Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: V. G. Arun, J., allowed medical termination of 28-week pregnancy of a 14-year-old girl.

The mother of the victim had approached the Court seeking permission to abort the victim's 28 weeks of pregnancy. Noticeably, the victim herein is a minor girl aged 14 years.

By its earlier order, the Court had directed the Superintendent of Medical College Hospital to constitute a Medical Board of competent medical practitioners to examine the victim and file a report before the Court.

Accordingly, the Medical Board, after examining the child, opined,

“Gestational age by Ultrasound is 27 weeks 5 days and correlated with clinical findings. Anguish caused by the continuation of pregnancy can be presumed to cause a grave injury to the mental health of 14-year-old unmarried girl. Hence Medical Board is recommending MTP.”

In the light of the suggestion of the Medical Board recommending medical termination of pregnancy (MTP) as continuation of pregnancy may cause grave injury to the mental health of the girl, the Court issued the following interim directions:

  • The petitioner is permitted to get the victim girl's pregnancy terminated at a Government Hospital.

  • On production of this order, the Superintendent of the hospital shall take immediate measures to constitute a medical team for conducting the procedure.

  • The petitioner shall file an appropriate undertaking, authorising the medical team to conduct the surgery at her risk.

  • If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment available so that it develops into a healthy child;

  • If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, as may be reasonably feasible, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.

[X v. Union of India, W.P.(C) No.26103 of 2022, decided on 16-08-2022]


Advocates who appeared in this case :

M/S. Babu Paul & Murali Manohar, Advocates, For the Petitioner.


*Kamini Sharma, Editorial Assistant has put this report together.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: On Friday, the SCOTUS decisively overruled not only the landmark ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted the American women a constitutional right to abortion, but also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11, which upheld the Roe ruling. It was held that the Constitution of United States does not confer any right vis-à-vis abortions. With this decision, the authority to regulate abortion was returned to the people and their elected representatives.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision as catastrophic. In a passionate and scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Lamenting upon the rationale behind the overruling, the Judges stated that “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision”

The Judges made some crucial observations highlighting their apprehensions and dismay over the majority decision, which are as follows:

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey understood the difficulty and divisive­ness of the abortion issue and the Bench deciding those cases was aware that Americans have profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded the afore-stated balance. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”.

“The Mississippi law at issue here bars abortions after the 15th week of pregnancy. But under the majority’s ruling, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life”.

  • The dissenting Judges noted that the majority decision would sound a death knell for women who are not financially strong. It was also pointed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for the majority decision is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering.

Either the major­ity does not really believe in its own reasoning. Or if it does, then all rights that have no history stretching back to the mid­ 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

  • “As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it”. Questioning the majority’s use of historical approach in the decision, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship… The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning.

“The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.

  • The dissenting Judges observed that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision making. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”.
  • The Judges questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases, when in the same vein he urged the Court to reconsider decisions like Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6.

“He says, “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” And when we reconsider them? Then “we have a duty” to “overrule these demonstrably erroneous decisions.”  So at least one Justice is planning to use the ticket of today’s decision again and again and again”.

  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. They noted that by overruling Roe and Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority has abandoned stare decisis, a principle central to the rule of law because “Stare decisis” means to stand by things decided.”

The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

  • Regarding majority’s view about unworkability of ‘undue burden’ standard set in Casey, the dissenting Judges opined that general standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution’s broad principles, this Court often crafts flexible standards that can be applied case-by-case to a myriad of unforeseeable circumstances.
  • In the dissenting Judges highlighted that this decision will invite a host of questions about interstate conflicts like –whether a State can bar a woman from travelling to another State to get an abortion etc.

“The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “inter- jurisdictional abortion wars.”

The dissenting Judges remarked that, Roe and Casey continue to reflect, the broad trends in American society. It is true that many Americans, including many women, opposed those decisions when issued and do so now as well. Yet the fact remains that Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. Therefore, the disruption of overturning Roe and Casey will be profound as well. Pointing out that the Mississippi’s Gestational Age Act, does not have any exception for rape or incest, even for underage women, thus the loss of Roe and Casey would be disastrous for women who will have undergo pregnancies resulting from rape or incest.

Finally the dissenting Judges observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. The decision breached a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it placed in jeopardy other rights, from contraception to same-sex intimacy and marriage; and finally, undermining the Court’s legitimacy.

With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent”.

[Dobbs v. Jackson Women’s Health Organisation, 2022 SCC OnLine US SC 9, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a far-reaching decision concerning an American woman’s right to abortion, the Court held that the Constitution of United States does not confer any right vis-à-vis abortions. This judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohib­iting abortion. Roe and Casey arrogated that authority”.

In a separate concurring opinion John Roberts, CJ., agreed with the majority on the point that the rule of viability as propounded in Roe and Casey, should be discarded as the SCOTUS seriously erred in adopting via­bility as the earliest point at which a State may legislate to advance its substantial interests in the area of abortion. “I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense”. He however, also stated that, “None of this requires the dramatic step of altogether eliminating the abortion right first recognized in Roe”.

