Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ., and  Manash Ranjan Pathak, J., addressed a suo motu PIL concerning the plight of a rape victim, where the victim was a child between 12-15 years of age.

The incident alleged to had happened in the State of Arunachal Pradesh where a missing report was filed by one Mr Aka Kalung alleging that his domestic help who was a child brought from Nepal, had been missing. The girl was later recovered the next day but as she was reluctant to go to the house of the informant her custody was given to the Child Care Institute, where the victim made allegations of rape and sexual abuse against the informant, stating that he had been abusing her for the last many years.

Meanwhile, on the plea of the father of the victim the Sessions Judge, Tezu, Lohit District, Arunachal Pradesh directed the CCI to hand over the custody of the child to the “local guardian”. This local guardian was none else but the sister-in-law of the accused. The impugned order was challenged in revision before the High Court and the custody was not handed over to the local guardian. Therefore, another application was moved by the father of the child in which further direction was given to hand over the child to the local guardian.

Invoking the doctrine of Parens Patriae, the High Court held that since the local guardian to whom the custody was being handed over was a close related of none else but the accused, it would not serve the interest of justice and definitely it would not be in the best interest of the victim child.

Hence, the order of the Sessions Judge was stayed with the further directions to the lower Courts not to take up any other application where the subject matter relates to the custody of the child. The custody of the Child was granted to CCI. Further, directions were issued to the Deputy Commissioner to conduct an enquiry by personally visiting the CCI and furnish the details with regard to the facilities available in the CCI, including the fact that such an institute was registered or not.

The Superintendent of Police of the concerned district, where the CCI was located was directed to ensure that the child was given every protection in the institute and she should not be allowed to be visited either by the accused or his relative or even by her father till the next date of listing. However, the Bench made an exception of the mother of the child. Who was allowed to visit the child and stay with her.

Observing the sensitivity of the matter, the Bench issued strict directions to the State to depute a team of medical officers, including a lady doctor to conduct medical examination on the victim, only for the determination of her age. The Bench emphasised strictly that the examination shall be limited to a bone ossification test and no other test be done as the victim had already been medically examined.[State of Arunachal Pradesh, In Re., PIL (Suo Moto) No. 5 of 2021, decided on 30-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by: 

For the Petitioner: U K Nair, Sr. Adv

For the Respondent: A Chandran, Addl. Sr. Ga, Ap

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

Bombay High Court: S.C. Gupte, J., allowed medical termination of 24 weeks pregnancy of 16 year old girl victim of rape & sexual abuse.

Petitioner had sought for medical termination of 23 weeks pregnancy of his daughter who is 16 years old and is a victim of rape and sexual abuse.

In respect of the offence of rape and sexual abuse, an FIR has been registered by the Petitioner with Paud Police Station, Pune.

Petitioner’s case proceeds on the footing that his daughter, being of a tender age of 16 years, is likely to suffer mental and physical trauma due to unwanted and dangerous pregnancy.

So also, it is submitted that continuation of pregnancy at this tender age of 16 years is likely to leave a maternal mortality and in the premises, permission of this court is sought for medical termination of pregnancy.

Court referred the case on 5th May, 2020 to a medical committee. Medical Board recommended termination of pregnancy in view of her history and teenage pregnancy carrying higher mental and physical morbidity and mortality.

Thus, Bench held that considering that despite being aware of the dangers of continuation of pregnancy as well as its termination, Petitioner and his daughter having expressed a keen desire before the Board to terminate the pregnancy and considering the specific opinion of the Medical Board, it is imperative to permit the medical termination of pregnancy.

Court also stated that in view of the same being a result of rape and sexual abuse, appropriate directions for preservation of tissue and blood sample of the fetus for carrying out requisite medical tests including DNA finger printing /mapping would have to be passed.

Bench further observed that, in case the child born is alive and the Petitioner and his daughter are not willing to or not in a position to take responsibility of such child, the State and its agencies will have to assume full responsibility for such child.[Pramod A. Solanke v. Dean of B.J. Govt. Medical College & Sasoon Hospital,  2020 SCC OnLine Bom 639 , decided on 08-05-2020]

Hot Off The PressNews

As reported by media, Cabinet of the State of Andhra Pradesh has cleared the passage for a bill that proposes capital punishment in the cases of sexual abuse of women. Justice in 21-days including investigation and trial are also the components of the Bill.

Andhra Pradesh government has cleared two bills with the objective of speedy justice to women and children with the focus on rape victims and other sexual offences.

First Bill aims for justice in 21-days including investigation and trial and the second one mandates setting up special courts to try sexual offences against women and children.


[Source: Media Reports]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission has taken suo-moto cognizance of media reports that a woman committed suicide at Police Station Jathlana, Yamunanagar, Haryana alleging police inaction in her rape case. The Commission has issued notices to Chief Secretary and DGP, Haryana calling for a detailed report on the matter within six weeks.

