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

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of CJ SA Bobde, and R. S Reddy and AS Bopanna, JJ has issued notice to the Union of India in a petition seeking directions to all States and UTs to pay the maternity benefit of not less than Rs.6,000/- to all pregnant women and lactating mothers.

The writ petition filed by the Peoples Union for Civil Liberties prays,

“For an order directing all States and UTs to pay the maternity benefit of not less than Rs.6,000/- to all pregnant women and lactating mothers with effect from 5.7.13 in accordance with Section 4(b) of the National Food Security Act.”

The Court has asked the Union of India to furnish a status report in the matter.

It is pertinent to note that the Pradhan Mantri Matru Vandana Yojana (PMMVY) promises Rs 6,000 to all pregnant women and lactating mothers as per Section 4(b) of the National Food Security Act, 2013.

[Peoples Union for Civil Liberties v. Union of India, 2020 SCC OnLine SC 573 , order dated 14.07.2020]

Telangana High Court
Case BriefsCOVID 19High Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J. directed the State to ensure that ambulances are available on National and State Highways as migrant workers, including pregnant women are using the same to reach destinations.

Concern as placed in the petition for which relief is sought is with regard to the failure of State Government to protect and safe guard meaningful access to essential health services to pregnant women and for neonatal care during COVID-19 lockdown.

Following were the direction sought by the petitioner:

  1. to ensure that in every COVID-19 hotspot or Red Zone, a Nodal Officer is appointed whose contact number(s) is publicly made available for accessing non COVID-19 related health services, including reproductive health and ensure provision of ambulances which are not ferrying COVID-19 patient
  2.  to institute dedicated help lines for women seeking non COVID19 essential health services during the lockdown and make the numbers publicly available
  3. to ensure that pregnant women requiring medical. facilities are taken safely and at the earliest to the nearest non COVID-19 designated hospitals “‘
  4. to ensure that private vehicles carrying pregnant women are allowed to move freely without insisting on a Movement Pass.
  5. to place a cap on the price/fees charged for medical services rendered by private hospitals/health facilities, relating to childbirth, maternity, neonatal care and abortion services during COVID-19 restrictions / lockdown
  6. to provide sufficient compensation to the victim’s family from the victim welfare fund.

Another petition was filed wherein direction was sought for respondents to ensure that pregnant women are given urgent care in Government Hospitals in the State of Telangana and not make them run for nearly 200 km, as happened in a heart- wrenching incident occurred in Gadwal (a 20 year old pregnant women, Jenila, from Yapadine village of Ieeja Mandal, Jogulamba Gadwal District) due to bureaucratic interpretation of Guidelines that has tragically led to the death of both the pregnant woman and her just delivered infant and to issue clear instructions to all hospitals to treat patients on the basis of medical emergencies and to not stick to bureaucratic norms that would endanger the lives of the patients as there is every possibility of such tragic incidents recurring in the State of Telangana. 

Decision

It has been noted by the Court that departmental proceedings have been initiated against the doctors who were found to be negligent in the above-mentioned case of Janila. Though Court would want to whether any criminal action has been initiated against the negligent doctors/hospital.

Court suggests respondents to ensure that ambulances are available on National and State Highways as migrant workers, including pregnant women are using the same to reach destinations.

Thus, Advocate General is directed to inform the Court on the aspect of availability of Ambulances on National and State Highways.

Matter listed on 10th June, 2020. [Sreenitha Pujari v. UOI, 2020 SCC OnLine TS 497 , decided on 27-05-2020]

Case BriefsCOVID 19High Courts

Karnataka High Court:  A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. asked the State Government of Karnataka to take cognizance on various significant issues that have been raised in wake of the outbreak of Corona Virus.

Bench while addressing the present petition, appealed the members of the Bar and citizens to not file more PILs with the issues being considered in the present petition.

First Issue: Allegation against the police that they are indulging in indiscriminate lathi charge against persons who are found on streets.

Advocate General as well as Additional Government Advocate brought the attention of the Court to the directions issued by Commr. of Police calling upon police to show restraint.

Bench: It is stated that if Director General and IGP of State issue the same guidelines as stated above all over the State, then there may not be an occasion to make allegations regarding police excesses and police indulging in lathi charge. Court also stated that it is the responsibility to cooperate with administration and police for effective implementation of Order of Ministry of Home Affairs dated 24-03-2020.