Facts and Legal Trajectory of the Case

The re-consideration of Roe v. Wade came into the picture when Jackson Women’s Health Organisation [respondents] challenged Mississippi’s Gestational Age Act. The legislation provided that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn hu­man being has been determined to be greater than fifteen (15) weeks.”

The respondents contended before the Federal District Court that Mississippi’s law violated SCOTUS’ prec­edents establishing a constitutional right to abortion, particularly Roe and Casey. The District Court granted summary judg­ment in favor of the respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates SCOTUS decisions forbidding States to ban abortion pre-viabil­ity. The Fifth Circuit affirmed the decision.

The petitioners finally came before the Supreme Court defending the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review.

Majority Observations

The majority opinion was delivered by Justice Samuel Alito in which Chief Justice John Roberts, Clarence Thomas, Brett Kavanaugh, (concurring), Neil Gorsuch and Amy Coney Barrett, JJ., also joined. The majority considered Roe and Casey on following points-

  • The majority deliberated whether the Constitution, if properly un­derstood, confers a right to obtain an abortion. It was observed that Fourteenth Amendment’s refer­ence to “liberty” protects a particular right. However, the Constitution makes no express reference to a right to obtain an abortion, but several con­stitutional provisions have been offered as potential homes for an im­plicit constitutional right. The Court pointed out that “The Bench deciding Casey grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amend­ment’s Due Process Clause, but that theory is squarely foreclosed by the Court’s precedents, which es­tablish that a State’s regulation of abortion is not a sex-based classifi­cation and is thus not subject to the heightened scrutiny that applies to such classifications”.
  • The majority based its next observations on the History and Traditions of the Nation”. It was pointed out that the right to abortion is not deeply rooted in the Nation’s history and tradi­tion and the Due Process Clause pro­tects two categories of substantive rights – rights guaranteed by the first eight Amendments to the Constitution and rights deemed fundamental but are not mentioned anywhere in the Consti­tution. “Historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy”. Citing this reason the majority expressed its reluctance recognize rights that are not men­tioned in the Constitution. “Guided by the history and tradition that map the essential compo­nents of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abor­tion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion”.
  • Furthermore the Court stated that Roe’s analysis of historical basis of right to abortion was faulty. It was pointed out that American law followed the common law until a flurry of statutory restrictions in the 1800s ex­panded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abor­tion a crime at any stage of pregnancy. Thus Roe either ignored or misstated this part of history. The Court observed that instead of seriously pursuing the argument that the abortion right itself has deep roots in history, the supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right- right to privacy. “But the people of the various States may evaluate those inter­ests differently. The Nation’s historical understanding of ordered lib­erty does not prevent the people’s elected representatives from decid­ing how abortion should be regulated”.
  • Finally the majority applied the principles of stare decicis to analyse whether a right to obtain an abor­tion is part of a broader entrenched right that is supported by other precedents. The Court observed that while deciding Roe, none of the decisions cited involved the critical moral question posed by abortion. thus, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way. It was pointed out that doctrine of precedents “restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command”.
  • Terming Roe as egregiously wrong and in collision course with the Constitution from the day it was decided, the Court stated that Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. It was further stated that the scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. Another glaring defi­ciency was Roe’s failure to justify the critical distinction it drew be­tween pre- and post-viability abortions.
  • The argument that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause was also rejected by the Court stating that. This decision concerns the constitutional right to abortion only. Nothing in this opinion should cast doubt on precedents that do not concern abortion.

Concurring Opinion of John Roberts, CJ.,

Taking a middle ground approach, Roberts, CJ., stated that overruling the subsidiary rule is sufficient to resolve this case in Mississippi’s favour. He also pointed out that SCOTUSabortion precedents describe the right as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further not all the way to viability.  He also stated that. “I am not sure, that a ban on terminat­ing a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fif­teen weeks. I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no”.

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case”.

Concurring Opinions of Clarence Thomas and Brett Kavanaugh JJ.,

  • Justice Clarence Thomas’ concurring opinion emphasised on more funda­mental reason why there is no abortion guarantee lurking in the Due Process Clause. He stated that “substantive due process” is an oxymoron that “lacks any basis in the Constitution.” He stated that the Court should reconsider all of SCOTUS’ substantive due process precedents, includ­ing Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6“Because any sub­stantive due process decision is “demonstrably erroneous, we have a duty to “correct the error” established in those precedents. After overruling these demonstra­bly erroneous decisions, the question would remain whether other constitutional provisions guarantee the myr­iad rights that our substantive due process cases have gen­erated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment”.
  • Justice Brett Kavanugh stated that the Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. The Constitution protects un­enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in Amer­ican history and tradition.The Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected repre­sentatives to resolve through the democratic process in the States or Congress—like the numerous other difficult ques­tions of American social and economic policy that the Con­stitution does not address”.

