Madras High Court

Madras High Court: Abdul Quddhose, J. permitted the termination of pregnancy of 27+ week of a minor child victim of offence under Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) on the recommendations of well qualified doctors, as the victim was observed to not be so mentally strong to be able to withstand the pregnancy and later take care of the child even financially.

The instant case has been filed by the desperate father of a victim girl seeking medical termination of his minor daughter’s pregnancy. The rape victim girl X was impregnated by the accused who has been charged with the offence under sections 5(j)(ii) r/w 6 of POCSO Act.

A team of doctors were nominated vide order dated 14-07-2022 who medically examined the rape victim girl and submitted a feasibility report stating that that the victim girl X is about 28 weeks + 3 days pregnant.

Dr. S. Amutha, DDVL, Joint Director (MTP), Directorate of Family Welfare, Chennai and Dr.Vijaya Murali, Deputy Director (Inspection), Directorate of Family Welfare in open Court and they expressed that it is feasible to terminate the pregnancy of the petitioner’s daughter. The rape victim is mentally weak and not in a position to deliver a child at such a young age.

Dr. Arumai Kannu, HOD of Obstetrics and Gynecologist, Government Thiruvannamalai Medical College Hospital reiterated that it is feasible to terminate the pregnancy of the victim girl even though the gestational period is 28 weeks + 3 days.

Placing reliance on Murugan Nayakkar v. Union of India, 2017 SCC Online SC 1092, it was noted that the Supreme Court allowed termination of pregnancy in the case of 13-year-old child and in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339, termination of pregnancy was permitted even when the gestational age was 26 weeks, in view of the recommendations of the medical board.

The Court observed that while exercising powers under Article 226, this Court has got wider powers than what is prescribed under section 3(2) of the Medical Termination of Pregnancy Act, 1971, which permits the registered medical practitioner to terminate the pregnancy only when the length of pregnancy does not exceed a maximum period of twenty weeks. In the case on hand, the victim girl is 28 weeks + 3 days pregnant. However, considering the fact that the medical report recommends termination of her pregnancy and after giving due consideration to the fact that the victim girl is small statured and is only 13 years old, this Court exercising powers under Article 226 of the Constitution of India has got the powers to take judicial notice of those facts and can permit termination of victim’s pregnancy.

It was also observed that the petitioner is an agricultural laborer and surviving on hand to mouth existence. If the minor victim girl is allowed to deliver a child, not only the victim, but also her parents will suffer. The petitioner has also stated that he came to know about her minor daughter’s pregnancy only after coming to know that she did not get her menses for a long time.

The Court directed respondent 1 “to nominate Team of specialised Doctors on 18-07-2022 who shall terminate the pregnancy of the petitioner’s minor daughter on the very same date. However, after terminating the victim’s pregnancy, the first respondent shall preserve the foetus for carrying out the medical test for the purpose of criminal case pending against the accused for the offence under section 5(j)(ii) r/w 6 of POCSO Act.”

The Court further directed the Child Welfare Committee, Thiruvanamalai District to render all possible assistance both to the victim girl and her parents during the period of their stay in the Hospital.

[K Vijayakumar v. State of Tamil Nadu, 2022 SCC OnLine Mad 3724, decided on 15-07-2022]

Advocates who appeared in this case :

P Sevli, Advocate, for the Petitioner;

B Vijay, Advocate, for the Respondent.

*Arunima Bose, Editorial Assistant has reported this brief.

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