Patna High Court
Abc vs The State Of Bihar on 17 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5960 of 2022
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ABC Daughter of Ram Dayal Sah, Resident of Village - Mubarakpur, P.S. -
Musrigharari, District - Samastipur through her father Ram Dayal Sah, aged
about 34 years, Male, Resident of Village - Mubarakpur, P.S. - Musrigharari,
District - Samastipur.
... ... Petitioner/s
Versus
1. The State of Bihar, through the Chief Secretary, Govt. of Bihar, Patna.
2. The Chief Secretary, Govt. of Bihar, Patna.
3. The Principal Secretary, Department of Home, Government of Bihar, Patna.
4. The Principal Secretary, Department of Health, Government of Bihar, Patna.
5. The District Magistrate, Collectorate, Samastipur.
6. The Superintending of Police, Samastipur.
7. Member Secretary, Bihar State Legal Service Authority, Budh Marg, Opp.
Museum, Cental Revenue Colony, Lodipur, Patna.
8. The Director, All India Institute of Medical Sciences, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Abu Nasar,
Mr. Zeya Ismail,
Mr. Atul Kumar Jha, Advocates
For the Respondent/s : Mr.Binay Kumar Pandey, AC to GP 4
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
CAV JUDGMENT/ORDER
6. 17-05-2022 The petitioner/ABC is a rape survivor who is minor
aged about 16 years has preferred the present writ application
through her father seeking the medical termination of unwanted
pregnancy.
2. The brief facts of the case is that the
victim/petitioner aged about 16 years resided in Mubarakpur
village at Samastipur with her mother, brother and sister while
her father was living in Hyderabad in order to earn his
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
livelihood as daily wager. On 03.03.2022, the victim lodged an
FIR bearing Women PS Case No.13/2022 under Sections 376,
341, 323 and 506 of the IPC and Section 7 of Protection of
Children from Sexual Offences Act at Mahila Police Station,
Samastipur alleging therein that the accused person named in
the FIR abused her sexually for the last many months.
Thereafter, she started keeping unwell with complications like
vomiting, stomachache etc. When the father of the victim
arrived in the village and the family members noticed some
abnormality in the activity of the girl, she disclosed the fact that
she was being sexually abused and raped by the accused person
named in the FIR. A pregnancy test was conducted by the family
members through pregnancy test kit in which she was found
pregnant. The father of the victim went to the house of accused
person on 25.02.2022 to inquire about the incident and the
accused told the victim's father that he would facilitate the
abortion of the victim girl. After registration of the FIR on
03.03.2022, statement of the victim girl was recorded under
Section 164 of the CrPC on 05.03.2022. On 04.04.2022 i.e.,
one month after lodging of the FIR an application under Section
3 of the Medical Termination of Pregnancy Act, 1971 (for
brevity, 'MTP') was filed before the court of learned Additional
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
Sessions Judge-VI-cum-Special Court (POCSO), Samastipur on
behalf of the victim girl for medical termination of the
pregnancy of the victim girl. The learned Additional Sessions
Judge-VI-cum-Special Court (POCSO), Samastipur directed the
Child Welfare Committee, Samastipur to take appropriate action
in the best interest of the victim. In compliance of the aforesaid
order, Child Welfare Committee, Samastipur directed the
Medical Superintendent, Sadar Hospital, Samastipur to
constitute the Medical Board with a direction to submit its
report at the earliest.
3. The report of the Medical Board was produced
before the Special Court through the Child Welfare Committee
vide CWC letter No. 182/22 dated 11.04.2022. The Medical
Board found that the age of the foetus was of 26 + 2 weeks and
opined that if the medical termination is done at this stage, there
is a possibility of ante-portem or post portem haemorrhage of
the victim as well as foetus. Relying upon the opinion of the
Medical Board, learned Special Court (POCSO), Samastipur
rejected the application of the victim vide order dated
12.04.2022 (Annexure-2).
4. Thereafter, the petitioner filed the present writ
application on 20.04.2022 and the Registry of this Court
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
directed for expeditious registration and listing of the case and
upon urgent motion made by the learned counsel for the
petitioner on 25.04.2022, the writ application was ordered to be
listed on priority basis and accordingly, the case came on my
board on 27.04.2022. On 27.04.2022 itself, upon hearing the
submissions advanced on behalf of the learned counsel for the
petitioner as well as State, I directed for constitution of seven
members Medical Board consisting of the following doctors to
examine the victim/petitioner and her foetus at AIIMS, Patna:-
(I) PROF. (DR.) SAURABH VARSHNEY, Director,
A.I.I.M.S., Patna
(II) DR. HEMALI HEIDI SINHA Professor & Head
of Department, Obstertric & Gynaecology
(III) DR. MUKTA AGARWAL Additional Professor,
Department of Obstetrcis & Gynaecology
(IV) DR. PANKAJ KUMAR, Additional Professor &
Head of Department, Psychiatry
(V) DR. LOKESH KUMAR TIWARI, Additional
Professor & Head of Department, Paediatrics
(VI) DR. GITA SINHA, Head of Gynaecology
P.M.C.H.