The Dissent

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision to be catastrophic. In a scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Some of their salient observations are as follows-

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey well understood the difficulty and divisive­ness of the abortion issue and the Court was aware that Americans hold profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”. The dissenting Judges pointed out that the majority decision would sound a death knell for women who are not financially strong. It was observed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering. “Either the major­ity does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid­19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other”.
  • Questioning the majority’s historical approach, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges also pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning. “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”. The Judges also questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases when in the same vein he urged the Court to reconsider decisions like
  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. “The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

Finally the dissenting Judges simply observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent.

Decision

With their afore-stated observations the majority concluded that Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted in­terest in “protecting the life of the unborn”. These legitimate interests provide a rational basis for the Gestational Age Act.

[Dobbs v. Jackson Women’s Health Organisation, 2022 SCC OnLine US SC 9, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

An order of the Special Court (POCSO) had been challenged whereby the application for discharge came to be rejected by the Special Court.

Factual Matrix

Informant aged 17 years got acquainted with accused who was residing in the area of Christ Church and friendship blossomed into love. The accused promised to marry her and later called her to his house and demanded sexual favour from her.

In view of the promise of marriage, the informant consented to sexual intercourse and the said act was repeated multiple times. In fact, every time she consented to sexual intercourse only for the reason that the accused had promised to marry her. Later, she realized that she was pregnant.

When the mother of the informant realized that the applicant was pregnant, she aborted her foetus and on the said allegations, an FIR against the applicant and accused was filed.

Analysis and Decision

High Court noted that under Section 227 of the Code of Criminal procedure a duty is cast on the Judge to apply his mind to the material on record and if on examination of the record, he does not find sufficient ground for proceedings against the accused he must discharge the accused.

“For framing charge mere suspicion is not enough.”

The applicant is accused of committing offence under Sections 315 and 316 of the Penal Code, 1860.

Ingredients of Section 315 of the IPC are as under:

(i) Woman must be pregnant.

(ii) Before the birth of any child the accused does any act

with the intention of preventing that child from being born alive or causing it to die after its birth.

(iii) Such act must not be done in good faith for the purpose of saving the life of the mother.

In terms of Section 316 IPC such an act is treated as amounting to culpable homicide.

The applicant was Doctor by profession and according to him he was a Child Specialist and possessed the certificate under the Bombay Nursing Home Registration Act, 1949 authorizing him to run a nursing and maternity home.

Therefore, trial court was justified in holding that the applicant was authorized to run a nursing home and maternity home.

As per the record of medical examination, the hymen of the victim was ruptured.

The Bench also noted that the past pregnancy can be determined on account of permanent changes in the body of a woman, in fact the mother of the victim stated that she was pregnant of six months.

The Court stated that, there was a delay of more than 1 year in lodging the FIR. However, the aspect of delay could be considered during trial. In such cases, women generally do not come forward to lodge a report soon after the incident.

“…victim was less than 17 years when the intercourse happened. After her alleged termination of pregnancy, she attained majority.”

Hence, even at the prima facie stage it could be said that delay was properly explained, and Trial Court did not commit any error in dismissing the application for discharge of the applicant. [Balwantrao Haridasrao Bhise v. State of Maharashtra, 2022 SCC OnLine Bom 828, decided on 7-4-2022]


Advocates before the Court:

Shri. Sudarshan J. Salunke, Advocate for the applicant Shri. S. D. Ghayal, APP for the respondent/State

Case BriefsHigh Courts

Karnataka High Court: N S Sanjay Gowda, J., directed the Medical Practitioners to terminate the pregnancy in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971.

The facts of the case are such that the petitioner was subjected to rape when she was a minor; thereby the crime was registered by the Athani police station. The petitioner’s request for termination of her pregnancy was not entertained in view of the fact that the length of pregnancy was more than 24 weeks. Hence instant petition was filed seeking for a writ of mandamus to the respondent 2 to medically terminate the pregnancy of the petitioner who is now a major.

The Court further directed that a Medical Board be constituted comprising of Gynecologist, a Pediatrician and a Radiologist or Sonologist and a Psychiatrist and directed the Board to render an opinion as to whether continuation of pregnancy would constitute a grave risk to the physical and mental health of the petitioner vide order dated 29-11-2021. The Medical Board, thus advised that the pregnancy of the petitioner is required to be terminated as continuation of the pregnancy would endanger physical and mental health of the petitioner.

The Court observed that the petitioner is a student studying in 2nd year PUC and her mother is eking out of her livelihood as an agriculturist as her father is no more and she has been raised by her mother alone. As the petitioner is still studying and is being raised by a single parent, as affirmed by the psychiatrist, continuation of the pregnancy would definitely constitute grave risk to the mental and physical health to the petitioner.

The Court held “this is an extraordinary case which requires a direction to be issued to the 2nd respondent for terminating the pregnancy of the petitioner. The 2nd respondent shall ensure that the Medical Practitioners terminate the pregnancy in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971 forthwith.”[Kumari V v. State of Karnataka, WP No. 104672 of 2021, decided on 30-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Sangamesh S Ghulappannavar

For respondent: Mr. V S Kalasurmath

Foreign LegislationLegislation Updates

After the United States Supreme Court declined the request of urgent stay of Heartbeat Act, 2021, the New Abortion Law comes into force in Texas on September 1, 2021.

