Madras High Court
Kenzer Yyyy vs The Inspector Of Police on 13 May, 2025
W.P.No.18135 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.05.2025
CORAM
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P.No.18135 of 2025
Kenzer YYYY .. Petitioner
Vs.
1.The Inspector of Police,
AWPS Pallavaram,
Tambaram District,
Tamil Nadu.
2.The Dean,
Chengalpattu Government Medical College Hospital,
G.S.T.Road, Kancheepuram, Chengalpattu,
Tamil Nadu – 603 001.
3.The State,
Rep. by Secretary,
Health Department,
Secretariat, Fort St. George,
Chennai – 600 009. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus directing the 2nd respondent to
medically terminate the pregnancy of the petitioner's daughter M in
accordance with Section 5 of the Medical Termination of Pregnancy Act,
1971 expeditiously.
1/16
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W.P.No.18135 of 2025
For Petitioner : Ms.Deepika Murali
For R1 : Mr.R.Muniyapparaj
Additional Public Prosecutor
For RR 2 & 3 : Ms.M.Sneha
Special Panel Counsel
ORDER
The petitioner seeks for the following relief:
“to pass a Writ of Mandamus directing the 2nd
respondent to medically terminate the pregnancy
of the petitioner's daughter M in accordance with
Section 5 of the Medical Termination of
Pregnancy Act, 1971 expeditiously.”
2.The petitioner pleads that he is the father and natural guardian of
a minor girl named XXXX. The child is aged about 13 years. She is
studying VIII standard.
3.The child is a victim of multiple sexual assault by atleast 13
accused persons. As a result of the assault, the child XXXX has become
pregnant. On coming to know of this fact, the petitioner reached out to
the Child Help Line on 05.05.2025. Officials from the Child Help Line
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immediately visited the residence of the petitioner and recorded the
statement of the child. They also informed the 1st respondent police on
the very day.
4.The petitioner states that his child was originally examined at a
Private Hospital in Pammal. On their directions, the child was sent to
Government Hospital at Chrompet. When the child was at the Hospital in
Chrompet, the 1st respondent police recorded a statement from her.
Subsequently, on the advice of the Hospital at Chrompet, the child was
shifted to the Chengalpattu Government Medical College Hospital at
Chengalpattu. Yet again, a statement of the child was recorded at that
Hospital.
5.Subsequently, the police have registered an FIR in Crime No.17
of 2025 under Sections 5(l), 5(g), 5(j)(ii) read with 6(1) of the Protection
of Child From Sexual Offences Act, 2012, against the accused persons.
The child XXXX is around 28 weeks pregnant. As the child neither has
the physical nor mental capacity to take the pregnancy to its full term, the
petitioner approached the 2nd respondent invoking the Medical
Termination of Pregnancy Act, 1971. The 2nd respondent tendered an
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opinion on 12.05.2025 stating that as the gestational age is more than 24
weeks, they are not in a position to proceed further without an order of
the Court. Hence, this writ petition.
6.When the matter came up for admission yesterday, I heard
Ms.Deepika Murali for the petitioner, Mr.R.Muniyapparaj, Additional
Public Prosecutor for the 1st respondent and Ms.M.Sneha, Special Panel
Counsel for the respondents 2 & 3.
7.Ms.M.Sneha, Special Panel Counsel has produced the
instructions that have been given by The Dean, Chengalpattu
Government Medical College Hospital, Chengalpattu, on 13.05.2025.
The Psychiatrist opinion is that there are no psychological contra
indication for medical termination of pregnancy and that psychologically,
the child is fit at present. The Cardiologist has opined that there is low
risk for anesthesia and surgical intervention for termination. The
Radiologist opinion states that there are no gross anamolies existing and
that the gestational age of the fetus is 27 to 28 weeks with adequate
growth and liquor. The Neonatologist has opined that the fetus has
crossed the period of viability and there is no fetal abnormalities. The
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Final Medical Board opinion states as follows:
“Final Medical Board opinion with OG opinion,
According to the MTP act, pregnancy resulting
from rape is considered to cause grave injury to the
mental health of the pregnant women and thus is a
legal ground for Medical Termination. Hence
termination of pregnancy to be considered.”
8.Ms.M.Sneha, Special Panel Counsel states that the Medical
opinion has made it clear that as the fetus has crossed the period of
viability, they will have to induce the child XXXX to deliver the baby.
Pregnancy having resulted from rape of the child, it would cause grave
injury to mental health of the child XXXX.
9.There are precedents of the Supreme Court and this Court which
point out that where gestational age has exceeded 20 weeks, Courts have
the power to order Medical Termination of the Pregnancy. Reference
may be made to the following judgments:
(i)A Vs. Union of India, [(2018) 4 SCC 75];
(ii)Murugan Nayakkar Vs. Union of India,
[2017 SCC Online SC 1092];
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(iii)Sarmishtha Chakrabortty Vs. Union of
India, [(2018) 13 SCC 339] and
(iv)Meera Santosh Pal Vs. Union of India,
[2017 3 SCC 462].