(VII) DR. RENU ROHATGI, Head of Gynaecology,
N.M.C.H.
5. The Medical Board was requested to examine the
minor petitioner and to submit its evaluation report of the
victim/petitioner and the foetus to this Court on or before 5 th
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
May, 2022 in a sealed cover. On 05.05.2022, on the request of
learned counsel for the parties, the opinion of the Medical Board
was handed over to the leaned counsel for the petitioner and
petition was finally heard on 12.05.2022.
6. Upon perusal of the medical examination report of
the victim/petitioner submitted by the seven eminent doctors in
their respective field including HOD, Psychiatry, AIIMS, Patna,
it appears that the physical examination, psychiatric
examination and mental health evaluation of the victim was
conducted by the doctors who in their medical report recorded
the findings and conclusion which are as follows:-
1. Physical examination was conducted after
assent:
General condition of the victim is fair and is
conscious and oriented. On initial triaging her
psychological categorization was stable. Her vital were
stable. She had mild pallor. On systematic examination
her respiratory, circulatory, neurological and
gastrointestinal system were normal. On abdominal
examination, she had uterine enlargement of
approximately 30-32 weeks pregnancy, fetal heart sounds
are heard. Detailed obstetric examination was done by the
OBG consultants. This is a 16 year old pregnant
adolescent female with high risk pregnancy (teenage)
with mild anemia.
2. Obstetric examination:
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
First day of last menstrual period-petitioner unable to
recall. On abdominal examination, uterus 32 weeks. Fetal heart
sound present. On ultrasonography, a single live intrauterine
fetus of 30 weeks 4 days with cephalic presentation and
estimated fetal weight of 1546 gms.
3. Mental Health Evaluation:
Based on the cross-sectional evaluation, there is no
evidence of any gross abnormalities or pshchopathology
indicative of any significant Mental illness at present. There is
however need for supportive counseling and needful
psychosocial interventions to mitigate the psychological impact
of Trauma.
Conclusion: 16 years old girl with 32 weeks pregnancy
(high risk in view of teen age) with nutritional anemia with fetus
in good condition.
As per the opinion of medical board comprised of
Pediatrician, obstetrician & Psychiatrist Termination is no
medically indicated at this period of gestation. The fetus is alive
and will be live born with complication of pre-maturity. Iron and
calcium supplementation should be given as advised.
Sd/ Sd/ Sd/
Prof. Hemali H. Sinha Prof. Amrita Sharan Prof. Renu Rohtagi
HOD, OBG, AIIMS, Patna. HOD Incharge, OBG HOD, OBG, AIIMS
PMCH, Patna Patna
Sd/ Sd/ Sd/
Dr. Lokesh Tiwari Dr. Pankaj Kumar Dr. Mukta Agarwal
HOD Pediatrics HOD Psychiatry Additional Professor OBG
AIIMS, Patna AIIMS, Patna Member Secretary
Sd/-
Prof. (Dr.) Saurabh Varshney,
Director, AIIMS, Patna Chairman
7. The Medical Board found that the victim/petitioner
is carrying 32 weeks pregnancy and opined that termination is
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
not medically indicated at this period of gestation. The foetus is
alive and will be live born with complication of pre-maturity.
8. Mr. Abu Nasar, learned counsel for the petitioner
submits that in view of the opinion of the Medical Board in
which the doctors have opined that termination is not medically
indicative/viable at this stage of the 32 weeks of pregnancy, he
is not pressing the prayer for medical termination of pregnancy.
However, he alternatively, submitted that the FIR was lodged on
03.03.2022 disclosing the unwanted pregnancy carried by the
victim but the police authority did not inform the Child Welfare
Committee (in short 'CWC'), Samastipur as required under
Section 31(i) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short, 'the J.J. Act'). The J.J. Act casts
statutory obligation upon the police and other authorities to
produce the child in need of care and protection before the
CWC. Similar provision is also there in the Protection of
Children from Sexual Offences Act, 2012 (POCSO). Section
19(6) of the POCSO Act stipulates that the Special Juvenile Unit
or local police shall without unnecessary delay but within the
period of 24 hours report the matter to the Children Welfare
Committee and the Special Court where no Special Court is
designated, to the Court of Sessions, including need of the child
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
for care and protection and steps taken in this regard. Provisions
of Section 19(6) also casts legal obligation on the police
authority to inform the relevant authority immediately after the
police authority came to know that offence under POCSO Act
has been committed. The police authority failed to discharge
their legal obligation casts under the statute and if the
information regarding unwanted pregnancy carried by the
victim/petitioner had been given to the Child Welfare
Committee immediately by the police, the victim would not
have suffered trauma and mental agony of carrying an unwanted
pregnancy and to give birth to a child which is the result of a
crime of rape.