Issue of Decongestion of jails in light of directions issued by Apex Court:

A Committee headed by Executive Chairman of Karnataka State Legal Services Authority was constituted that issued directions for implementation of directions issued by Supreme Court. Committee at District level to identify under trial prisoners who are charged with offences for which punishment is upto 7 years or less.

Court invited the Advocate General’s attention to the fact that State should ensure that the prisoner’s released on bail or parole have reached to their respective places.

Parole or Bail have to be undertaken after obtaining due consent of prisoner concerned. State will have to ensure that prisoners released do not suffer and are not required to stay on streets.

Directions have been issued considering rights of the prisoners under Article 21 of the Constitution of India with a view to ensure that spread of Corona Virus within prisons is controlled.

Bench states that it would be appropriate if State Government ensures that police strictly follows the guidelines laid down by Supreme Court in case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Situation with regard to closure of all Anganwadis in the State:

Supply of hot meal to pregnant women and lactating mothers was being made and even food to the mal-nutritioned children was being provided.

Now this would result in stoppage of food supply. Thus these issues will have to be addressed by the State.

Attention is invited to the fact that all schools have been ordered to be closed : Issue is providing food to the children who were entitled to benefit of mid-day meals.

State Government will have to address the above-stated.

Coming to issue of supply of food to poor people, daily wage workers, people residing o streets, railway platforms etc., suggestions have been made as well as aspect of provision of face masks, sanitizers etc., to this category of persons.

Further the submission made is to reduce congestion in ration shops, State must consider the question of delivery of food grains at door step.

Additional Government Advocate for the State pointed out that State Government agreed to release quota of ration for April, 2020 and May, 2020 to all those holding ration cards.

It would be appropriate if State Government directs Gram Panchayats to take care of food security of the citizens residing within its jurisdiction.

Other Concern: If State is going to supply cooked food to the needy sections through Indira Canteens, it will lead to mass gathering of people which may result in community spreading of disease.

Court stated that State Government is expected to respond the above subject before the next date by producing a comprehensive plan for supply of food grains/food to the needy people, poor people, daily wage workers, people residing on the streets, railway platforms, bus stands etc.

Another issue that arose in front of the Court was that , there are large instances of hoarding of essential supplies and goods. 

Bench in the above regard states that, the State government will apply the available laws strictly and prevent hoarding of essential supplies, as such illegal activities directly affect the supply of essential goods to citizens.

Issue regarding pourakarmikas:

Sarfaraz Khan, Joint Commissioner of BBMP of Solid Waste Management department stated that the equipments as stated therein have been supplied to all the pourakarmikas working under BBMP.

Issue regarding collection of waste/garbage from houses where persons have been subjected to home quarantine:

Bench states that State Government will have to respond by taking special measures on the above regard as apprehensions are that pourakarmikas will be affected by infection.

Every single pourakarmika must be provided with the safety equipment. The State Government will have to ensure that appropriate transport facilities are made available to them.

They play a very pivotal role in the present circumstances.

State Government is expected to exercise plenary powers and issue directions to all municipal bodies to extend all the benefits as discussed and all the benefits mentioned.

Also the State Government will have to take a policy decision of introducing special measures for protecting the above category of workmen.

Another aspect that State Government has to respond on the next date of hearing is number of laboratories available for testing Corona Virus.

Another issue for consideration is of providing food to stray animals, stray dogs etc.

Bench asks the State Government to look into the aforesaid aspect.

It would be appropriate if State Government provides a portal on its website with a request to all NGOs to upload information about the nature of work they are are doing and geographical area of their work. State Government can more effectively take the help of NGOs and infact, allocate different categories of services in different areas.

One of the submissions was regarding seeking direction to Wakf Board to take steps to control large gathering at the time of prayers.

Court makes it clear through this order that,

“the Central Government’s order dated 29-03-2020 will have to be implemented in its true letter and spirit.”

State government will have to take cognizance of the present order and take appropriate steps on the basis of the said order.

Bench directs the listing of these petition on 03-04-2020. [Mohammed Arif Jameel  v. Union of India, 2020 SCC OnLine Kar 391, decided on 30-03-2020]