Case BriefsHigh Courts

Orissa High Court: Biswanath Rath J., allowed the petition in part and laid down comprehensive guidelines for the state to follow in like cases and interpreted the various provisions of The Medical Termination of Pregnancy Act, 1971 i.e. MTP Act, 1971; The Medical Termination of Pregnancy Rules, 2003, i.e. MTP Rules, 2003 and The Medical Termination of Pregnancy Regulations, 2003 i.e. MTP Regulations, 2003 (hereinafter referred) keeping in mind the intent of the legislation.

The background of the case is that a wife of a labourer found unnatural behaviour in her physically disabled and mentally retarded daughter and on close scrutiny and soliciting came to know that she has been raped pursuant to which an FIR has been registered against accused Sili Manjhi (as named by the victim daughter) under Sections 376(2)(1), 294 and 506 Penal Code, 1860. The victim on being medically tested by medical officers at the instance of police officials was not only found to be physically handicapped and mentally retarded but also pregnant of almost four months. The instant writ petition has been filed by a desperate mother seeking permission for terminating the pregnancy of the victim daughter who is unable to take care of herself properly due to mental and physical incapacity under the provisions of MTP Act, 1971; MTP Rules, 2003 and MTP Regulations, 2003.

Counsel for the petitioner S.C. Puspalaka, A.K. Tarai, T. Priyadarshini and T. Barik prayed to grant necessary direction to the competent authority as deem fit and proper and also for granting appropriate relief not only to the victim but also to all such who have also become victim in the process.

Counsel for the State submitted that as per the report dated 13-08-2020 given by a committee formed in terms of Regulation 3 of the MTP Regulations, 2003 it is found that the victim girl is mentally retarded and that she was pregnant for four months though at some places it is mentioned as 16 weeks. Due to conflict in the duration of pregnancy as per medical examination, a second report was conducted. According to the second report dated 05-09-2020, the pregnancy period was 24 weeks. Due to such a huge difference in results in the two reports in just about 23 days, a third examination was suggested to arrive at a just conclusion.

The third and final report suggested no possibility of termination of pregnancy as termination will endanger the life of mother.

After the final report, counsel for petitioner submitted that petitioner has a disastrous financial condition and cannot take care of both victim and her child involved unless she is provided with appropriate financial and medical support.

After perusing Sections 3, 4 & 5 of the MTP Act, 1971, Rule 5 of the MTP Rules, 2003 and Regulation 3 of MTP Regulation, 2003 it is to be stated that termination of pregnancy can be allowed, if the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks but subject to however under the opinion of the two registered Medical practitioners on the issues prescribed therein and also taking care of the provisions at the Explanation ‘I’ therein. After perusal of the “Statement of Objects and Reasons” of MTP Act, 1971which states as under

 “3. There is thus avoidable wastage of the mother’s health, strength and sometimes, life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure – when there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds – such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc., and (3) eugenic grounds – where there is substantial risk that the child, if born, would suffer from deformities and diseases.”

 Hence it is amply clear that the legislative intent of the Act is to provide for termination of pregnancies in such cases on humanitarian grounds subject to the opinion of the committee of doctors. The Court also expressed its dismay and agony towards the public authorities due to negligence however unintentional and the resultant default in the two reports due to which delay happened, the cost of which will be borne by the victim.

The judgments relied on were Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 and Z v. State of Bihar, (2018) 11 SCC 572 excerpts of which are stated hereunder:

The legislative intention of the 1971 Act and the decision in Suchita Srivastava prominentaly emphasize on personal autonomy of a pregnant woman to terminate the pregnancy in terms of Section 3 of the Act. Recently, Parliament has passed the Mental Healthcare Act, 2017 which has received the assent of the President on 7-4-2017.

 “ It has to be borne in mind that element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman are not hindered. The fundamental consent relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be over-emphasised.”

Hence as per the medical reports submitted by the doctors, and the submissions made post that on behalf of the petitioners regarding taking care of the victim and its child, if financial help provided, the Court declining the relief of termination of pregnancy under the compelling reasons issued necessary direction to the State Government as a matter of future guideline involving case of this nature.