 

Key highlights of the Act are:

  • The Heartbeat Act, 2021 bans abortions if there is a fetal heartbeat that can be detected. It has been in controversy as it bans most abortions after about six weeks of pregnancy as per the medical experts (Act has not specified the weeks).
  • The Heartbeat Act provides that any physician planning to perform an abortion has to check whether the unborn child has a detectable heartbeat. Then if a fetal heartbeat has been detected by the physician, the physician may not knowingly perform or induce an abortion on a pregnant woman.
  • In cases of medical emergencies, an exception has been provided under the Act. However, it will be the decision of the physician to determine what qualifies.
  • A civil liability for violation or aiding or abetting violation can be raised by private citizens. Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
  • performs or induces an abortion in violation;
  • knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise.
  • The private citizens can be awarded injunctive relief to prevent the defendant from breaking the law and statutory damages for about $10,000 for each abortion, as well as costs and attorney’s fees through the law suit.
  • The lawsuit must be filed within four years of the abortion.

*Tanvi Singh, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a significant decision which can have major repercussions on a woman’s choice to abort in the United States, the full bench of SCOTUS, with a ratio of 5:4, declined to block the Texas law which imposes a near complete ban on abortions. The majority consisted of Amy Coney Barrett, Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ.

The Texas Law on Abortion: The instant matter revolved around Senate Bill-8[1] which went into effect on 01-09-2021

  • The legislation puts an embargo on the doctors from performing abortions if they can detect a fetal heartbeat, including the cardiac activity that normally occurs at roughly the sixth week of pregnancy[2].
  • The law excludes the patient from being sued.
  • One of the chief highlights of the legislation is that it delegates the responsibility of the enforcement of the prohibition to the private persons and allows them to bring lawsuits against anyone who provides or aids or abets an abortion – the clinics, doctors and even a cab driver taking a patient to the abortion clinic can become a defendant.
  • Anyone who brings a successful suit can collect atleast $10,000 from the person who is found to have infringed the law.

The Legal TrejectoryOn May 19th 2021, the Governor of Texas signed the law and it was immediately challenged in the court. After the District Court’s denial to the defendants’ motion of dismissal on Aug. 25, they went to the U.S. Court of Appeals for the 5th Circuit. The Court of Appeals granted the defendants’ request to put the district-court proceedings, on hold, and denied the challengers’ request to expedite the appeal, thereby setting the stage for the challengers to seek emergency relief in the Supreme Court.[3]

Contentions: The State of Texas argued that neither they nor their executive employees possess the authority to enforce the Texas law either directly or indirectly.  Furthermore, it is not clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law

Per contra, the applicants stated that the Texan law infringes the constitutional right of a woman to obtain an abortion during the first stage of pregnancy and the delegated enforcement of the law on the private persons appears to be a safeguard to protect the State from responsibility for implementing and enforcing the regulatory regime.

Abortion Rights in the United StatesIn the landmark decision of this Court in Roe v. Wade, 1973 SCC OnLine US SC 20, it was held that a pregnant woman’s fundamental right to choose to have an abortion without excessive governmental restrictions, is part of her Right to Privacy and therefore protected by the US Constitution.

Decades later, the SCOTUS in Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 upheld the former decision but placed the “undue burden standard” on the right.

 Observations: On behalf of the Majority, Justice Samuel Alito observed that an applicant must carry the burden of making a “strong showing” that it is likely to succeed on the merits, that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is con­sistent with the public interest. He noted that the applicants in the instant matter have raised “complex and novel anteced­ent procedural questions”, but they have not carried the aforestated burden. Examining the argument presented by the State of Texas, the Majority refused to issue a stay order on the impugned law. Justice Alito however clarified that this order is not based on any conclusion about the constitutionality of Texas’ law.

Dissenting Opinions: Chief Justice John Roberts along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan filed their opinions.

Chief Justice Roberts, considering the contentions raised by the applicants and terming the Texas law to be “unusual, but unprecedented”, observed that he would grant preliminary relief to preserve the status quo before the law went into effect, so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.

Justice Breyer observed that delegation as provided in the impugned law, threatens to invade a constitutional right, and the coming into effect of that delegation will still threaten imminent harm.

Justice Sotomayor noted that, “The Court’s order is stunning”. In a scathing dissent, she stated that the Majority have decided to “bury their heads in the sand” silently consented in a State’s enactment of a law that flouts nearly 50 years of federal precedents. “The Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women.”

Justice Kagan noted that the Court’s swift disposal of the matter “greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf”.

[Whole Woman’s Health v. Austin Reeve Jackson, No. 21A24, decided on 01-09-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

[1] Senate Bill 8

[2] SCOTUS Blog, Texas Abortion Ban

[3] Refer fn. 3

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., observed that If an HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of Penal Code, 1860.

Appellant was convicted by the trial court under Sections 376/313/307 of Penal Code, 1860.

