Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: Alok Mathur, J. allowed a writ petition which was filed by the petitioner working as Lecturer (Hindi) in Rajkiya Balika Inter College, Hardoi. She was aggrieved by the order whereby her application for maternity leave from 18-11-2018 to 16-5-2019 had been rejected on the ground that she had previously availed maternity leave which ended on 18-5-2018, which was a period less than 2 years and hence was not entitled for the same holding that Maternity Benefits Act, 1961 Act (1961 Act) does not contain any such stipulation regarding the time difference between the first and second child for the grant of maternity benefits.

Counsel for the petitioner submitted that petitioner after expecting a child had applied for maternity leave for a period of 174 days which was duly sanctioned and the petitioner gave birth to a baby boy on 29-1-2018, but unfortunately the newborn child passed away due to cardio respiratory arrest on 30-1-2018, just a day after his birth. The petitioner again conceived for the second time and applied for maternity leave for a period of 24 weeks from 18-11-2018 to 16-05-2019, which was rejected. It was contended that the said order would run contrary to the mandatory provisions of the 1961 Act.

Standing counsel, on the other hand, has submitted that the impugned order is in conformity with the provisions of Rule 153(1) of the Financial Handbook Volume II to IV where a restriction has been placed for grant of maternity benefits prior to 2 years having lapsed from the date of expiry of the last maternity leave granted under the Rule. It has further been submitted that the provisions of Financial Handbook volume II to IV would apply to the facts of the present case rather than the provisions of the Maternity Benefits Act, 1961.

The Court reproduced the relevant provisions of 1961 Act and opined that the perusal of the aforesaid provisions of 1961 Act thus indicate that a woman would be entitled to give notice in writing for grant of maternity benefit and on receipt of notice the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit. The 1961 Act does not contain any such stipulation of the time difference between grant of maternity benefit for the first and second child as stipulated in Rule 153 (1) of the Financial Handbook. Section 27 of 1961 Act categorically provides that the provisions of 1961 Act shall have effect notwithstanding anything inconsistent therewith contained in any other law whether made before or after coming into force of 1961 Act.

The Court further reproduced judgment of Municipal Corpn. of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224 and various provisions of the Constitution for the finding the source and power to legislate with respect to the Maternity Benefit Act, 1961 were discussed. Consequently, the Court was of the opinion that the Maternity Benefit Act 1961 has been enacted by the Parliament on a subject which finds mention in entry 24 of list III, and it was totally within its competence to make such an enactment.

Lastly relying on Anshu Rani v. State of U.P., 2019 SCC OnLine All 5170, it was reiterated that once the provisions of the Maternity Benefit Act, 1961 has been adopted by the State of U.P. then the said Act of 1961 would apply with full force irrespective of the provisions contained in the Financial Handbook which is merely an executive instruction and would in any case be subsidiary to the legislation made by the Parliament.

The writ petition was allowed and the respondents were directed to grant maternity benefit to the petitioner in terms of the Maternity Benefit Act 1961.

[Satakshi Mishra v. State of U.P., 2022 SCC OnLine All 595, decided on 18-08-2022]


Advocates who appeared in this case :

Anurag Shukla, Abhishek Misra, Ishit Mishra, Advocates, Counsel for the Petitioner;

Ram Pratap Singh Chauhan, Advocate, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case seeking grant of medical termination of pregnancy by a 16-year-old rape victim (‘petitioner’), Yashwant Varma J., granted termination of 28+ weeks foetus, after going through a report prepared by the Medical Board constituted by AIIMS, which recommended the same. The Court, however, directed the foetus to be preserved by AIIMS for DNA testing for the purpose of criminal case pending against the perpetrator.

The petitioner, a 16-year-old victim of rape approached the Court for the medical termination of her pregnancy. The foetus is stated to be beyond 28 weeks old. The report by the Medical Board constituted by AIIMS, recommended medical termination of her pregnancy.

As the petitioner has crossed the 24 week of pregnancy threshold as laid down under the provisions of the Medical Termination of Pregnancy Act, 1971, termination would be impermissible. Thus, the petitioner filed the instant petition.

The Court relied on X v. Government of NCT of Delhi in WP (C) No. 10638 of 2022 decided on 19-07-2022 wherein it was held that if the petitioner was forced to go through with the pregnancy despite the same having been caused on account of the incident of sexual assault, it would permanently scar her psyche and cause grave and irreparable injury to her mental health. The Court cannot visualize a more egregious invasion of her right to life as guaranteed by Article 21 of the Constitution.

The Court thus directed the petitioner to appear before Medical Board along with her brother as well as a responsible official to be deputed by the Child Welfare Committee [CWC] and undertake the requisite procedure for the medical termination of the pregnancy of the petitioner.

The Court further directed AIIMS to preserve the terminal foetus for DNA testing which would be required for the purposes of the criminal case which is pending.

[R v. Government of NCT of Delhi, 2022 SCC OnLine Del 2628, decided on 26-08-2022]


Advocates who appeared in this case :

For petitioner- Ms. Hetu Arora Sethi, Mr. Rahul Jain, Ms. Kavita Nailwal and Mr. Arjun Basra, Advocates

For Respondent- Mr. Mehak Nakra, ASC(C), GNCTD for R-1.

Mr. Satya Ranjan Swain and Mr. Tanveer Oberoi, Advs. for AIIMS and Inspector Dinesh Kumar, P.S. New Friends Colony


*Arunima Bose, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: While deciding the instant bail application of a 20-year-old boy charged with abetment of suicide of a 16-year-old girl, the Single Judge Bench of Bharti Dangre, J., observed that in order to invoke offence under Section 306, Penal Code, 1860 i.e., abetment to commit suicide; it is necessary to establish its ingredients, i.e., instigation or incitement, for the deceased to commit suicide. The sudden reaction of a 19-year-old boy to the news of pregnancy may fall short of it.

Facts of the case: A 16-year-old girl (now deceased) was pursuing her education in the 11th standard. She told her mother about her developing relationship with the applicant with whom she met on Instagram. The mother of the deceased alleged that the applicant was harassing her daughter as a result of which she was disturbed. On 03-03-2021 the girl hanged herself in the bedroom pursuant to which the mother lodged the complaint.

During the investigation, the deceased's WhatsApp chat with the applicant was revealed which consisted of conversations referring to a pregnancy kit and deceased's apprehension regarding a possible pregnancy. The chats also appeared to reveal the applicant's alleged indifferent and abusive attitude towards the deceased's predicament.

In due course of the investigation, the deceased's autopsy was carried out which did not reveal any sign of pregnancy and cause of death was ascertained as ‘asphyxia due to hanging'.

Observations

  • Perusing the facts and details revealed during the investigation, the Court observed that the deceased had missed her periods by two weeks and thus she took a pregnancy test, which revealed that she was pregnant. Therefore, she established contact with the applicant via WhatsApp and when he expressed an indifferent approach, the girl rife with anxiety, unfortunately decided to take the extreme step of ending her life.