The Commission has also directed to the DGP, Haryana to communicate the action taken against the delinquent police personnel. The Commission directed the Chief Secretary of the State of Haryana to look into vulnerability of the family of the deceased and the protection and financial help if not already carried out, be provided by the State to the victim family. The direction also issued about whether training has been provided to the police personnel at different levels to handle such sensitive cases with a more human touch.

Issuing the notices, the Commission has observed that the contents of the news reports, if true, raised serious issue of violation of human rights of the victim and indicate gross negligence on part of the police personnel. The apparent insensitivity and lackasdical attitude on part of the police personnel is a grave concern.

According to the news reports carried today on 04-09-2019, the victim had got tired by visiting the police station again and again and in fact, justice was denied to her by the police authorities of Jathlana Police Station in Yamunanagar and she finally committed suicide. Her family members have made serious allegations against the Sub-Inspector and Police Station In-charge and demanded their suspension with the immediate effect.

The father of the deceased woman lodged a complaint that his daughter was married in the year 2016 and after marriage, she did not give birth to a child and there were regular altercations in the family. Some months ago, when the victim came to her maternal house in her village, where alleged fellow villagers on the pretext of getting her divorce and also job called her at a place and gave the victim lift in a car and took her to Jagadhar Bus stand where the victim was given juice having sedatives. The news report also reveals that the accused kept the victim in Delhi, Lucknow and Dehradun for 3-4 months and during the time, the victim was raped and obscene videos were also made. The victim somehow managed to get free from their captivity and after came back to the house revealed the ordeal to her family members.


National Human Rights Commission

[Press Release dt. 04-09-2019]

Case BriefsHigh Courts

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

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

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

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

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

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

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

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. allowed a writ petition for quashing the criminal proceedings against rape accused who later on married the victim.

In the instant case, the petitioner (‘accused’ before the trial court) was alleged to have committed offences punishable under Section 366A, 376 of the Penal Code, 1860 and Section 3(a) read with Section 4 of the POCSO Act, 2012.

The counsels for the petitioner, C.S. Manu and S.K. Premraj, contended before the High Court that the petitioner had settled the disputes amicably with the respondent (‘victim’ before the trial court) by solemnizing marriage with her as per the provisions of the Special Marriage Act, 1954 and they had a daughter aged four months out of the wedlock. The petitioner also produced a Marriage Certificate issued by the statutory Marriage Officer.

Anoop Joseph, counsel appearing for the respondent also pointed out that, since the respondent had already married the petitioner, it would be in her interest that the impugned criminal proceedings be quashed; otherwise her marital life would be put into jeopardy, and there would be no one to take care of her as well as her young child hardly aged 4 months.

The Court observed that, though the grave and serious offences as the one under Section 376 of the Penal Code could not be the subject matter for quashing on the ground of settlement between the accused and the victim; but relying on its judgment in Freddy @ Antony Francis v. State of Kerala, 2018 (1) KLD 558, it held that “the exception to the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the de-facto complainant/ victim, to ensure her better future life, it is only just and proper that this Court in exercise of the extra ordinary inherent powers under Section 482 of the CrPC could quash the impugned criminal proceedings on the ground of settlement between the parties in cases where the accused has married the defacto complainant and the de-facto complainant is insisting for quashing of the impugned criminal proceedings, etc.”

In the light of the above, more particularly in the light of the submission made by the respondent, the Court allowed the plea for quashing of impugned criminal proceedings.[Ashiq N.A. v. State of Kerala, 2019 SCC OnLine Ker 1731, decided on 23-05-2019]

Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., in his own words, departed from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 and allowed termination of 20-weeks pregnancy of a 12-year old rape victim.

The present matter was concerned with the question of allowing the termination of pregnancy of the victim child. Dr Mamata Pradhan, Chairperson of the Medical Board constituted by the Court clarified that termination of pregnancy of 20 weeks bears the serious risk, but it could be done and for that reason, the guardian of the victim girl had to give a qualified consent on fully understanding the consequences and risks involved in such termination.

After elaborate consultations with Dr Pradhan, victim’s mother (her guardian) informed the Court that there is no alternative but to get the pregnancy terminated. A. Bhowmik, Advocate for the petitioners submitted that the court may pass appropriate orders having regard to Supreme Court decision in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339 wherein reproductive choice was recognised to be an inseparable part of personal liberty protected under Article 21.

Having regard to such a situation, the High Court directed Dr Pradhan and her team to commence the procedure of termination of pregnancy of the victim. The Court observed, “Having considered the injury that might torment the mental health of this young girl, this Court has taken the undertaking made by the mother seriously. In the circumstance, the foetus be terminated forthwith, making a departure from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 for responding to the necessity created by human emergency.” The Court also recorded appreciation for B. Choudhary, Public Prosecutor and D. Sarma, Additional Government Advocate for their contribution. The matter was disposed of in the terms above. [Jhuma Roy v. State of Tripura, 2019 SCC OnLine Tri 80, Order dated 08-03-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vibhu Bakru, J. allowed the termination of pregnancy of a minor whose fetus had already undergone a gestation period of 22 weeks.