Appellant was found guilty of raping his stepdaughter and since the appellant was found to be infected with Human Immunodeficiency Virus (HIV Positive) and was convicted for an offence punishable under Section 307 of IPC — attempt to murder.

Trial Court also observed that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.

Analysis, Law and Decision

Conviction for Rape — offence punishable under Section 376 of IPC

Whether there is any doubt that the appellant is guilty of committing an offence punishable under Section 376 IPC?

Considering that the prosecutrix gave varied statements at various points of time and had changed her stand on oath. The testimony of the prosecutrix could not be considered as wholly reliable and the trial court erred in proceeding on the said basis. However, Court also denied accepting that she was a wholly unreliable witness.

Further, in view of the above Court stated that it would be unsafe to rely on the testimony of the prosecutrix without any corroborative evidence and hence solely on her testimony, the appellant cannot be convicted.

Bench made another observation that,

in the instant case, there is unimpeachable corroborative evidence that the petitioner had raped the prosecutrix. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that the appellant was the biological father of the abortus.

Repeatedly Raped

It is also material to note that the prosecutrix had in the first instance, when she was brought to the Community Care Centre, reported to the nurse that her stepfather had been repeatedly establishing physical relations with her and had been sexually abusing her in front of her siblings.

Even the medical report recorded:

“Repeated Rape by HIV positive stepfather after the death of mother suffering from HIV/AIDS in Jan 2011. Patient was overdue by one week in April 2011 when she was given an injection to get back her periods back. She bled with clots and pieces. UPT done showing pregnancy positive result.”

High Court concurred with the decision of the trial court that the evidence obtained in the present case clearly established beyond any reasonable doubt that the appellant had engaged in sexual intercourse with prosecutrix without her consent and had committed an offence punishable under Section 376 IPC.

Conviction for causing miscarriage – offence punishable under Section 313 IPC

Whether it is established that the appellant is guilty of committing an offence punishable under Section 313 of the IPC?

Trial Court had held that the appellant was guilty of causing miscarriage to the prosecutrix by administering her pills. It is relevant to note that though the prosecutrix was in Sneh Sadan when she was allegedly administered pills by the appellant and the same was allegedly informed to doctors immediately, no action was taken by any of the doctors in this regard.

Bench stated that there is no material to indicate as to what pills were administered to the prosecutrix. Although three medical doctors were examined, none of them mentioned that in their opinion the prosecutrix‘s miscarriage was induced by the said pills.

Hence, the Court stated that there was no description of the pills allegedly administered to the prosecutrix. There is nothing on record to remotely indicate as to what was the substance that was allegedly administered to the prosecutrix.

Court was of the view that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage. Therefore, the appellant‘s conviction for committing an offence under Section 313 of the IPC could not be sustained.

Conviction for an attempt to murder – offence punishable under Section 307 IPC

Bench did not concur with the view that the appellant was guilty of an offence punishable under Section 307 IPC for several reasons.

Firstly, that the import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity. This is because the culpable act under Section 307 of the IPC does not cease to be one if the victim of such an act has also consented to the same.

Secondly, the trial court had drawn support for its conclusion by mentioning that several countries prosecute cases of transmission of HIV and non-disclosure of HIV status. However, the court had not examined the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status as general offences.

In cases of actual transmission where an HIV Negative person acquires the said disease as a result of engaging in any sexual activity with an HIV Positive partner, the offender is prosecuted for causing bodily harm.

In certain cases where an HIV Positive person fails to disclose his status and engages in any sexual activity, he/she may be prosecuted for sexual assault as in such cases, the consent of the other person to engage in sexual intercourse is vitiated and the sexual act can be construed as one without consent.

In cases of sexual assault or rape, it is widely accepted that the HIV Positive status of the offender is an aggravating factor to be considered while sentencing the offender.

Thirdly, on a plain reading of Section 307 of IPC, an offence under Section 307 IPC is not made out.

Section 307 of the IPC punishes any act which is done by a person with such intention or knowledge and under the circumstances that by that act cause death, the persons committing such act would be guilty of murder.

Bench observed that clearly, in the facts of the present case, the appellant had not raped the prosecutrix with an intention of causing her death.

According to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his stepdaughter (as allegedly disclosed by him in his disclosure statement).

It is relevant to note that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in the normal course of nature to cause death; or in all probability, it would cause death.

The assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which in all probability would result in the death of a healthy partner is not established. In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease.

In the given circumstances, the decision of the Trial Court is largely based on surmises and impressions, without analysis of any scientific data to assume that sexual intercourse by an HIV positive patient would in all probability lead to the demise of his partner.

Fourthly, the appellant was medically examined and there is no evidence to indicate that he was a carrier of Herpes Simplex Virus. Thus, there is no evidence that the appellant would have transmitted the said disease to the prosecutrix.

Lastly, this Court is of the view that the Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable.