  • The Court further noted that the investigation has been completed. It was pointed out that the postmortem report clearly revealed that the deceased was not pregnant and anxious with thought of conceiving, and on noticing the applicant's unexpected response, she made up her mind to commit suicide.

  • The Court also noted that the applicant was 19 years old when the unfortunate incident took place. The Court further noted the proximate relationship shared between the applicant and the deceased and the applicant's alleged indifferent reaction to the news of pregnancy.

Conclusion and Decision: With the afore-stated observations and considering the young age of the applicant, the Court decided that his incarceration upon the completion of investigation is unwarranted. “He shall ultimately face the consequences of his acts, when he shall face the trial.”

  • The Court also clarified that its observations are restricted only for the purposes of determining the instant application and the Trial Court should not be influenced by these observations.

  • The applicant was granted bail with conditions attached.

[Kunal Chabu Doke v. State of Maharashtra, BAIL APPLICATION NO.3550 OF 2021, decided on 17-08-2022]


Advocates who appeared in this case :

Shantanu Phanse, Advocate, for the Applicant;

S.V. Gavand, APP, Advocate, for the State-Respondent No.1;

Jaideep Thakker, Advocate, for the Respondent No.2.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where protection was sought by a Muslim couple anticipating danger from the girl’s family (‘respondent 4 and 5′), Jasmeet Singh, J. directed State to grant protection to them as the girl (‘petitioner 1′) has attained puberty and willfully consented to the marriage with the boy (‘petitioner 2′).

The petitioners, Mohammedans by religion, were in love with each other and got married in accordance with Muslim rites and rituals by Maulana Imtiyaz of Jokihat Masjid, District Aauriya, Bihar. Respondents 4 and 5 are parents of the girl and opposing the marriage of the petitioners and have registered an FIR under Section 363 of Penal Code, 1860 (‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) against petitioner 2 . The instant petition was filed seeking directions for protection to the petitioners.

Petitioner 1 submitted that she was regularly beaten by her parents at home and the parents tried to forcibly marry her to someone else. It was also submitted that petitioner 1 is pregnant and the petitioner 1 and 2 are expecting a child together. The state submitted that the petitioner was only 15 years and 5 months on the date of the marriage, thus justifying the charges alleged.

The Court noted that as per Mohammedan Law, a girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise a minor girl.

Reliance was placed on Imran v. State of Delhi, (2011) 10 SCC 192 to prove the point that POCSO is an Act for protection of children below 18 years from sexual abuse and exploitation and will apply to Muslim law. However, the Court clarified that this case cannot be relied on, in terms of the facts of the present case.

The Court clarified stating “There was no marriage between the prosecutrix and the accused. In fact, in that case sexual relationships were established prior to marriage. Post establishing the physical relationship, the accused had refused to marry the prosecutrix. It was on this basis that POCSO had been applied to the facts of that case. The object of the POCSO Act states that the Act is aimed at ensuring the tender age of the children and ensuring they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect children under the age of 18 years from sexual abuse.”

The Court further noted that present is not a case of exploitation but a case where the petitioners were in love, got married according to Muslim laws, and thereafter, had physical relationships, thus giving no strength to the charges alleged under POCSO.

The Court also observed that in the present case, the environment in the house of petitioner 1 is hostile towards her and her husband as per allegations levelled by petitioner 1. Thus, the petitioners being lawfully wedded to each other cannot be denied the company of each other which is the essence of the marriage. If the petitioners are separated, it will only cause more trauma to the petitioner 1 and her unborn child.

The Court directed respondent 1 to 3 to ensure safety and protection of the petitioners.

[Fija v. State Govt NCT of Delhi, 2022 SCC OnLine Del 2527, decided on 17-08-2022]


Advocates who appeared in this case :

Mr. Arvind Singh, Mr. AK Mishra, Advocates, for the Petitioner;

Ms. Rupali Bandhopadhyay, ASC with Mr. Akshay Kumar, Mr. Abhijeet Kumar, Advocates with ASI Harvinder Kaur, PS Dwarka North, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where very serious allegations are made and 16 members from the same family are arrested, an under-trial woman prisoner sought bail, Anoop Kumar Mendiratta, J. grants interim bail for a period of three months since the petitioner is a pregnant woman and is expecting the delivery. It is premised on the principle that every pregnant female deserves the dignity enshrined under Article 21 during motherhood. However, the Court mandated that refusal is permissible in cases of high security risk.

FIR was registered under Sections 363/367/368/326/307/506/34/120-B Penal Code, 1860 (‘IPC') on the statement of injured/victim Raman who had performed marriage with Menka (another victim/injured) against the consent of her parents on 21-12-2021. However, family members of the wife of the complainant abducted the victim and his wife on 22-12-2021 and after brutally beating him up, his private part was amputated with an axe, and he also received stab injuries. Further, the complainant was thrown in a drain from where he was rescued by his brother and was admitted to AIIMS Trauma Centre.

Thus, presently 16 members of the same family have been arrested while 3 of them are still absconding and 2 other family members have also been charge-sheeted without arrest. An application was preferred on behalf of the petitioner under Section 439, Criminal Procedure Code (‘CrPC') read with Section 482 CrPC for grant of interim bail for a period of six months.

The Court noted that the expected date of delivery of the petitioner is 25-08-2022 and the delivery facilities are not available in Central Jail Dispensary and the patient was referred to Deen Dayal Upadhyay Hospital for delivery.

The Court noted that however it is required to give due weightage to the aspects like nature and gravity of the offence and the impact of such an offence committed on the society for consideration of bail. But pregnancy of a woman is a special circumstance which needs to be appreciated, as giving birth to a child while in custody, would not only be a trauma to the mother but also create an everlasting adverse impact on the child, whenever questioned about his birth.

It further noted that every pregnant female deserves the dignity enshrined under Article 21 during motherhood. The Court is expected to take note of the interest of a child, who is not expected to be exposed to prison, until and unless there is a grave danger in releasing the petitioner on bail.

Relevant Provisions

The proviso to Section 437(1) CrPC provides that the condition of not releasing a person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable, if such person is under the age of sixteen years or is a woman or sick or infirm subject to such conditions as may be imposed.

Rule 1459 of Delhi Prison Rules. 2018 provides that as far as possible (provided the prisoner has a suitable option) arrangements for temporary release (or suspension of sentence in the case of a casual offender) will be made to enable a prisoner to deliver child in a hospital outside the prison. Only when there is high security risk in the case of any particular woman prisoner, the facility to deliver child outside the prison shall be denied.

Thus, the Court held that since the petitioner is a pregnant woman and is expecting the delivery, she deserves to be enlarged on interim bail for a period of three months from the date of release on furnishing a personal bond in the sum of Rs.20,000/- (Rupees Twenty Thousand Only) with one surety in the like amount to the satisfaction of the learned Trial Court/MM/Duty MM.