 Specific Guidelines issued for the case at hand (verbatim reproduced)

(A) Considering that the victim is suffering on account of rape committed on her and the suffering for which the authorities of the State are responsible, this Court directs the State of Odisha to pay as an immediate measure, by way of exgratia grant, a sum of Rs 5,00,000 (Rupees Five lakh) within seven days of receipt of copy of the judgment, to the victim to be kept in long term Fixed Deposit in any Nationalized Bank in the name of victim to be renewed from time to time with operation of such account by the mother of the victim. Annual interest on such Fixed Deposit will be credited to the passbook so maintained with authorization to the mother of the victim herein, to utilize the same towards her daughter’s expenditure till survival of the victim, whereafter the child will be entitled to this amount.

(B) Similarly a further sum of Rs 3,00,000 (Rupees Three lakh) in case of male child and in the event the victim gives birth to a girl child then looking to the suffering of the girl child throughout her life, for the peculiar circumstance involved herein, a sum of Rs.5,00,000/- (Rupees Five lakh) to at least make sure that the girl child does not suffer throughout her life, amount as appropriate, shall also be released by way of ex-gratia grant in favour of child within at least ten days of such birth. Here also the amount will be kept in Fixed Deposit in any nationalized Bank by opening a Savings Bank Account in the name of the child. This Account will also be run in the name of minor child to be operated by the maternal Grandmother with scope for renewal of the Fixed Deposit from time to time at least till the child becomes major. Interest so yielded through the F.D. shall be accounted to the SB Account Passbook in the name of minor and to be operated by maternal grandmother only and utilized for the purpose of meeting expenditure on child. The child will ultimately be the owner of such amount once he/she becomes major.

(C) Amount granted by way of ex gratia under Item Nos.1 and 2 shall however be in addition to grant of any payment to the victim and the child on application of The Victim Compensation Scheme under the provisions of Section 357-A of the Code of Criminal Procedure decided by trial court or any other authority competent to do so.

(D) Considering the mental condition of the victim and financial condition of the family, utmost care of the victim is to be taken in continuation of her pregnancy. The best medical facility be made available so as to ensure proper care and supervision during the period of pregnancy as well as postnatal care with the supervision of Doctors in the S.C.B Medical College & Hospital, Cuttack with assistance of team of Doctors at the District Medical Level. Keeping in view the report dated 12.09.2020 the delivery of the victim shall take place only in the S.C.B. Medical College & Hospital, Cuttack.

(E) Looking to the mental retardness along with physical handicapness in the victim, there may be periodical check-up of the victim by a Psychiatric Expert and other related doctors required on requisition of the CDMO. The Superintendent, SCB Medical College and Hospital, Cuttack will ensure such assistance.

(F) The entire transport, medical and medicinal expenses including accommodation of the victim and her mother, if necessary during treatment, shall be the responsibility of the District Administration.

(G) The entire education of the child will be the responsibility of the State.

(H) In the event any grievance arises involving providing any other assistance to the victim and/or the child, it shall be open to the petitioner to first approach the Collector of the District on the basis of direction herein and in case of failure in responding to the genuine asking, it will be open to the victim’s mother and child on attaining his/her majority to approach the High Court of Orissa in filing appropriate application.

(I) Looking to the condition of victim, this Court also observes, the child to be born shall be given proper treatment and nutrition by the State and if any medical aid is necessary it shall also be provided to him/her by the State at least till the child is sufficiently grown up.

(J) Looking to the family of the victim runs on the sole income of the husband of the petitioner being a labourer, to see that the petitioner while maintaining her family will also be able to look after the victim and in future the child to take birth, this Court directs the District Collector to depute a competent officer to the residence of the petitioner to assess the capacity of subsistence in her and based on detailed assessment of their survivability, the Collector shall take decision on providing further assistance through any of the Central Scheme available for the purpose, if any, by completing the entire exercise within four weeks from the date of judgment.

(K) To protect the future of child and to see there is no mismanagement of fund provided both to the victim and the child by direction of this Court, this Court further directs that the Secretary, District Legal Services Authority shall have supervision on the spending by the mother against the account involving both the victim as well as the child so long as the victim survives and the child becomes major. The Secretary is also authorized, in the event he finds any irregularity in the spending of funds or mismanagement of funds involved by the mother, the petitioner herein, involving both the accounts, may seek leave of the High Court for any other mode of operation.