In Supreme Court’s decision of Mr ‘X’ v. Hospital ‘Z’: (1998) 8 SCC 296, a case was considered where the respondent hospital had disclosed that the appellant was HIV positive to his fiancé. As a result of such disclosure, the appellant‘s marriage to his fiancé was called off. Appellant instituted an action to recover damages on the ground that the information regarding his HIV positive status was required to be kept secret under medical ethics and was disclosed illegally. The appellant pleaded that since the hospital had breached its duty to maintain confidentiality, they were liable to pay damages to the appellant.

“…the reasoning that unprotected sexual engagement by an HIV positive person, who is aware of the nature of his disease, can be termed as a negligent act, which he knows is likely to spread the infection of a disease that endangers life and is thus, liable to be punished under Section 270 of the IPC is persuasive and cannot be faulted.”

Court opined that even if the Trial Court was of the view that it would not be apposite to frame charges under Section 270 of the IPC, the same did not necessarily warrant that charges be framed under Section 307 of IPC.

In view of the above, the impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 376 of the IPC was upheld.

Punishment for offences under Sections 313 and 307 of IPC was set aside. [Sabhajeet Maurya v. State (NCT of Delhi), 2020 SCC OnLine Del 1525, decided on 26-11-2020]

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States: While looking into the validity of Louisiana’s Act 620 laying out certain laws for abortion, the 9 Judge Bench of the Court with a ratio of 5:4, held that Louisiana’s Act 620 imposes a burden on access to abortion just as severe as that imposed by the nearly similar Texas law invalidated in Whole Woman’s Health v. Hellerstedt, 579 US (2016), therefore the legislation is unconstitutional. The majority comprised of John Roberts, CJ., Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor, JJ.

As per Louisiana’s Act 620, “any doctor who performs abortions to hold active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced.”

The impugned Act defines ‘active admitting privileges’ as being ‘a member in good standing’ of the hospital’s medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.” This legislation was challenged by five abortion clinics and four abortion providers for being unconstitutional as it imposed an undue burden on the right of their patients to obtain an abortion. The plaintiffs prayed for the issuance of a temporary restraining order followed by a preliminary injunction to prevent the law from taking effect. Previously, the District Court had declared Act 620 as unconstitutional on its face and preliminarily enjoined its enforcement. However, the Fifth Circuit Court reversed the decision of the District Court.

Perusing the trajectory of the case and contentions raised by the plaintiffs, the majority reversing the decision of the Fifth Circuit Court observed that, the impugned legislation and the facts of the case are very similar to an earlier decision of this Court i.e. the Whole Woman’s Health case where the Texas law on abortion was challenged.

The majority further referred to its decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, wherein it was held that unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore constitutionally invalid. It was noted that in issues identical to this instant case, the Courts must independently review the legislative findings upon which an abortion-related statute rests and must weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. Examining in detail the approach taken by the District Court to ascertain the unconstitutionality of the Act 620, the majority seemed satisfied with the conclusion drawn by the District Court and held that, “because Louisiana’s Act 620 imposes a burden on access to abortion just as severe as that imposed by the nearly identical Texas law invalidated four years ago in Whole Woman’s Health case it cannot stand under principles of stare decisis.”

The dissenting opinion was delivered by Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch, JJ., who observed that the majority had misused the principle of stare decisis. [June Medical Services v. Stephen Russo, 2020 SCC OnLine US SC 4 , decided on 29-06-2020]      

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J. while allowing the present petition with regard to termination of pregnancy, stated that,

“…petitioner has been impregnated by an unknown person, consequent to her forced promiscuous physical relations.”

Petition by the present petition sought appropriate directions for termination of her pregnancy.

It has been stated in the petition that petitioner was brought to Pali (Rajasthan) by one of her relatives and handed over to Jannat Bano who runs a brothel. Petitioner was brought in without her consent and forced to work as a sex worker.

Further it was averred by the petitioner that consequent to her coitus with one of the hundreds unknown, she had been impregnated.

With a conception of about 20 weeks when petitioner approached medical practitioner for termination of her pregnancy, they flatly refused, citing that the pregnancy was of more than 20 weeks.

Bench, with a view to ward off possibility of pressure or coercion, deemed it expedient to record petitioner’s statement, wherein petitioner stated that she had been forced in fornication by Jannat Bano against her wishes.

Adding to the above, she stated that a year ago she had conceived and the termination of pregnancy was facilitated and financed by Jannat Bano. But at this time, she was note permitted by Jannat Bano to get rid of her pregnancy and instead wanted the petitioner to deliver the baby os that he/she can be either used or sold for money.

Petitioner also asserts that she wants to get rid of the sex racket and lead a respectable life.

Court stated that, medical termination of pregnancy is permissible for purpose of protecting the victim, from the trauma of being ravished, coupled with the fact that the baby to be born will remain with her and continue to remind her of the agony she has suffered during her confinement in brothel.

It was thus observed that,

“…abortion is imperative, so that petitioner can settled in life and the baby does not emerge as a snag in her possible peaceful life.”

If the child in womb is allowed to be born, his/her mental agony will be no less. He/she will always be reminded of petitioner’s past and the fact that his/her paternity is not known, will continue to throb his/her heart and hammer his/her mind and soul.