[Kajal v. State, Bail Application No. 2286 of 2022, decided on 18-08-2022]


Advocates who appeared in this case :

Mr. Rakesh Kr. Pant, Advocate, for the Petitioner;

Mr. Laksh Khanna, APP for State with SI Jarnail Singh, PS Rajouri Garden, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Meghalaya High Court
Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J. allowed a petition where a man was arrested under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) for allegedly having ‘consensual sex’ with his minor wife. 

Petitioner 1(husband) and 2 (wife) were in a love relationship since the year 2018 and in the year 2019 started living together as husband and wife with the knowledge and consent of the family members of petitioner 2. The relevant fact being that petitioner 2 was about 16 years old at that time. In October 2019 she stated complaining of weakness with bouts of vomiting following which she was taken to the Hospital. After conducting the required examination on 22-10-2019 it was confirmed that the petitioner 2 was pregnant for 16 weeks 4 days. As is duty bound, the Medical Officer informed the petitioner 1, the petitioner 3 and the uncle of the petitioner 2 that they need to report the matter to the police station as the petitioner 2 is still a minor.  

Consequently, an FIR was lodged by petitioner 3 and a case under Section 5(j) (ii) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 was registered. Petitioner 1 was arrested after the investigation. 

Counsel for the appellant led this Court to the statement of the petitioner 2 made under Section 161 Criminal procedure Code, 1973 and has submitted that the petitioner 2 has confirmed that she was in a relationship with the petitioner 1 since 2018 and has had physical relationship with him on several occasions and that too, with her consent, coupled with the fact that they were now staying together as husband and wife. She reiterated this in her statement under Section 164 CrPC and even in her evidence before the Special Court. It was also further submitted that in the meantime the petitioner  1 and 2 have solemnized their marriage on 30-05-2022 on petitioner having attained the age of majority. 

The Court remarked that the procedure for trial under the POCSO Act is in accordance with the Code of Criminal Procedure, 1973 and as such, the High Court, if it chooses to interfere with any proceeding under the POCSO Act can do so by exercising its inherent power under Section 482 of the CrPC. 

The Court looking at the facts at hand observed that in the event it is apparent that a young couple are in a relationship where love is the deciding factor even to the extent that it has culminated into a marriage relationship, it may be the case that in such a relationship even if the girl involved is legally a minor, if she has the capacity to procreate and her age is perhaps ranging from about 16 to 17 years and more but below 18 years, it would not shock their conscience if hypothetically speaking such a girl enters into a marriage relationship on her own free will, as oppose to a child of about 12 or 13 years voluntarily entering into a marriage relationship. 

The Court relied on Skhemborlang Suting v. State of Meghalaya, 2022 SCC OnLine Megh 66 and Ranjit Rajbanshi v. State of W.B., 2021 SCC OnLine Cal 2470 and stated that as the present case is at the evidence stage, this Court can exercise its inherent power to ensure ends of justice is met. 

It would be an injustice to separate or to divide a well knitted family unit. 

Thus, the Court was convinced that the petitioners have made out a case for quashing of the said proceedings in Special (POCSO) Case and consequently the petition was allowed.  

[Kwantar Khongsit v. State of Meghalaya, 2022 SCC OnLine Megh 393, decided on 10-08-2022] 


For the Appellants : A. Syiem 

For the Respondents : H. Kharmih 


*Suchita Shukla, Editorial Assistant has reported this brief. 

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Sathish Chandra Sharma, CJ and Subramonium Prasad, J refused termination of pregnancy to an unmarried woman whose pregnancy arose out of a consensual relationship after holding that her case was clearly not covered by any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 as on the date of the judgment.

The Petitioner aged 25 years is a 24 weeks pregnant unmarried woman. Her pregnancy arose out of consensual relationship that eventually failed. It was her case that she cannot give birth to the child due to her financial incapacity to raise and handle the child along with mental incapacity to be a mother in order to secure her future from social stigma.

The Court noted that a perusal of Section 3(2)(a) Medical Termination of Pregnancy Act, 1971 provides that the Medical Practitioner can terminate the pregnancy, provided the pregnancy does not exceed 20 weeks. Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks.

Further, it was noted that a perusal of Section 3(2)(b) Medical Termination of Pregnancy Act, 1971 provides that the said sub-Section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003. Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which permits termination of pregnancy up to 24 weeks, reads as under: –

“3-B. Women eligible for termination of pregnancy up to twenty-four weeks.

The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) section 3 of the Act, for a period of up to twenty-four weeks, namely:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c)change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

The Court observed that the petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case.

A noteworthy mention was made by the counsel for petitioners regarding non-inclusion of unmarried women under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 being violative of Article 14 of the Constitution of India. The Court, however, observed that whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court.

Noting that granting interim relief to the petitioner now would amount to allowing the writ petition itself, the Court held that in light of the law prevailing on the date of the passing of the order, Rule 3B Medical Termination of Pregnancy Rules, 2003, stands, and thus “this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute.”

This order, however, stands modified by the Supreme Court vide order dated 21-07-2022 wherein it has been held that woman cannot be denied right to safe abortion only on the ground of her being unmarried.

[X v. Principal Secretary, 2022 SCC OnLine Del 2171, decided on 15-07-2022]


Advocates who appeared in this case :

Dr. Amit Mishra, Advocate, for the Petitioner;

Ms. Hetu Arora Sethi, ASC for GNCTD with Mr. Arjun Basra, Advocate for R-1 Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor, Ms. Kunjala Bhardwaj, Advocates for R-2, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: A.S. Chandurkar and Urmila Joshi-Phalke, JJ. allowed a writ petition which was filed by a minor victim of sexual abuse requesting to terminate her pregnancy.

The petitioner contended that she is in custody of Observation Home, Amravati as she had committed offence under Section 302 of the Penal Code, 1860. A crime was also registered as petitioner was not traceable on the basis of report lodged by her mother under Section 363 of the IPC. During the investigation it was revealed to the Investigating Officer that petitioner is pregnant and, therefore, offence was registered under Section 376 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. She is also victim of sexual assault and, therefore, another crime was registered on the basis of report lodged by her mother.

It was further contended that she is from economically weak section and, therefore, she is unable to up-bring the child. Due to said incident she had suffered and is suffering because of sexual abuse. She has undergone the agony and she will go through the same in future also. She sought permission from the Court to direct respondent 2 to terminate her pregnancy which is of 12 weeks.

The Court noted that in the present case the petitioner is unmarried and she is not only a victim of sexual abuse but also lodged in a Observation Home. The Court opined that she has already undergone the trauma due to the sexual assault on her and she is also suffering mentally as she is also charged for the offence punishable under Section 302 of the IPC. The Court agreed that she cannot be forced to give birth to a child. The Supreme Court has also observed several times that it is the right of woman to have reproductive choice. She has a choice to give birth to the child or not.

The Medical Board also opined that the pregnancy could be terminated if petitioner is a minor girl. She is subjected for sexual assault. It is difficult for her to carry said pregnancy under above circumstances.

The Court was of the view that declining such permission to the petitioner would be tantamount to compelling her to continue with her pregnancy which in the circumstances will not only be a burden on her, but it would also cause grave injury to her mental health. The petition was allowed with several directions.