In the present order, it was noted that the petitioner had approached the High Court for direction to respondents in regard of termination of her pregnancy even after being aware of the high risks involved with the same. The Court on interaction with the 16-year old rape victim noted that she insisted on the termination of pregnancy and seemed to be in considerable distress.

Further, the Court noted the observation of Dr Sanjay Agrawal, Director Professor of Psychiatry, who was of the view that the unwanted pregnancy was causing a considerable amount of distress to Ms X. Medical Board had submitted the report which indicated that abortions of about 22 weeks carry a higher risk of mortality and morbidity. The stated risk was explained to the petitioner as well as her father, both of whom were adamant that the pregnancy should be terminated.

Learned Counsel for the petitioner while citing various decisions of Supreme Court including Chanchala Kumari v. Union of India, WP(C) No. 871 of 2017 and Venkatalakshmi v. State of Karnataka, Civil Appeal No. 1538 of 2017, noted that the Court on examining the medical reports had permitted the termination even after 24 weeks of pregnancy.

Thus, the High Court keeping in consideration the above-stated allowed the petition and directed for the termination of pregnancy of the minor child. [X v. State (NCT of Delhi),2018 SCC OnLine Del 12891, Order dated 01-12-2018]

Case BriefsSupreme Court

Every attempt should be made by all the courts not to disclose the identity of the rape victim in terms of Section 228-A IPC

Supreme Court: The Bench comprising of Abhay Manohar Sapre and Uday Umesh Lalit JJ. while addressing the petition of a convict under Sections 376 and Section 342 IPC and affirming the sentence granted to him by the High Court, took notice of a very essential point of concern, that the name of the ‘rape’ victim has been stated in both the judgments of the Trial Court as well as that of the High Court.

The present order dealt with, the appeal of a rape convict under Sections 376 and 342 IPC with a sentence of 7 and 1 year respectively. The Supreme Court found no merits in intervening with the High Court’s conviction and sentence, therefore, the appeal was dismissed.

The point to be addressed was that of victim’s name being mentioned in the judgments of the Trial Court and High Court, which was inconsistent with Section 228-A of IPC. The Supreme Court while stating that the courts should make every attempt in not disclosing the identity of the victim, relied on the case State of Punjab v. Ramdev Singh (2004) 1 SCC 421.

Therefore, while dismissing the present appeal, the bench focussed on the point regarding the mentioning of rape victim’s name and further directed the Registry of the High Court to place the record of the appeal in the High Court for making appropriate changes in the record and passing of appropriate directions so that the trial courts comply and understand the essence of Section 228-A IPC. [Lalit Yadav v. State of Chhattisgarh, 2018 SCC OnLine SC 680, order dated 05-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of Ranjit More and Prakash D. Naik, JJ. heard a petition requesting termination of pregnancy of the petitioner’s daughter who was a victim of rape and was running into 27 weeks of pregnancy on the grounds that continuation of pregnancy would cause grave injury to the victim.

Relying on the medical report submitted by the Assistant Public Prosecutor which stated that “the petitioner’s daughter should be directed to continue pregnancy with medical and psychological support” and also on Section 3 of the Medical Termination of Pregnancy Act, 1971, the Court refused to interfere and dismissed the petition.

Section 3 of the MTP Act, 1971 states that a pregnancy may be terminated where the length of a pregnancy exceeds 12 weeks (before which a medical practitioner is permitted to terminate a pregnancy) but not 20 weeks, and at least two registered medical practitioners must be of the opinion, formed in good faith, that the continuation of the pregnancy would gravely injure the woman’s physical or emotional health. The Explanation provides that if the pregnancy has been caused by rape, the anguish caused by such a pregnancy would constitute grave injury to mental health of the woman. [Danbahadur Rajkaram Yadav v. State of Maharashtra, 2017 SCC OnLine Bom 8900, order dated 13.10.2017]

 

 

Case BriefsSupreme Court

Supreme Court: In the case where a 35-year-old woman victim of sexual assault had sought for termination of pregnancy on the ground that she is HIV positive, the Court, after considering the report of the AIIMs medical Board which stated that the procedure involved in termination of the pregnancy is risky to the life of the petitioner and the fetus in the womb, held that though there cannot be termination of pregnancy but the State of Bihar will provide all the medical facilities to the petitioner as per the treatment graph given by the doctors who are going to examine the petitioner at AIIMS through the Indira Gandhi Institute of Medical Sciences at Patna.

The Medical Board had also suggested that she is advised to continue HAART therapy and routine antenatal care, to reduce the risk of HIV transmission to the fetus/baby to the minimum. The Court hence, directed the Indira Gandhi Institute of Medical Sciences to work in coordination with AIIMS, New Delhi so that the health condition of the petitioner is not further jeopardized.

The Bench of Dipak Misra and A.M. Khanwilkar, JJ also directed the State of Bihar to pay Rs. 3,00,000 to the petitioner as compensation under the scheme of Section 357-A CrPC within 4 weeks as she has been a victim of rape. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 09.05.2017]