9. In view of the unanimous opinion of the Medical
Board, learned counsel for the petitioner submits that petitioner
is not insisting for abortion. Now, he has submitted that delivery
of child should take place under the supervision of expert
doctors (a) post delivery care of the new born and the mother,
(b) some amount should be paid to the petitioner in addition to
Victims Compensation Scheme, (c) petitioner does not want to
keep the child after delivery, (d) counseling of the
victim/petitioner etc.
10. Mr. Naushad Raza, Chairman, Child Welfare
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
Committee and Ms. Amrita Pritam, Additional Director, Child
Protection Unit, Samastipur were personally present at the
request of the Court, who during course of hearing informed
that between Zero to Six years which may be extended up to 08
years, the new born baby will be kept in Adoption Centre run by
the State Government in collaboration with NGO. Thereafter,
the child will be kept in Children's Home. After 18 years of age,
the child will stay in Care Home where he will be given training
for skill development up to the age of 21 years.
11. In support of his argument, learned counsel for
the petitioner relied upon the judgment passed in the case of Z
vs. State of Bihar & Ors as reported in (2018) 11 SCC 572) and
in the case of YYYY & Anr v. Union of India as reported in
2022 SCC OnLine Ker 1238.
12. I have heard learned counsel for the parties and
perused the opinion of the Medical Board. From perusal of the
opinion of the Medical Board, it is clear that termination of
pregnancy is not medically viable keeping in view the period of
gestation. Learned counsel for the petitioner has rightly did not
press his prayer for medical termination of pregnancy in view of
unanimous opinion of the Medical Board.
13. Taking into consideration the situation which
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
now emerged, the victim/petitioner will deliver the baby after
completing the period of pregnancy, in that situation, in my
opinion, the State authorities/machinaries are required to render
necessary support and help to the petitioner/victim as well as
new born baby.
14. Accordingly, I issue the following directions:-
(i) Ms. Amrita Pritam, Additional Director, Child
Protection Unit as well as Chairman, Child Welfare Committee,
and the Collector, Begusarai are directed to ensure periodical
checkup and safe delivery of child in the Government Hospital
at Begusarai and if any expert medical assistance is needed, the
victim/petitioner shall be taken to specialized hospital available
in the city of Begusarai or nearby.
(ii) The doctors and medical experts are requested to
provide all necessary assistance and facilities in order to
facilitate the safe delivery of the baby in the Government
Hospital or specialized centre.
(iii) The aforesaid authorities are directed to reserve a
separate room for the victim/petitioner and her family members
in the concerned hospital at the relevant time.
(iv) Upon successful delivery of the child the
aforesaid authorities and the concerned hospital shall ensure and
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
see that the new born baby as well as mother are rendered best
medical assistance available in the hospital or expert centre in
order to see that the new born grows as a healthy child.
(v) If mother of the child and her parents do not want
to keep the child after delivery or are not in a position to take
responsibility of the child, in that situation, the State
Government and its agency will have to take full responsibility
of the new born child. The new born child shall be kept in
Adoption Centre duly run by the State Government in
collaboration with NGO and all efforts should be made to make
necessary arrangements for the adoption of the child in
accordance with law.
(vi) Since the petitioner/victim is also a minor, the
Principal Secretary, Department of Health, Govt. of Bihar shall
pay a sum of Rs. 1 Lac in the account of the father of the
victim/petitioner in order to meet the post delivery expenses
including the food, medical expenses and consumables etc. The
amount so released shall be transferred in the bank account of
the father of the victim/petitioner exclusively for her benefit.
15. It is made clear that the aforesaid amount
awarded by this Court is in addition to the entitlement of the
petitioner under the Victims Compensation Scheme framed
Patna High Court CWJC No.5960 of 2022 dt. 17-05-2022
under Section 357A CrPC. Father of the victim/petitioner can
also approach the State Legal Services Authority and or District
Legal Services Authority, if further assistance and or help in this
regard is needed. The counseling shall be provided to the
victim/petitioner regularly before and after the delivery at least
for a period of six months depending upon the mental and
psychological condition of the victim/petitioner.
16. The Secretary, District Legal Services Authority,
Begusarai will co-ordinate with the authorities of the State
Government and shall ensure that the directions issued by this
Court is carried out in the best interest of the victim/petitioner
and the new born.
17. With the aforesaid directions and observations,
this writ application stands disposed of.
(Anil Kumar Sinha, J)
perwez
AFR/NAFR AFR
CAV DATE 12.05.2022
Uploading Date 17.05.2022
Transmission Date 17.05.2022