[A v. State of Maharashtra, 2022 SCC OnLine Bom 1361, decided on 27-06-2022]

Advocates who appeared in this case :

Ms S.H. Bhatia, Advocate, for the Petitioner;

Ms N.P. Mehta, Asstt. Government Pleader, for the Respondent/State.

*Suchita Shukla, Editorial Assistant has reported this brief.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): After forceps delivery, a woman lost her control over passing urine and stool due to the negligence of a doctor, the Coram of R.K. Agrawal (President) and Dr S.M. Kantikar (Member) upheld the decision of State Commission with respect to compensation of Rs 8 lakhs.

The complainant (referred to as the patient) during pregnancy was under Antenatal care of Dr Vartika Mishra (OP). It was alleged that the OP conducted her forceps delivery, which resulted in 4th degree tear in the perineum (area between the vaginal canal and anus), further, the OP stitched the skin only, without muscle repairs, hence the patient lost her control over passing the urine and stool.

Thereafter, the complainant consulted another doctor who diagnosed ‘poor tone’ and ‘very poor anal squeeze’. Later the patient consulted various doctors but did not get full recovery in fact the patient was deprived of marital happiness for 2 years and lost her chance for normal delivery in future.

On being aggrieved, the Consumer complaint was filed before the State Commission and claimed Rs 35 lakhs as compensation.

State Commission partly allowed the complaint and directed the OP to pay a sum of Rs 8,00,000.

Being aggrieved with the above, an instant first appeal was filed.

Analysis and Decision

Commission held that there was negligence during outlet forceps delivery.

In addition to the above, there was a failure of duty of care during post-delivery period and medical record of the OP including Dr Abha Singh failed to convince the Commission about proper post-partum care.

“…the patient was complaining repeatedly about pain in the suture site but both the doctors have simply prescribed medicines, but ignored or not carefully examined the suture site for induration or infection, surprisingly advised to use ‘coconut oil with kapoor’ for about 6 months.”

Coram noted that the patient was a young woman and in primi gravida (first pregnancy). She, after delivery, for her sufferings ran from pillar to post to various hospitals in Raipur and Mumbai.

While concluding the matter, the Commission held that, the patient developed 4th-degree perineal tear after forceps delivery, which squarely attributed to the failure of duty of care, thus, medical negligence. Also, she did not get post-partum care as per accepted reasonable standards.

Therefore, State Commission’s order was affirmed. [ Dr Vartika Mishra v. Rachana Agrawal, FA No. 948 of 2015, decided on 25-2-2022]


Advocates before the Court:

Appeared at the time of arguments through Video Conferencing

For the Appellant : Mr. Vaibhav Agnihotri, Advocate Mr. Dhruv Chawla, Advocate

For the Respondents : Mr. Mohammad Sajid, Advocate

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

Meghalaya High Court: W. Diengdoh, J. allowed a petition which was filed praying to quash the criminal proceedings pending in the Court of the Special Judge (POCSO) under Section 5(j)(ii)/6 POCSO Act, 2012.

Counsel for the petitioners submitted that the petitioner 1 and petitioner 2 were husband and wife and in course of their relationship, the petitioner 2 got pregnant and accordingly, the petitioner 1 took her to Nazareth Hospital, Shillong for medical checkup. However, the hospital authorities on confirming that the petitioner 2 was pregnant and that her age was about 17 years at the relevant time had accordingly informed the police of the matter. An FIR was lodged and prayer for suo moto case was registered and investigation was made by the said informant. On completion of the investigation, the charge sheet was filed finding a well-established prima facie case against the petitioner 1 and he was accordingly made to stand trial before the Court.

Counsel for the petitioner further submitted that both petitioners were husband and wife and were living together as husband and wife with the knowledge of the family members from both sides and it was a fact that out of the cohabitation between the couple, a male child was born to them and none of the family members wished to proceed with the case against petitioner 1. It was further submitted that this was not a case where a heinous crime of rape has been committed and thereafter, a subsequent compromise has been arrived at between the parties, but as stated above is a consequence of a relationship between two young persons who were in love.

The Court relied on the judgments of the Ranjit Rajbanshi v. State of W.B., 2021 SCC OnLine Cal 2470, Vijayalakshmi v. State, 2021 SCC OnLine Mad 317, Gian Singh v. State of Punjab, (2012) 10 SCC 303 and Ramgopal v. State of M.P., 2021 SCC OnLine SC 834 and agreed that,

“…Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions…” and again, it was said that “…the touchstone for exercising the extra-ordinary power under section 482 Cr.P.C. would be to secure the ends of justice…”.

The petition was thereby allowed and FIR, proceedings and orders against the petitioner were set aside and quashed[Shembhalang Rynghang v. State of Meghalaya, 2022 SCC OnLine Megh 67,decided on 23-3-2022]


For the Petitioner/Appellant(s): Mr K. Ch. Gautam

For the Respondent(s): Mr K. Khan, Sr. PP. with Mr S. Sengupta, Addl. Sr. GA., Mr H. Kharmih, Addl. Sr. GA., Mr A. H. Kharwanlang, GA.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: In a claim of maternity benefit by a contractual employee, the Division Bench of Rajiv Shakdher and Talwant Singh, JJ., expressed that, The Maternity Benefit Act, 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage.

Whether an ad hoc employee is entitled to maternity benefit for a period that spills beyond the tenure of the contract?

Respondent was offered an ad hoc basis as Senior Resident and on the basis of the said offer, respondent joined the petitioner-hospital, her contract was renewed quite a few times.

Later, respondent applied for emergency maternity leave as her pregnancy had become complicated and via the said communication, the petitioner averred that she was suffering from antepartum haemorrhage and was advised bed rest by her gynaecologist. The apprehension expressed in this letter was that the respondent may be required to undergo an emergent caesarean section procedure, to facilitate childbirth.

Petitioner-hospital instead of granting maternity leave, terminated the services of the petitioner.

Tribunal directed the petitioner-hospital to extend maternity benefits to the respondents and issue a certificate to the applicant indicating the length of service rendered by her in the hospital. The said decision was taken when the respondent approached the tribunal second time.

Hence, the petitioner-hospital on being aggrieved with the above, approached this, Court.

Analysis, Law and Decision

High Court stated that the petitioner-hospital’s stance that the maternity leave benefit cannot extend beyond the period when the contractual period of an ad hoc employee comes to an end is an aspect that is required to be examined by the Court.

The provisions of 1961 Act seek to invest a woman with a statutory right to make maternity leave and seek payment for the period that she is absent from duty on account of her pregnancy, albeit in accordance with the provisions of the 1961 Act.

The provisions of Maternity Act do not differentiate between a permanent employee and a contractual employee, or even a daily wage (muster roll) worker. The said position was made clear in Supreme Court’s decision of Municipal Corpn. Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224.

The 1961 Act does not tie in the grant of maternity benefit to the tenure of the woman employee.

 Limiting factors for the grant of maternity benefits:

(i) First, the woman-employee should have worked in an establishment of her employer for a minimum period of 80 days in 12 months immediately preceding the date of her expected delivery.

