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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1/42
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.
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
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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
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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,
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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, 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.'
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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.,
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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.'
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.
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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
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].
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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:
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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, 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.
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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.
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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:
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'(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 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
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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
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:
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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
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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;
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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, 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
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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
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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 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,
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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 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,
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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
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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:
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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
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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.
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
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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).'
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
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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 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.
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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.
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
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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;
(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
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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 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
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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
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
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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 having criminal
antecedents. Nor would it be violated by posting Policemen immediately
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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
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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 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.
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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 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
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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.
(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
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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.
(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
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to sixth respondent i.e., Lifeline Trust Specialised Home, No.52,
Rajaganapathy Street, Chinnathiruppathi, Salem-636 008;
(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;
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(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 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
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the stake holders and for the hearing all pro bono;
(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.
Sd/-
Assistant Registrar(RTI)
// True Copy //
08/12/2023
Sub Assistant Registrar(CS )
ps/vvk
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.
4.The District Child Protection Officer,
Child Welfare Committee,
Madurai District.
(Collectorate Campus).
5.The Additional Public Prosecutor,
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Madurai Bench of Madras High Court,
Madurai.
Copy to
The Section Officer, Criminal Section,
Madurai Bench of Madras High Court, Madurai.
( FOR REPORT)
+1 CC to M/s.L.SHAJI CHELLAN, Advocate ( SR-53710[F] dated 29/11/2023 )
28.11.2023
AMS/08.12.2023 42P 8C
Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023
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