Court also opined that, petitioner’s mental agony is comparable to a victim of rape.

Thus, in view of the above, petition is allowed and Superintendent of Umaid Hospital, Jodhpur is directed to carry out the medical termination of petitioner’s pregnancy. [Muskan v. State of Rajasthan, 2020 SCC OnLine Raj 396, decided on 09-04-2020]

Case BriefsHigh Courts

“Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven”

Madhya Pradesh High Court: The instant petition was contemplated by S.K. Awasthi, J., in which the petitioner who was the father of the rape victim sought termination of pregnancy for his 14 years old daughter.

The unfortunate facts were that a girl about 14 years old was raped and because of the alleged crime, she got pregnant. The girl was 22 weeks pregnant and as per the reports she was fit for termination of pregnancy.

The Hospital in its report submitted that pre-anesthetic & medical checkup and opinion of consultant Anesthesia and Medicine, Psychiatry was required in case if the medical method of termination failed and surgical intervention was required, however, the case was suitable for termination of pregnancy under the Medical Termination of Pregnancy Act, 1971.

The counsel for the petitioner Amit Dubey submitted that the report by the competent hospital reflected that abortion could have been carried out with the permission of the Court. The relevant statutory provisions i.e. Sections 3 and 5(1) of Act, 1971, stated when pregnancies were to be terminated and one of the clauses was, ‘where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health’; as the girl was very young the counsel argued that the pregnancy might ruin her mental health and there was a risk to the life of the girl. It was further contended that the Act of 1971, also provided for an explanation clause i.e., ‘Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.’

The counsel relied on Murugan Nayakkar v. Union of India, 2017 SCC OnLine SC 1902, where the Supreme Court granted termination of pregnancy to a 13-year-old girl who was a victim of rape and sexual abuse, the Supreme Court had held that, “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.”

The Court observed that while interpreting the provisions of Section 5 of the Act of 1971, it was to be borne in mind that principle that the section must be construed as a whole whether or not one part was a saving clause and similarly elementary rule of construction of section was made of all the parts together and that it was not permissible to omit any part of it; the whole section must be read together. Hence, the termination was granted on the said grounds.[Ritika Prajapat v. State of M.P, 2019 SCC OnLine MP 1687, decided on 18-07-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Fateh Deep Singh, J. allowed the bail application on the ground that trial was not going to finish in near future. 

The facts of the case were that a decoy woman patient who was pregnant was sent for abortion purposes and on the asking of the accused who demanded Rs 12,000, Rs 4000 was paid as advance and balance was to be paid on next day. In pursuance of this settlement, it was alleged that the petitioner gave one tablet to the lady patient to consume and another tablet was placed in her vagina to facilitate abortion.  Thus the case against the petitioner was lodged. 

Abhishek Singh, counsel for the petitioner contended that petitioner was behind the bars for more than six months and that there was no medical evidence to show that the petitioner had facilitated abortion of pregnancy which as per the own stand of the prosecution was on account of willingness of the alleged patient and neither there was any recovery of tablet from the vaginal area nor any medical report to establish abortion on that account and nature of tablet. It was further argued that the trial was not likely to be concluded in the near future, hence prayed for the grant of bail application. 

Baljinder Virk, counsel for the state opposed the grant of bail on the grounds of the heinousness of crime and seriousness of allegations. 

High Court opined that as petitioner was behind the bar for more than six months and a debatable issue arises over the applicability of offence for which the petitioner has been hauled up or are cognizable or non-cognizable and the fact that the trial is not likely to be concluded in near future, thus no purpose will be served by retaining the petitioner in jail. Thus the bail application was allowed to satisfaction of the chief judicial magistrate. [Gogi Rani v. State of Haryana, 2019 SCC OnLine P&H 1019, decided on 31-05-2019]

Hot Off The PressNews

As reported by media, Louisiana House of Representatives passed a bill that would prohibit abortion after the detection of an embryonic heartbeat, which can occur as early as six weeks from conception, often before a woman even realises she is pregnant.

The bill has come as a direct challenge to the United States Supreme Court Judgment in Roe v. Wade, 1973 SCC OnLine US SC 20 that legalises a Woman’s right to terminate her pregnancy.


[Source: The Wire]

Case BriefsHigh Courts

Bombay High Court: The Bench of V.M. Deshpande, J. dismissed an appeal challenging the judgment and order of Additional Sessions Judge whereby the appellant was convicted for offences punishable under Sections 376 and 506 IPC along with Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.

Appellant was accused of committing the offence of rape and sexual assault on a mentally-retarded minor girl victim after which she became pregnant. After the victim’s pregnancy came to light, she had to undergo an abortion and subsequently a case was filed against the appellant. For the said offence he was tried and convicted by the Additional Sessions Judge and sentenced to suffer imprisonment. Aggrieved thereby, appellant challenged the said judgment in the present appeal on various grounds.