(ii) Second, the maximum period for which she can avail maternity leave benefit cannot exceed 26 weeks, of which, not more than 8 weeks shall precede the date of her expected delivery.

Adding to the above, it was stated that for a woman employee who has two or more surviving children, although the maximum period of which she can claim maternity benefit is 12 weeks, the period preceding the date of expected delivery cannot be more than 6 weeks.

“…as long as conception occurs before the tenure of the contract executed between a woman-employee and her employer expires, she should be entitled to, in our opinion, maternity benefits as provided under the 1961 Act.”

While upholding the decision of the Tribunal, Court remarked that, without financial wherewithal, the interest of women-employee and her child is likely to be severely impacted.[Dr Baba Saheb Ambedkar Hospital Govt. of NCT of Delhi v. Dr Krati Mehrotra, 2022 SCC OnLine Del 742, decided on 11-3-2022]


Advocates before the Court:

For the Petitioners:

Ms Mini Pushkarna, Ms. Khushboo Nahar and Ms Latika Malhotra, Advs.

For the Respondent:

Ms Mansi Bajaj, Ms Nidhi Tyagi and Mr Saksham Mishra, Advs.

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed that,

“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities.”

An appeal was directed against the decision of lower Court arising out of POCSO Case, convicting and sentencing the appellant for offence punishable under Section 448 and 506 of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012.

The appellant used to come to the house of victim for last 7, 8 years and he used to call the girl as his granddaughter. Taking advantage of the absence of other family members, the appellant trespassed into the house of the victim and forcibly committed rape on her repeatedly on different occasions for 6-7 months.

In view of the complaint lodged by the victim under Section 376(2)(i) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 investigation was initiated against the appellant and charge sheet was filed against the appellant under Section 376(2)(i) of the Indian Penal Code and Section 6 of the POCSO Act, 2012.

Analysis and Discussion

High Court noted that during the period of occurrence, the victim girl was aged just above 14 years.

Bench remarked that,

In a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused without seeking for further corroboration. 

High Court noted that the victim herself lodged the written complaint, wherein she had categorically stated that the appellant, who called her grand daughter, committed rape upon her many times. She tried to protest against such unsocial nasty work, but the appellant threatened her by killing her along with her younger brother, father and grandmother.

FIR is never an encyclopedia rather it is information made at the first instance which sets the criminal law into motion. Criminal courts should not be fastidious with mere omissions in the first information statements, since such statements cannot be expected to be a chronicle of every detail of what happened nor to contain an exhaustive catalogue of events which took place [Rattan Singh v. State of H.P, (1997) 4 SCC 161]

Bench observed that the statement of the victim was recorded under Section 164 CrPC, the defence indicated certain omissions in her statement made in the Court during deposition.

Though, the Court noted that,

There are no material contradictions or contrary circumstance to disbelieve the evidence of the victim girl.

Court opined that the evidence of the victim girl before the Court, her written complaint and her statement before the Judicial Magistrate was consistent with the fact that the appellant committed forcible rape upon her on several occasions.

Hence, the evidence of the victim girl was very reliable to act upon. 

Pregnancy

From the evidence on record, it was quite apparent that the victim was pregnant of 5/6 months at the time of lodging of the complaint and she gave birth to a stillborn baby.

Though the investigating agency did not conduct any DNA Test, the Court held that the said was a drawback on the part of the investigating officer in not conducting the DNA test but that cannot be a ground to discredit the testimony of the victim girl.

Therefore, from the consistent evidence of the victim regarding the sexual assault perpetrated upon her by the appellant which resulted in her pregnancy and other evidences on record and the medical evidence stating of pregnancy, there cannot be any doubt that due to such sexual assault, she became pregnant.

High Court remarked that,

“…the evidence of the victim girl and other evidence as discussed above unerringly point to the guilty of the appellant as the person who ravished the victim on several occasions by entering into their house during the absence of other family members resulting in her pregnancy and also of threatening the victim with consequences to kill her and her family members in order to coerce her from disclosing such fact to her family members.”

Bench also observed,

In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to anyone, overpowered by feeling of shame and her natural inclination would be avoid talking about it to anyone, lest the family name and honour is brought into controversy.

With respect to delay in lodging an FIR, High Court expressed that it was not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay.

It was apparent that the appellant committed rape upon the victim aged just above 14 years forcibly. Therefore, as per the defining provisions of the IPC, the consent of the victim becomes immaterial. Accordingly, the presumption of law under Section 114(A) of the Evidence Act that the act was committed without the consent of the victim was of no relevance in the facts and circumstances of the present case.

Further, it was added that the presumption of law envisaged under Section 29 of the Act is also up against the appellant to have committed aggravated penetrative sexual act upon the victim as the same has not been rebutted.

As there was also evidence of trespass into the house of the victim by the appellant for committing the heinous offence of rape and subsequent threatening of killing the victim and her family members for not disclosing the fact to anyone the ingredients of Section 448 and Section 506 (II) of the Indian Penal Code is also established, Bench stated.

In view of the above discussion, the conviction of the appellant by the trial court was upheld.

In the present case, offence of penetrative sexual assault has been committed upon a helpless victim of 14 years which is inhumane and shakes the judicial conscience.

Sentence

High Court held that a term of 14 years of rigorous imprisonment will be commensurate with the nature of offence and accordingly sentence for rigorous imprisonment for life imposed in respect of Section 6 of POCSO Act, 2012, is reduced to rigorous imprisonment for a term of 14 years. The sentence of fine together with default clause as imposed by the trial court is maintained. The sentence in respect of offence under Section 6 of the POCSO Act, 2012 is modified to the aforesaid extent.

The conviction of the appellant was upheld.[Israil v. State of West Bengal, 2022 SCC OnLine Cal 209, decided on 2-2-2022]


Advocates before the Court:

For the Appellant: Mr Sourav Chatterjee, Adv.

Md. M. Nazar Chowdhury, Adv.

Ms Priyanka Saha, Adv.

For the State: Mr Binay Panda, Adv. Mrs Puspita Saha, Adv.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., decided on a petition which was filed by the father of the minor petitioner to issue a writ in the nature of mandamus commanding and directing the respondent to ensure immediate medical termination of petitioner’s pregnancy after taking all precautions as required to be taken medically and legally.

Petitioner, aged about 16 years, was a rape victim. The medical examination of the petitioner was conducted on 11.02.2022. She was advised Obstetrical Ultrasound (Sonography) test, which confirmed that she had a Single Live Intrauterine Fetus of 27 weeks 4 days (+) 15 days.

Monika Pant, the counsel appearing for the petitioner, submitted that the petitioner shall suffer mental injury if the pregnancy was continued and there will be multiple problems if the child would be born alive. The Co-ordinate Bench had directed the State to constitute a Medical Board and submit its report to the Court which concluded that considering the risk to the mother and fetal viability, it was not advisable to terminate pregnancy at that gestational age. Counsel appearing for both the parties agreed that the said report did not disclose whether death risk of the victim was involved.