General Guidelines issued (verbatim reproduced)

(i) Once an incident of rape; be it on minor, minor and mentally retarded, minor and physically handicapped, unmarried major, married major, mentally retarded major and physically handicapped major is made to Police within eight weeks period, the Police and the C.D.M.O will take consent of the guardian-mother in case of minor, minor and mentally retarded, minor and physically handicapped as to whether they are interested to continue with pregnancy or interested in termination? In case of major and physically handicapped, consent of such victim and in case major but mentally retarded, consent of mother of such victim shall be taken within same time as to whether the victim should continue with pregnancy or interested in termination. This Court here clarifies, in case there is no interest shown for continuing with pregnancy, immediately after the 1st report of Committee the local Chief District Medical Officer should undertake the exercise of termination but in terms of the Medical Termination of Pregnancy Act, 1971. In case interest for termination is not shown then-Police authority along with Chief District Medical Officer is to take care of both mother and child in womb involving pre-birth care and postbirth care for at least till a period of one year after birth takes place. Further, in case of an unmarried major and married major, procedure indicated hereinabove shall also be followed but however with consent of major girl. In case of termination of pregnancy, the C.D.M.O shall take DNA sample of child to ensure its handing over to Investigating Agency, so as to be forwarded to the concerned Court for requirement, if any, there in the criminal trial.

(ii) To maintain secrecy of her pregnancy and termination, the State will ensure, if necessary, to handover such mother to remain in custody of Woman Rehabilitation Centre until her delivery and convalescence.

(iii) In case victim and her mother wish to live in their own residence, they may do so but will be provided all medical help by the State Authority at the cost of the State.

(iv) In required cases, the State will also permit the girl’s mother to either live with her or regular visit to give moral and emotional support and all medical support will be extended by the State through such Institution.

(v) In case of involvement of child through physically handicapped and/or mentally retarded woman subject to medical assessment that such mother is unable to take care of the child born provided there is no elder member coming forward to take care of such child, keeping in view the welfare of the child he or she may be taken care under the Juvenile Justice care mechanism involving agency engaged for such purpose and for about at least 12 months such child will not be given in adoption. This is, however, if there is nobody in the family to take care of such child in course of time.

(vi) In the entire process, all concerned will ensure that secrecy of pregnancy, anonymity of the petitioner and the child to be born is maintained.

vii. In cases it shall equally be the responsibility of the applicant society to ensure that the child does not know about his/her mother and of course about the incident.

viii. There should be immediate grant of exgratia-cum compensation subject to the further grant of victim compensation involving the criminal trial.

(ix) Considering such incidence occurring for failure of Law and Order Authority in case of requirement of high level treatment of rape victim or the child born in such process, the victim and/or the child will be provided the highest level of treatment at the cost of the State including the attendants journey, accommodation and fooding cost, if any.

(x) Report of the Doctor or team of Doctor, as the case may be, obtained with all promptitude and any delay at the level of State Authority shall lead to fixation of accountability and responsibility against all such involved.

(xi) When a pregnant mother is required for examination by a Medical Board for the purpose of termination, it must include apart from Obstetrics and Gynecology also (i) Paediatrics, (ii) Psychiatry/Psyochology, (iii) Radiology/Sonography, (iv) from field of Medicine with inclusion of tests involving foetus also Mental Health Care Act, 2017.

(xii) Constitution and establishment as expeditiously as possible Medical Boards under the provisions of MTP Act, 1971, in each District to fasten examination and effective action involving such cases.

(xiii). District Level Committees to ensure that there are sufficient approved places in terms of Section 4(b) of the MTP Act, 1971 in each districts of the State of Odisha. Chief District Medical Officers involved undertake periodic instruction of such approved places following rule 6 of the MTP Rules, 2003 and take immediate measure to remove difficulties if any. State in its appropriate Departments will have the obligation to co-operate in such matters.

(xiv) If a woman reports with a pregnancy resulting from an assault, she is to be given the report of undergoing an abortion and protocols for the Medical Termination of Pregnancy Act are to be followed. Further with preservation of products of conception (POC) be sent to proper custody as evidence and other required purpose under the direction of the Court of competent authority including DNA Test, if any.

(xv) There should also be strict following of User Handbook on Protection of Children from Sexual Offences Act, 2012.

The copy of the judgment was also directed to be supplied to Secretary to Government in Health Department, Secretary to Government in Women & Child Care Department, Secretary to Government in Home Department, Chairperson of the State Women Commission, Director, Medical Education and Technology and Superintendents of all the three Premier Medical College & Hospital of the State and also to all the District Judges, who in turn shall bring the same to the notice of the Sessions Court(s) dealing with sexual offences, the Presiding Officer, POCSO Court, the Principal Magistrate of Juvenile Justice Board under its jurisdiction and to the Member Secretary of State Legal Services Authority for bringing it to the notice of the Chairman and the Secretary of District Legal Services Authority for their cooperation and coordination and its effective implementation.