One of the grounds contended by R.M. Patwardhan, Advocate for the appellant was that the DNA report should not be accepted as there was no reason for the medical officer who conducted abortion of the victim’s pregnancy to preserve the aborted foetus for DNA testing in absence of registration of offence against anybody.

Rejecting appellant’s contention as meaningless, the High Court noted Dr Kanchan Gadhe’s presence of mind and commitment towards her duty and opined that preservation of foetus was not unnatural as she knew that abortion was conducted on the minor unmarried girl. Furthermore, relying on Mukesh v. State (NCT of Delhi), 2017 (6) SCC 1, the Court observed, “the DNA report or scientific method to determine the paternity or sexual assault is firmly established. The only challenge for it can be set up that there occurred tampering with the blood sample of the accused at any stage.” Since there was no such challenge in the present case, the DNA report was accepted. Not finding any infirmity in the impugned order, the court dismissed the appeal. [Shaktiman v. State of Maharashtra, 2019 SCC OnLine Bom 139, dated 29-01-2019]

Case BriefsHigh Courts

High Court of Himachal Pradesh: While deciding a writ petition, a Division Bench comprising of Dharam Chand Chaudhary, J. and Vivek Singh Thakur, J. allowed the abortion of a 32 week developed foetus on the ground that it was risky for the petitioner to complete the normal period of pregnancy and deliver child on the due date.

The petitioner, aged 19 years, having mild to moderate mental retardation, approached the Court for seeking a direction to the Medical Superintendent, Kamla Nehru Hospital for Mother and Child, Shimla to arrange for abortion of a foetus in her womb. The Court gave a direction for conducting medical examination of the petitioner by a medical board. The report of the medical board revealed that there were major complications in the growth of the foetus in petitioner’s womb and the vaginal delivery of the same would cause danger to the life of petitioner as well as the baby. The medical board was of the opinion that the petitioner should go for premature delivery with surgical intervention because if pregnancy is allowed to continue up to its normal tenure, the head size of the foetus will increase further and in that event the surgery is going to become more complicated, besides causing more risk to petitioner’s life.

The Court perused the material available on record including the medical opinion of the board constituted and relied on the Supreme Court’s decision in WP (Civil) No. 17 of 2017, (decided 16-01-2017). The Court was of the view that the continuation of pregnancy would endanger the physical and mental health of the petitioner. The risk of termination of her pregnancy was within the acceptable limits. The relief sought in this writ petition, was also covered by Section 3(2)(i) of the Medical Termination of Pregnancy Act, 1971. Although the pregnancy was at an advance stage of 32 weeks, however, having regard to the danger to the life of the petitioner and expert opinion that the foetus may not survive to extra uterine life, the Court granted permission to the petitioner to terminate the pregnancy. The petitioner had every right to take all steps necessary to preserve her own life against the avoidable dangers to it. Accordingly, the petition was allowed and directions were given to the respondent to arrange for the termination of pregnancy of the petitioner. [Geeta Devi v. State o f H.P., 2017 SCC OnLine HP 1574, order dated 17.10.2017]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ  allowed a 13-year-old rape survivor to terminate her 32-week-old pregnancy after considering the medical report filed by the board of doctors of J J hospital Mumbai constituted by the Court.

The Mumbai-based rape survivor, a student of class seven had sought permission to abort the foetus. The Court directed the hospital authorities to terminate her pregnancy on September 8, 2017.

The Medical Termination of Pregnancy (MTP) Act prohibits abortion of a foetus after 20 weeks of pregnancy.

Source: PTI

Case BriefsSupreme Court

Supreme Court: The bench of SA Bobde and L Nageswara Rao, JJ allowed a 26-year-old woman, who is in 25th week of pregnancy, to terminate her pregnancy after her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infant’s death during or shortly after birth. The medical board’s report said that the condition of the foetus was also dangerous for the mother’s life.

Noticing that the fetus is without a skull and would, therefore, not be in a position to survive, the Medical Board said that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioner’s life is involved if she is allowed to undergo termination of her pregnancy. The Court, hence, said that it was in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. [Mamta Verma v. UOI, WRIT PETITION (CIVIL) NO.627 OF 2017, decided on 09.08.2017]

Case BriefsSupreme Court

Supreme Court: Acting upon the report of the Medical Board at KEM Hospital and Medical College, Mumbai, constituted to medically examine the petitioner, a rape survivor, the Court said that that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Court, hence, made an exception and held that it is permissible to allow the petitioner to abort the 24 week-old foetus in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. As per Section 5 of the Act, the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.

On 22.07.2016, the bench comprising of JS Khehar and Arun Mishra, JJ. had directed the Maharashtra Government to set up a medical board to examine the rape survivor who sought permission to terminate her 24 week old foetus and the medical examination was directed to be conducted on 23.07.2016. The Medical Board had advised against the continuation of pregnancy and had noticed that in view of severe multiple congenital anomalies, the fetus is not compatible with extra-uterine life and that the pregnancy might endanger the health of the petitioner. [Ms. X. v. Union of India, 2016 SCC OnLine SC 745, decided on 25.07.2016]