Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ., issued directions in a case wherein a woman for the reason of being a ‘rape victim’ has been unable to secure accommodation.

The instant petition was filed by a rape victim invoking the jurisdiction of this Court under Article 32 of the Constitution of India.

Factual Matrix

Petitioner claimed to be a Scheduled Tribe in the State of Jharkhand. She was taken away by one Basant Yadav and later on being found, the police and the father of the petitioner got the petitioner married to Basant Yadav.

After a year of the marriage, petitioner gave birth to a son and later filed a complaint as well as a maintenance case against Basant Yadav.

Later in the sequence of facts, it was noted that after the divorce, the custody of the son was given to Basant Yadav and once petitioner while going to meet her son was raped by one Mohd. Ali and three other accused.

In light of the above incident, a case under Section 376/34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989was registered in which accused, Mohd. Ali was apprehended and put on trial.

Petitioner had also lodged FIR against the Dy. Inspector-General of Police under Sections 376,376(2)(a) IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. Though,

Sessions Judge acquitted the Inspector General of Police by judgment and order dated 23-12-2017.

The concern placed by the petitioner is that she being a rape victim, whose identity was disclosed by the media, no one is ready to give her a rented accommodation. She has sought direction for the protection of her children.

Analysis and Decision

“The petitioner being a rape victim deserves treatment as rape victim by all the authorities.”

 While stating that a rape victim suffers not only a mental trauma but also discrimination from the society, bench referred to the decision of Supreme Court in Nipun Saxena v. Union of India, (2019) 2 SCC 703, wherein it was held that:

“12. A victim of rape will face hostile discrimination and social ostracisation in

society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. ………”

 Petitioner has two sons and one daughter, out of which one son is major and the other two are minor.

Bench on noting after an inquiry stated that Deputy Commissioner, Ranchi shall take appropriate steps to ensure that minor children are provided with free education in any Government Institution at Ranchi.

With regard to the grievance of revelation of rape victim’s identity, Court referred to the Section 228-A of the Penal Code, 1860 which makes disclosure of the identity of the victim an offence.

In Nipun Saxena v. Union of India, (2019) 2 SCC 703, following directions were issued:

“50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.”

 Further, the grievance in regard to the petitioner’s inability to get any rented accommodation due to her being a rape victim, Court stated that there several Central as well as State Schemes for providing residential accommodation to persons living living below poverty line and other deserving cases, hence the Bench asked the Deputy Commissioner, Ranchi to consider the case of the petitioner for allotment of any housing accommodation under Prime Minister Awas Yojna or any other Scheme of the Centre or the State.

Conclusion

Directions issued by the Court:

  1. The Deputy Commissioner, Ranchi is directed to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District Ranchi where the petitioner is residing till they attain the age of 14 years.
  2. The Deputy Commissioner, Ranchi may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation.
  3. The Senior Superintendent of Police, Ranchi and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper.
  4. The District Legal Services Authority, Ranchi on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the petitioner.

[X v. State of Jharkhand, WP (Civil) No. 1352 of 2019, decided on 20-01-2021]

Case BriefsHigh Courts

Kerala High Court: P.V. Asha, J., allowed termination of pregnancy even after 25 weeks 3 days gestational age considering the tender age of the minor and risk of severe psychiatric trauma to the minor rape survivor.

Mother of the minor girl, aged 14 years, filed this instant petition pointing out that the girl was carrying 22 weeks of pregnancy and continuation of the same would be critical to her health and contrary to her interest. It was submitted by the petitioner that the minor was not mentally prepared to accept the pregnancy.

The Court directed the medical Board of specialists to submit a report before the Court in respect of the medical condition of the child and all other related aspects for conducting the procedure of medical termination. The minutes of the Medical Board stated as follows:

  1. In view of the gestational age of 23 weeks plus 4 days, in addition to the usual risks like haemorrhage, sepsis, risk of blood transfusion etc, due to the present gestational age, there is a possibility that the uterus may not respond to the usual methods of medical induction. In that situation we may have to resort to surgical methods (hysterotomy) which involves anaesthesia and surgical risks.
  2. There is a possibility that the child may be born alive, however, the chances of survival is remote.
  3. After examination of the victim; the Psychiatrist opined that continuation of pregnancy may result in severe psychiatric trauma. Hence it was suggested that termination of pregnancy could be considered.

The Court observed that section 5 of the Medical Termination of Pregnancy Act, 1971 permits termination of pregnancy even in cases where the period of gestation exceeds the period prescribed in Sections 3 and 4 of the Act. The Court relied on Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339, wherein the Supreme Court permitted termination of pregnancy even when the gestational age was 26 weeks. The Court permitted termination of pregnancy, considering the trauma undergone by the minor girl, opinion of the Psychiatrist and the report of the medical board. It was held that in the event the baby is born alive; it has to be taken care of.