In view of the above, the petition allowed in part and disposed off.[Runa Majhi v. State of Odisha, WP (C) No. 21947 of 2020, decided on 14-09-2020 ]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of L.T.B. Dehideniya, S. Thurairaja and E.A.G.R. Amarasekara, JJ. contemplated a matter of an Application under Article 17 and 126 of the Constitution of Sri Lanka, where the petitioner argued for his Fundamental Rights which were violated by the State.

Minimal facts relevant for the proper appreciation are that the petitioner felt discriminated for the appointment of Assistant Superintendent of Police on the basis of his marital status under Article 12(1). He applied for the post of A.S.P. and succeeded in the written exam as well as the interview. Subsequently, before the final interview, he solemnized his marriage. Before the final appointment was given, the Petitioner had contracted his marriage. When he submitted his marriage certificate, authorities had disqualified for selection.

The petitioner had submitted two important matters to be adjudicated, first that whether such rejection on the basis of marital status is unconstitutional and in violation of inter-alia the equality which is guaranteed, second that In any event, whether there was a prohibition at all, for married persons to be denied the appointment. He relied on the International Covenant for Civil and Political Rights (ICCPR), Constitution and General Marriages Ordinance which protects such right to get married. Reference to U.S.A and Nigeria was placed upon by the petitioner to which the Supreme Court stated that, “Here, we basically followed the discipline in the military services from British with more specialization in domestic values. Hence, the order of discipline in uniformed services cannot be easily compared with other jurisdictions”.

The Attorney General for Sri Lanka stated that the classification was based on rational and disciplinary matters of uniformed services, it was for the better training of the officers. The Respondents submitted that, the Petitioner had applied on an advertisement published in Gazette according to the said Gazette; the Open Competitive Examination for the Selections of Assistant Superintendent of Police was called under several categories. Among many, one of the requirements was to be unmarried. Except for the Ordinary Police Service Category at other positions are more technical and specialized in a certain field of work. Further, it was observed that, those are open to female candidates too. The reason quoted for such condition was, ‘Ordinary Police Service category’ was in charge of the law and order, which obviously needed strenuous physical and weapon training, hence the appointing authorities had specified that, these candidates should be unmarried with less or no family commitment for the purpose of training. Further they relied on Air India v. Nergesh Meerza, (1981) 4 SCC 335, where the Supreme Court of India held that, “Based on reasonable classification that requiring air hostesses to be unmarried for period of four years after getting employment was not a violation of the equality provision, however, that requiring them to leave employment after having children was against the equality provision.”

The petitioner bought an argument that the word “candidate” was not to be applied to Petitioner, because he was already selected, hence his status of marriage should not be questioned. The requirement of unmarried was for the purpose of training after the appointment. Therefore requirement was applicable until the conclusion of selection, training and the probation period or until the period specified by the appointing authority.

In view of the above, the Court found that there was no discrimination by the State and such condition was well drafted for the specified post. Hence it was held that no violation of the Fundamental Right of the petitioner.[Rubasin Gamage Indika Athula v. Inspector General of Police, 2019 SCC OnLine SL SC 4, decided on 07-06-2019]

Case BriefsHigh Courts

Gauhati High Court: In a writ petition filed for entitlement of 50% dues of the Contributory Provident Fund (CPF) of the deceased brother of the petitioner, a Single Judge Bench comprising of Hrishikesh, J. gave four week’s time to the petitioner to bring material to show that she was a dependent member.

The petitioner was nominated by her late brother (FCI employee) for 50% share in the CPF. The remaining share was to be given to the wife of the deceased. The petitioner claimed the said share. However, the same was denied by the respondent- Food Corporation of India, on the ground that the petitioner was married.

The High Court considered the submission made by the respondent that according to Rule 2 (iii) of the Contributory Provident Fund Rules (India), 1962, it is only an unmarried sister who is entitled to a share in the CPF. The petitioner submitted that indeed she was married earlier, however her relationship with her husband got estranged and she was now divorced. The Court held that apart from the mentioning of the maintenance proceedings initiated by the petitioner against her husband, there was nothing on record to prove that she was divorced. Accordingly, the petitioner was given four week’s time to bring on record the necessary material to show that she was a dependent person on account of the dissolution of her marriage. [Nazrana Sultana Begum v. Food Corporation of India, 2018 SCC OnLine Gau 571, dated 24-05-2018]