The Court noted that the opinion of the members of the Medical Board was that there was a substantial risk to the life of the petitioner, if the medical termination of the pregnancy of the petitioner was conducted. They further submitted that at this stage of the pregnancy, the baby can be born with many anomalies. The Court further elaborated Section 3 of the Medical Termination of Pregnancy Act, 1971.

The Court reiterated the finding in Murugan Nayakkar v. Union of India, 2007 SCC OnLine SC 1092 wherein the Supreme Court had allowed medical termination of pregnancy beyond the statutory outer limit prescribed in the Act considering the fact that the victim was 13 years old and in trauma, even though the Board stated that termination will have equal danger for the mother.

There is a right to termination pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act.

In Suchita Srivastav v. Chandigarh Administration, (2009) 9 SCC 1 and in Meera Santosh Pal v. Union of India, (2017) 3 SCC 462, the Supreme Court held that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India.

Right to life means something more than survival or animal existence. It would include the right to live with human dignity. The father of the minor petitioner has expressed that the petitioner is not in a position to continue the pregnancy and if the petitioner is not permitted to terminate her pregnancy, there is possible grave injury to her physical and mental health.

The Court consequently considered it appropriate in the interest of justice to permit the petitioner to undergo medical termination of her pregnancy under the provisions of the Act with the following directions:-

  • The medical termination of pregnancy of the petitioner should be carried out by a senior most Gynecologist under the guidance of the Medical Board, constituted in compliance of the order dated 24.01.2022 of this Court, within 48 hours from the production of a copy of this order before the Chief Medical Officer, Chamoli.
  • During the procedure of medical termination, if they find any risk to the life of the petitioner, they have discretion to cancel the said procedure.
  • The Medical Board shall maintain complete record of the procedure of the termination of the pregnancy of the petitioner. The Medical Board shall collect the tissue and blood sample of the foetus for conducting DNA and other tests.
  • If baby is born alive, the Chief Medical Officer, Chamoli, the respondent no.2, and, Child Welfare Committee, Chamoli will do the needful in accordance with law.

[Ms. X v. State of Uttarakhand, 2022 SCC OnLine Utt 61, decided on 04-02-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. allowed the appeal for bail and set aside the order passed by the LXX Additional City Civil l and Sessions Judge and Special Judge, Bengaluru (on the application of the appellant under Section 439 Cr.P.C.

The instant appeal was filed under Section 14-A of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘SC/ST Act’ for short). The accused has preferred this appeal challenging the order passed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru rejecting his application for bail under Section 439 Cr.P.C.

Counsel for appellants Mr. Hasmath Pasha and Mr. Nasir Ali submitted that no doubt, the contents of the report and the charge sheet indicate that they spent intimate moments, but it also shows that the second respondent might have had consensual intercourse with the appellant. Even when they went to the hospital for the purpose of terminating the pregnancy, it was disclosed to the Doctors that the second respondent was the wife of the appellant, and she gave consent for termination of the pregnancy. The age of the second respondent is 27 years and in this view, the relationship between the appellant and the second respondent could be consensual. She knew the consequences of what she was doing. These being the facts and circumstances, at this stage, the appellant has been able to make out a prima facie case for grant of bail.

Cousnel for respondent Mr. K S Abhijith and Ms. Dhanlakshmi submitted that the second respondent has given statement under Section 164 Cr.P.C which discloses that she was subjected to forcible intercourse by the appellant. Her pregnancy was also terminated forcibly. There are ample materials indicating the involvement of the appellant. He refused to marry the second respondent the moment he came to know that she belonged to the scheduled caste. Therefore, there is no case for granting bail. it prima facie appears that the relationship between the appellant and the second respondent since the year 2018 is consensual.

The Court observed that the age of the second respondent is 27 years. She knew the consequences of having intercourse with the appellant. The appellant has produced a document which shows that both the appellant and the second respondent went to hospital for the purpose of terminating the pregnancy and at that time, they introduced themselves to be husband and wife. So, if all these aspects are taken into consideration, it is difficult to arrive at a conclusion at this stage that the appellant used to have sexual intercourse with the second respondent forcibly.

The Court thus held in the light of all these facts and circumstances, it is not diff icult to arrive at a conclusion that the appellant has been able to make out a case for grant of bail.

[Manoj Kumar M R v. State of Karnataka, Criminal Appeal No. 1933 of 2021, decided on 13-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While explaining whether a pregnant woman can seek termination of pregnancy beyond 24 weeks, Jyoti Singh, J. (Vacation Judge) found the mental health of the petitioner to be an essential factor for allowing termination of pregnancy.

Petitioner was 33 years old and had been undergoing regular checkups from the 5th week of her pregnancy. From the ultrasonography report conducted during the 20th week of gestation, it was revealed that there was choroid plexus cyst in the left lateral ventricle of the foetus. However, since the foetus was only 20 weeks old, foetal echocardiography was not performed. On completion of 24 weeks, foetal Echo-Doppler test was done, and various anomalies were found in the heart of the foetus.

After taking opinions from various doctors, it was found that the survival of the infant would be 50% in the very first year of their birth and even if they do survive the first year, repeated surgeries would have to be carried out and success of the surgeries would depend upon the stimuli of the baby to the environment.

Further, since the permissible limit of 24 weeks under the Medical Termination of Pregnancy (Amendment) Act, 2021 was over, the petitioner approached this Court seeking direction from the respondents to allow her to undergo medical termination of pregnancy.

Court had directed respondent 3/AIIMS to constitute a Medical Board to examine the petitioner, who had on the said date completed 28 weeks of pregnancy, to furnish its report regarding the necessity and feasibility of medical termination of the pregnancy.

The gist of the medical board’s opinion was also that the foetus had substantial abnormalities.

Analysis, Law and Decision

High Court observed that the petitioner in the present matter had completed 28 weeks of pregnancy, which was beyond the maximum period of 24 weeks, permissible under the MTP Act and therefore, on account of the proscription in Section 3 of the MTP Act, the petitioner had approached the Court, seeking directions to the respondents to allow the petitioner to undergo medical termination of the pregnancy.

The only focal point of the matter was that the petitioner sought pregnancy on account of the fact that the foetus was suffering from a severe cardiac anomaly.

As per Section 3(2)(b)(i) of MTP Act, grave injury to ‘mental health’ of a pregnant woman is a legal ground available to the woman to seek medical termination of pregnancy, with the caveat that the maximum period permissible under the Act, for termination, is 24 weeks.

Petitioner’s counsel took the Court to various decisions wherein cases of substantial foetal abnormalities and/or where the said abnormalities had a consequent impact on the mental health of the pregnant woman, Supreme Court and High Courts, both have permitted medical termination of pregnancy, beyond the statutory cap of 24 weeks.

While referring to a catena of decisions in view of the present matter, Court lastly referred to a judgment of Bombay High Court in XYZ v. State of Maharashtra, 2021 SCC OnLine Bom, 3353, wherein dealing with an identical issue, the Court allowed the petitioner to undergo medical termination of her pregnancy, finding that continuation of pregnancy could cause grave injury to her mental health.