10.The golden thread, which flows through all these judgments, is
that the Medical Termination of Pregnancy should be granted when
medical reports point out the risk involved in continuing the pregnancy.
The child is a victim of aggravated sexual assault. She is hardly 13 years
old. The report of the expert who constituted the Medical Board point out
that continuation of the pregnancy would result in serious complications
of the health of the child.
11.To a query from the Court as to whether the pregnancy can be
carried to full term, Ms.M.Sneha on instructions from the 2nd respondent
states that the victim being of a short stature, it poses a danger to her life
if the pregnancy is carried on any further.
12.During the course of hearing, Ms.Deepika Murali brought to
my notice that in terms of POCSO Rules, 2020, the petitioner has
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appointed TULIR – Centre for Prevention and Healing of Child Sexual
Abuse, No.74, E.V.K.Sampath Road, Vepery, Chennai – 600 007, as a
support person. The support person was, present in the Court, while
hearing was going on. She made a request through Ms.Deepika Murali to
bring to the notice of this Court certain additional facts which have taken
place in this case. The nature of the case being such as above, I permitted
Ms.Vidya Reddy, Support Person to make her statement.
13.She brought to my notice that Section 164 statement that was
recorded yesterday was not by a Magistrate, but by a member of the
Juvenile Justice Board. She pointed out that though the Police got an
intimation as early as on 05.05.2025, the FIR came to be registered on
07.05.2025. She states that the accused were aged between 17 to 19 years
and as a few of them are below the age of 18 years, they have been
treated as juvenile in conflict with law and the others are to be tried
before the POCSO Court in Chengalpattu. She pleads that appropriate
directions may be given in this behalf to ensure that the justice is
rendered to the child.
14.The act of sexual assault of a woman, by its very nature, reflects
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the sad state in which the society is placed. This is more so in a case
where the victim is said to be aged about 13 years. While she would be
looking forward for a bright future, she is forced to undergo a surgical
procedure to save her life and that of the fetus that she is carrying. The
additional factor in this case is that the writ petitioner himself has been
certified multiple sclerosis to an extent of 90% and UDID certificate has
also been issued to that effect by the Government of India. The petitioner
and his family belong to a strata just above the poverty line. It is the duty
of law to embrace such persons and ensure that they not only enjoy
equality before law, but also equal protection of the law.
15.The statement recorded from the victim should be by a
Magistrate. The concept of Board of Magistrates no longer exist under
the law. In case, a statement is recorded by a person not authorized to
record the same, it could have disastrous consequences. As rightly
pointed out by Ms.Deepika Murali, though a reading of the FIR attracts
the provisions of the Information Technology Act, the police have not
invoked it immediately. It was pursuant to the intervention of
Mr.R.Muniyapparaj, Additional Public Prosecutor that the said offence
was included. For the fact that there have been certain errors committed
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by the investigating officer, I am not inclined to accede to the request of
Ms.Deepika Murali and transfer the investigation to any other authority.
The Tamil Nadu police have enough and more able officers to investigate
a dastardly offence as the present one. The fear of Ms.Deepika Murali
can be addressed by giving appropriate directions while disposing of the
writ petition.
16.Poverty of an individual should not be a ground for denial of
justice. The present case is one such example. The father has pointed out
his suffering from multiple sclerosis. The mother seems to be home
maker. There are no other relatives who are assisting the family. With the
paltry income that the writ petitioner is generating as salary, he has to
take care of three human beings. Such instances are not unknown to the
society. May be, there are several children, like the child involved in the
present case, who on account of the poverty and ignorance could not
come and knock the doors of the Court.
17.Fortunately, this Court has a vibrant legal services authority.
Under similar circumstances, the Delhi High Court has called upon the
legal services authority to step in and assist minor like the petitioner and
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her family. In Minor S. Vs. State and another in W.P.(Crl).No.1231 of
2025 and Crl.M.A.No.11665 of 2025 dated 17.04.2025, that too being a
case of a 15 year old child who was a victim of a rape, Dr.Justice
Swarana Kanta Sharma passed the following directions:
“i. Whenever a minor victim of sexual
assault, who is found pregnant with a gestational
period of pregnancy exceeding 24 weeks, is
produced before the CWC and is referred to a
hospital for medical examination or medical
termination of pregnancy, the concerned CWC shall
forthwith inform the Delhi High Court Legal
Services Committee (DHCLSC) regarding the case,
since in case, medical termination of pregnancy is
sought and consent is given by the victim or her
family, as the case may be, an urgent order from a
Court of law will be required for such medical
termination of pregnancy. The communication shall
include the details of the victim as permitted under
law (without disclosing the identity of the victim),
the order passed by CWC, the copy of the FIR which
is placed before CWC, when the victim is produced
before it, by the IO and any other document relevant
for filing a petition before the competent Court.
ii. Upon receiving such information,
DHCLSC shall immediately take appropriate steps
to assess whether any legal intervention is required,
including the need to approach the competent Court
seeking an order for medical termination of
pregnancy which is beyond 24 weeks in case of a
rape victim where she or her guardian seek medical
termination of pregnancy. This will enable DHCLSC
to take timely action, and where necessary, ensure
that the matter is brought before the competent
court without delay.
