009464/Crime-4(3)/2022 and carry the matter to its logical
end;
(ix) The Doctors of Government Rajaji Hospital, who
examined absentee, have opined that antenatal care as per
SOP has to be followed and LTSH shall take care of this
facet of the matter; and
(x) The entire medical records of absentee shall now
be handed over to Ms.Suganya of LTSH for further action.
11.Before we drop the curtains and write the formal conclusion,
we deem it appropriate to place on record our appreciation and gratitude
to all concerned. We place on record our special thanks and appreciation
to:
(i) Amicus Ms.B.Poongkhulali, who has done detailed
homework, prepared a compilation of case laws and
travelled from Chennai multiple times, visited Police
Station, Hospital and interacted with all the stake holders
and for the hearing all pro bono;
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(ii) Ms.Suganya, Project Director, LTSH,
Chinnathiruppathi, Salem for having readily accepted the
responsibility;
(iii) The District Child Protection Officer for giving
adequate support;
(iv) The Doctors in the Government Rajaji Hospital,
Madurai for having spent their valuable time both in the
Hospital and in the Court by attending the hearings in short
notice and enlightening this Bench on the medical aspects
of the matter;
(v) Sisters from St.Patricks Isaac Home who have
thus far housed the absentee and absentee is transferred and
housed in LTSH;
(vi) Ms.Amutharani, Senior Counsellor of One Stop
Centre, Madurai, who coordinated this exercise;
(vii) Ms.R.Sangeetha, Inspector of Police, All Women
Police Station second respondent and her team who have
been very diligent and for being live to the situation; and
(viii) Learned Prosecutor who was very fair in the
whole exercise.
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12.With the aforesaid observations and directives, captioned HCP
is disposed of. There shall be no order as to costs.
[M.S., J.] & [R.S.V., J.]
28.11.2023
Index : Yes
Neutral Citation : Yes
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Post Script:
(i) Upload forthwith.
(ii) Though the captioned matter is disposed of, the matter will be
listed under the caption 'FOR REPORT' on the last Court working day
of every calendar month and we requisition a short half a page report
from respondents 5 and 6 about the progress.
To
1.The Commissioner of Police,
Madurai,
Madurai District.
2.The Inspector of Police,
S.S.Colony Police Station,
Madurai District.
3.The Dean,
Government Rajaji Hospital,
Madurai.
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4.The District Child Protection Officer,
Child Welfare Committee,
Madurai District.
(Collectorate Campus).
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
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28.11.2023
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