Court noted the medical board’s opinion that the entire life of the child, if born, would largely depend on the clinical condition and quality of medical care provided to the child.

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Hence, High Court held that the mental frame of the petitioner, a mother, taking a tough call to terminate pregnancy, was understandable.

The Bench also added that the above-said circumstances would cause grave injury to the mental health of the petitioner.

Therefore, the petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. [Pratibha Gaur v. GNCTD, 2021 SCC OnLine Del 5573, decided on 31-12-2021]


Advocates before the Court:

For the Petitioner:

Ms. Sneha Mukherjee and

Ms. Surabhi Shukla, Advocates.

For the Respondents:

Ms. Hetu Arora Sethi, Additional Standing Counsel with Mr. Siddarth Aggarwal, Advocate for R-1 & 2.

Mr. Tanveer Oberoi, Advocate for R3.

Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi, J. disposed of the petition and refused to terminate 24+ week pregnancy of a rape victim.

The facts of the case are such that the petitioner is a rape victim assailing the order dated 09-07-2021 passed by the Ld. S.D.J.M. under Section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as “the
MTP Act” for brevity). Being aggrieved by the order, the present petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed in the instant court.

Counsel for petitioner submitted that the petitioner has been pregnant for more than 4 months and feels morally insecure to step out of her house due to horrendous social stigma attached to such crime. The social relations between men and women in which violence against women is often taken for granted, especially in cases like these the judge do decide their fate in the decision to abort or not to abort the pregnancy.

The Court observed that in the cases of this genre, the medical practice of abortion,  legal and illegal, has expanded but the Psycho-physiological and  social condition of the rape survivors form the essential aspects of  medical judgment especially in therapeutic abortion case.

In the absence of any report by medical team ascertaining the actual  period of pregnancy, the Court directed the office of the Advocate General in  order to facilitate the petitioner for testing of the period of  pregnancy accurately by a team of doctors as prescribed under the  Act. Accordingly, the test was conducted and report submitted which suggests it may be unsafe for getting the termination done at this stage. In fact, allowing the termination at  this stage could endanger the mother’s life or even lead to  substantial and irreversible impairment of a major bodily function.

The Court relied on judgment Suchitra Srivastava v. Chandigarh Administration (2009) 9 SCC 1 wherein it was observed that perusal of the provisions of the MTP Act makes it clear  that ordinarily a pregnancy can be terminated only when a medical  practitioner is satisfied that a ‘continuance of the pregnancy would  involve a risk to the life of the pregnant woman or of grave injury  to her physical or mental health’ [as per Section 3(2)(i)] or when  ‘there is a substantial risk that if the child were born, it would suffer  from such physical or mental abnormalities as to be seriously handicapped’ [as per Section 3(2) (ii)]. While the satisfaction of one medical practitioner is required for terminating a pregnancy within twelve weeks of the gestation period, two medical practitioners must be satisfied about either of these grounds in order to terminate a pregnancy between twelve to twenty weeks of the gestation period.

The explanations to this provision have also contemplated  the termination of pregnancy when the same is the result of a rape  or a failure of birth-control methods since both of these  eventualities have been equated with a ‘grave injury to the mental  health’ of a woman. In all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in Section 3(4)(b) of the MTP Act, 1971.  The exceptions to this rule of consent have been laid down in Section 3(4)(a) of the Act. Section 3(4)(a) lays down that when the  pregnant woman is below eighteen years of age or is a ‘mentally ill’  person, the pregnancy can be terminated if the guardian of the  pregnant woman gives consent for the same. The only other exception is found in Section 5(1) of the MTP Act which permits a registered medical practitioner to proceed with a termination of pregnancy when he/she is of an opinion formed in good faith that the same is ‘immediately necessary to save the life of the pregnant woman.

The Court observed that in the present case, there is no opinion of any registered medical practitioner regarding risk to life due to continuance of pregnancy of the petitioner or her physical and mental health. Further in the present case, the pregnancy exceeds 24 weeks and as per the requirement of the statute, the medical opinion of not less than two medical
practitioners was not obtained and no  medical opinion regarding termination of pregnancy, if, immediately  necessary to save the life of the petitioner as per Section 5 of MTP  Act. Therefore MTP Act does not permit the termination of pregnancy of the petitioner.

The Court further stated that the victim is being forced to bear and care for the unwanted child is bound to severely impact her personality and womanhood. Thus the court observed that her request should have been acceded to over and above the right to life of the child yet to be born. Though this issue has, time and again, knocks at the judicial threshold it is still crying for an unperplexed solution by way of suitable amendment in the statute governing the field.

The Court feels that the Police officers could have acted more sensibly and, at the very least, guided them to approach District Legal Service Authority or Legal Services Units at Taluk Level or to any para legal volunteers. This would have, perhaps, helped the victim to get timely legal advice and may have saved her from suffering the forced delivery, imposed on her due to medico- legal compulsions.

The Court issued following directions keeping in mind rape victims and their unborn child:

1).The District Collector, Cuttack shall ensure that arrangements are made to provide proper diet, medical supervision and medicines as may be necessary, to the  victim throughout the remaining part of her journey of  pregnancy. When the time for delivery arrives, proper medical facilities be made available for a safe delivery of  the child.

2).The State Legal Services Authority shall ensure that the State Government shall pay an amount of Rs.10, 00,000/- (rupees ten lakhs only) as compensation to the victim. This amount shall be over and above the compensation amount, if any, the learned Trial Court may direct to be paid to the victim and/or her child at conclusion of the trial in the underlying proceedings.

The Court held that it does feel that her welfare is of, paramount consideration for this court. “However, as regards the legal position, the above discussion and the mandate of Section 3 of the MTP Act, in particular, lead only to one conclusion i.e., since the length of the pregnancy of the victim is over twenty-six weeks, this Court cannot permit its termination.”

[X v. State of Odisha, 2021 SCC OnLine Ori 1964, decided on 16-11-2021]


Arunima bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Mr Sarathi Jyoti Mohanty
For Opp. Parties: Mr L. Samantaray

Legislation UpdatesRules & Regulations

The Central Government notified Medical Termination of Pregnancy (Amendment) Rules, 2021 to amend the Medical Termination of Pregnancy Rules, 2003.


Key amendments in the Medical Termination of Pregnancy Rules, 2003
are as follows:

  • Rule 3A dealing with powers and functions of Medical Board : For the purposes of section 3,

(a) the powers of the Medical Board shall be the following, namely:

(i) to allow or deny termination of pregnancy beyond twentyfour weeks of gestation period under subsection (2B) of the said section only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped;
(ii) co
opt other specialists in the Board and ask for any additional investigations if required, for deciding on the termination of pregnancy;

(b) the functions of the Medical Board shall be the following, namely :


(i) to examine the woman and her reports, who may approach for medical termination of pregnancy;

(ii) provide the opinion of Medical Board in Form D with regard to the termination of pregnancy or rejection of  request for termination within three days of receiving the request for medical termination of pregnancy;

(iii) to ensure that the termination procedure, when advised by the Medical Board, is carried out with all safety  precautions along with appropriate counselling within five days of the receipt of the request for medical termination of pregnancy.