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iii. The above direction shall be circulated to
all CWCs functioning in the National Capital
Territory of Delhi and shall be scrupulously
followed.
iv. To conclude, this Court reiterates that, as
directed in the judgment titled Minor R Thr.
Mother H v. State (NCT of Delhi) (supra) dated
25.01.2023, as well as in the judgment titled Minor
L Thr. Guardian J v. State & Anr. (supra) dated
03.11.2023, the medical examination of a minor
rape victim carrying a pregnancy beyond 24 weeks
must be conducted immediately by the Medical
Board of the concerned Hospital in terms of the
MTP Act, and the report be prepared and kept
ready, without insisting the victim to first approach
a Court of law for obtaining an order for medical
examination by the Board.”
18.I am of the view that the procedure that has been adopted by the
Delhi High Court should also be followed in the State of Tamil Nadu
also. This will ensure that the victims of sexual assault are given
appropriate legal advise at the earliest point of time. It would not be out
of place to refer to the second explanation to Section 3 of the Medical
Termination of Pregnancy Act, 1971, which states the anguish caused by
pregnancy to women, who has been a victim of rape, shall be presumed
to constitute a grave injury to the mental health of the pregnant women.
19.In the light of the above, the Writ Petition is ordered on the
following directions:
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(i)The 2nd respondent shall arrange for Medical
Termination of Pregnancy of the petitioner's daughter
XXXX and shall complete the procedure at the earliest.
This being an area of expertise, the procedure that the 2nd
respondent will adopt is entirely within its discretion and
should at all times be informed by the best interests of the
child XXXX;
(ii)The 1st respondent has registered a case in Crime No.17
of 2025 under the provisions of the Protection of Child
From Sexual Offences Act, 2012. The 2nd respondent shall
ensure such steps are taken either by collecting the blood
samples of the child, if born alive or preserve the fetus, if
otherwise, for carrying out any medical test including DNA
test for the purpose of the case;
(iii)The prayer for transfer of investigation is rejected. The
investigation shall be monitored by Mr.Asra Garg, IPS,
Inspector General of Police, North Zone. Mr.Asra Garg,
IPS shall decide the appropriate course of investigation and
if he considers necessary, he shall appoint an investigating
officer and constitute a team of his choice to take up the
matter further;
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(iv)The statement of the victim, not having been recorded
by the Magistrate empowered to do so, the police shall
ensure that the statement is recorded by the jurisdictional
Magistrate;
(v)The alleged perpetrators shall be assessed if they should
be tried by the Juvenile Justice Court or by the Regular
Court;
(vi)A copy of this order shall be sent to the Tamil Nadu
Legal Services Authority for it to do the needful as directed
in this order;
(vii)The child XXXX shall be in the Chengalpattu
Government Medical College Hospital, Chengalpattu, till
31.05.2025. The expenses of the child shall be borne by the
State;
(viii)On discharge from the Hospital, the child will be
produced before the Child Welfare Committee (CWC),
Kancheepuram, and the Child Welfare Committee,
Kancheepuram shall pass orders directing the child to be
kept in a home. CWC shall ensure that appropriate
counselling is tendered for the child XXXX and her
parents. It shall also consider payment of compensation for
the child as per the Rules prevailing and
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(ix)The child having undergone the process of giving
statements three times earlier and fourth time by virtue of
this order, CWC will not record any fresh statement from
the child. No costs.
13.05.2025
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
NOTE: (i)Upload Order Copy on 13.05.2025.
(ii)The 2nd respondent shall act on a web copy of
the order and need not wait for the certified
copy of the order to be issued.
To
1.The Inspector of Police,
AWPS Pallavaram,
Tambaram District, Tamil Nadu.
2.The Dean,
Chengalpattu Government Medical College Hospital,
G.S.T.Road, Kancheepuram, Chengalpattu,
Tamil Nadu – 603 001.
3.The State,
Rep. by Secretary, Health Department,
Secretariat, Fort St. George, Chennai – 600 009.
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4.The Tamil Nadu State Legal Services Authority,
North Fort Road, High Court Campus,
Chennai – 600 104.
5.The Public Prosecutor,
Madras High Court, Chennai.
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V.LAKSHMINARAYANAN, J.
krk
13.05.2025
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