The Superintendent of Government Medical College was directed by the Court to ensure that the termination of pregnancy of the minor girl was undertaken by competent Doctors at the earliest point of time, with further direction to the Doctors to take the tissue of the foetus for DNA identification and to maintain the same intact for future purposes, since a criminal case was pending in the instant case. Direction to maintain absolute privacy with respect to the identity of the petitioner and that of the minor girl while issuing the certified copy of the judgment was also given. [XYZ v. Union of India, 2021 SCC OnLine Ker 18, decided on 04-01-2021]

Case BriefsForeign Courts

Federal Court of Australia: Stewart, J. allowed an appeal filed by a Sri Lankan rape survivor who had applied for an Australian visa, holding that the Immigration Assessment Authority (IAA) erred in rejecting the applicant’s claim that social stigma arising from her sexual assault coupled with her Tamil ethnicity could likely amount to persecution if she were to be sent back.

The appellant is a Sri Lankan citizen of Tamil ethnicity, who lodged a combined application for Safe Haven Enterprise Visas (SHEVs) in 2017 along with her husband and son. Their applications were denied on the grounds that Australia did not owe them protection obligations, and this was affirmed by the IAA. The Federal Circuit Court dismissed the appellant’s application for judicial review of the Authority’s decision.

The appellant feared returning to Sri Lanka due to her Tamil ethnicity and her imputed pro-LTTE political opinion, and apprehended a continuing risk of rape and harassment by Sri Lankan security forces, which had been ongoing since the civil war ended in 2009. She claimed that she been raped while in Sri Lanka, but had “not been able to express this to anybody, not even [her husband].”

The IAA, however, was not convinced that her fear was well-founded, having given regard to “the improved security situation in Sri Lanka, the opportune nature of the sexual assault in 2010 and the protection the appellant would receive from her family,” stating that it was not satisfied that she would face a similar harm (of sexual assault) if she were to return. It went further to state that since the knowledge of the incident was limited to a very small pool of persons, there did not exist a real chance that she would face societal discrimination.

The Court disagreed with the earlier decisions, making a reference to “country information” cited by the IAA itself, which demonstrated that there was a factual basis to the realistic possibility that Tamil rape-survivors in Sri Lanka face discrimination and social stigma. It observed that by assuming that the appellant would not suffer from discrimination because she would be discrete about her rape, the IAA impermissibly divided Tamil sexual assault-survivors in Sri Lanka into two categories- one whose assault is public, and one whose is not. This shifted the focus away from the main question as to why she felt unable to tell “anyone,” causing the Authority to fail to enter upon the inquiry as to whether the social group suffers persecution as a consequence of social stigma. Since the IAA was operating under the presumption that the rape would not be disclosed, it failed to consider what would happen to the appellant if it did.

Stewart, J. acknowledged the increased vulnerability of sexual assault survivors to various adverse health effects as a result of prolonging disclosure of sexual assault, feelings of shame and experiencing negative social reactions. Holding that the appellant could be found to be a refugee and could fulfil the criteria under Section 36(2)(a) of the Migration Act, 1958 (Cth) wherein Australia has protection obligations with respect to a non-citizen refugee, it set aside the orders of the primary judge, allowed the application for judicial review of its decision and remitted the matter to the Authority for reconsideration. [CGW18 v Minister for Home Affairs [2020] FCA 1104, decided on 03-08-2020]

Hot Off The PressNews

As reported by the media, the three police officers who were dealing with Pollachi sexual assault case and had revealed the identity of the survivor of the barbarous crime during a press conference have been transferred with no postings at present.

The officers have been transferred with immediate effect.

Tamil Nadu Home Department issued the transfer orders to Coimbatore District Superintendent of Police R Pandiarajan, Pollachi Sub-Division DySP R Jayaram and Pollachi East Police Station Inspector A Natesan.

Madras High Court had stated that, “The irresponsible conduct of the police officer is highly condemnable by this court and it is appropriate to issue direction to the state government to take disciplinary action against the said police officer.”

The case was transferred from the local police to the state’s CB-CID on 12-03-2019.

[Source: NDTV]

Hot Off The PressNews

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

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

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

Source: PTI

Hot Off The PressNews

Supreme Court: The 10-year-old girl, who’s plea to terminate her pregnancy was refused by the Supreme Court on 28.07.2017, will receive Rs. 10 Lakh compensation from the Chandigarh Administration as directed by the Court. The Court asked the Chandigarh administration to release Rs. 1 Lakh to the family of the girl and keep the remaining Rs. 9 Lakh in Fixed Deposit.

On 28.07.2017, the Court had held that allowing the termination of her pregnancy might be dangerous for the girl’s health, based on the medical report of the 10-year-old rape survivor who was repeatedly raped by her uncle. The Medical Board of PGI, Chandigarh said in it’s report that  it would neither be in the interest of the girl child nor the alive foetus, which is approximately 32-weeks-old, to order abortion.

Source: ANI