  • 3B. Women eligible for termination of pregnancy up to twentyfour weeks.
    The following categories of women shall be considered eligible for termination of pregnancy for a period of up to twentyfour weeks, namely:


(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may  suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by  the Government.” 

 

  • In rule 4 of the said rules, in clause (c) subclause (ii), for the words “twenty weeks”, the words “twenty four weeks” shall be substituted;
  • Rule 4 sub clause(ca) is inserted. The provision provides the experience of Registered Medical Practioner:

A Registered Medical Practitioner shall have the following experience and training for conducting termination of pregnancy upto nine weeks of gestation period by medical methods of abortion, namely:
(i) experience at any hospital for a period of not less than three months in the practice of obstetrics and
gynaecology; or
(ii) has independently performed ten cases of pregnancy termination by medical methods of abortion under
the supervision of a Registered Medical Practitioner in a hospital established or maintained, or a training institute approved for this purpose, by the Government.”.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.B.Suresh Kumar, J., invoked the doctrine of parens patriae to permit termination of eight weeks pregnancy of a medically unsound rape victim.

 The instant petition was filed by Kerala State Legal Services Authority espousing the cause of a hapless rape victim diagnosed with psychosis. The victim was found wandering within the limits of Kazhakoottam Police Station and was taken by the Police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre.

The Medical Board at the Mental Health Centre found the victim to be pregnant, having gestation period corresponding to eight weeks as on 04-06-2021. As the relatives of the victim could not be traced, the Superintendent of the Mental Health Centre apprised the plight of the victim to the District Legal Services Authority and the writ petition was filed on that reference, seeking orders granting permission for medical termination of the pregnancy of the victim alleging that in terms of the provision contained in Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971, the victim being a major, her consent was required for terminating the pregnancy, but the victim was not in a position to grant such consent for termination of the pregnancy.

Perusal of Certificate issued by the Medical Board indicated that the victim was suffering from mental retardation with psychosis and was under treatment as an inpatient. It was recited in the said Certificate that the victim was unable to take decision or communicate her opinion.

The report submitted by the Medical Board stated that though continuation of the pregnancy did not endanger the life of the victim, there was a high risk for the mother and baby, as the victim was on multiple anti-psychotic medication. Continuation of pregnancy was riskier than termination at that in view of expected maternal complications due to the present mental status. Therefore, the Medical Board opined that the patient required observation and detailed evaluation, so as to comment upon her mental status conclusively and also to assess the capacity to take decision on her own.

In the light of the provision contained in sub-section (2)(b)(i) of Section 3 of the Act, 1971 and Explanation 2 to the said sub-section, the Bench held that the pregnancy was one that could be terminated on the basis of the opinion of two medical practitioners. As noted, the impediment in the matter of terminating the pregnancy of the victim was that she was not in a position to give consent for the same.

Reliance was placed by the Court on Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, wherein it was held that, “one among the said tests is the test of “best interests” which requires the court to ascertain the course of action which would serve the best interests of the person in question.”

Having regard to the fact that the person involved in the case was a rape victim and considering the opinion of the Medical Board, the Bench invoked the Hence, invoking the doctrine of parens patriae, to hold it was in the best interests of the person concerned to permit termination of her pregnancy. The writ petition was allowed and the respondents were permitted to terminate the pregnancy of the victim at the earliest, without insisting on the consent of the victim. However, considering that the person involved was a rape victim, the Bench passed further directions ordering respondents to take the tissue of the fetus and maintain the same for DNA examination.[Kerala State Legal Services Authority v. Union of India, WP(C) NO. 12278 of 2021, decided on 26-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsels for the Petitioners: K.P.Pradeep, T.T.Biju, T.Thasmi and M.J.Anoopa

Counsels for the Respondents: P.Vijayakumar, ASG and Initha B, Government Pleader

Case BriefsForeign Courts

UPDATE: Appeal preferred by the respondent against this decision before the UKSC has been unanimously dismissed.[Khan v. meadows, [2021] UKSC 21, decided on 18-06-2021]


Court of Appeal (Civil Division): The Division Bench of Lord Justice Hickinbottom and Lady Justice Nicola Davies DBE decided that the appellant doctor was not liable for the development of a “coincidental injury” in the newborn child, which was not within the scope of his duty to diagnose when the mother of the child consulted her before pregnancy.

Factual Matrix

The appellant was the mother of a child with haemophilia and autism. Before her pregnancy, she asked Dr Khan to establish whether she carried the haemophilia gene. Following blood tests, the mother was wrongly led to believe that any child she had would not have haemophilia. Had she known that she carried the haemophilia gene, she would have undergone foetal testing for haemophilia when she was pregnant. This would have revealed the foetus was affected. Appellant would then have chosen to terminate her pregnancy, and her child would not have been born.

Appellant sought damages from Dr Khan based on wrongful birth.

Further, she argued that Dr Khan was liable for all the consequences of the pregnancy. Dr Khan admitted liability for the consequences of the child’s haemophilia but denied liability in relation to the autism.

Issue for Consideration

If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?

Court’s Discussion

Bench stated that the scope of duty test identified by Lord Hoffman in South Australian Asset Management Corporation v. York Montague Ltd (“SAAMCO”) [1997] AC 191 is determinative of the issues which have to be addressed by a court.

Following were the questions:

i) What was the purpose of the procedure/information/advice which is alleged to have been negligent;

ii) What was the appropriate apportionment of risk-taking account of the nature of the advice, procedure, information;

iii) What losses would, in any event, have occurred if the defendant’s advice/information was correct or the procedure had been performed?

Court found that:

i) The purpose of the consultation was to put the respondent in a position to enable her to make an informed decision in respect of any child which she conceived who was subsequently discovered to be carrying the haemophilia gene. Given the specific enquiry of the respondent’s mother, it would be inappropriate and unnecessary for a doctor at such consultation to volunteer to the person seeking specific information any information about other risks of pregnancy including the risk that the child might suffer from autism. In giving such information it would be incumbent on a doctor, consistent with her/his own professional obligations, to take account of a variety of factors which on the facts of this case the appellant was unaware of.

ii) As to the apportionment of risk, the doctor would be liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy. The mother would take the risks of all other potential difficulties of the pregnancy and birth both as to herself and to her child.

iii) loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism.

It was held that the appellant had no duty to prevent the birth of Adejuwon. The purpose and scope of the appellant’s duty were to advise and investigate in relation to haemophilia in order to provide the respondent with an opportunity to avoid the risk of a child being born with haemophilia.

Conclusion 

Bench expressed that the development of autism was a coincidental injury and not one within the scope of the appellant’s duty.

In view of the above discussion, the appeal was allowed. [Dr Hafshah Khan v. Ms Omodele Meadows, [2019] EWCA Civ 152, Hearing date: 17 October 2018]