Allowing the plea of the petitioner (minor appearing
through her guardian) wanting to medically terminate her pregnancy that
resulted due to rape being committed upon her, the Court directed the District
Medical Officer, Hisar to constitute a committee of 2 doctors to examine her
and get her pregnancy terminated if she is in the right state of health. The
Court referring an earlier case on this point reiterated the directions stating
that in case where a rape victim irrespective of the fact that whether she is
major or minor, if found pregnant and does not want to retain the foetus, then
such pregnancy must be treated as involving grave mental injury and medical
assistance shall be provided and the feasibility of terminating such pregnancy
shall be considered.
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.20783 of 2014
Date of Decision.07.10.2014
Vijender ......Petitioner
Versus
State of Haryana and others ......Respondents
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. The writ petition is quite a needless exercise.
2. It is a case of a victim of rape seeking for assistance of
Court to secure a medical termination of pregnancy through her
guardian father. A complaint of rape has been filed and registered in
FIR No.346 dated 17.09.2014 under Sections 376(2)/376(2)(1)/376(2)(n)/
506 IPC. The petitioner has approached the Court of JMIC, Hisar for
permission to terminate the pregnancy. The JMIC, Hisar has dismissed
the petition stating that there is no provision in law to entertain such an
application.
3. It is unfortunate that a Judge had taken an unrealistic view
and dismissed the petition. It was, no doubt, not necessary for the
petitioner to apply to Court for permission. All that the law requires in
a case where a person is victim of rape is to secure the decision of two
doctors committee if the pregnancy is more than 12 weeks. The District
Medical Officer at the General Hospital, Hisar is directed to constitute a
committee of two doctors, examine the rape victim who is said to be
pregnant and if she is healthy to withstand the procedure for
termination of pregnancy to take such decision in the manner
contemplated under the Medical Termination of Pregnancy Act, 1971
and carry out the procedure forthwith. Since the prosecution of the
case of rape instituted against a person who was responsible for the
pregnancy of the minor child is reported to be pending, the hospital may
also preserve the tissue of the foetus and arrange to have the tissue
stored in an appropriate lab maintained by the Government and inform
the jurisdictional police of the same so that the lab test relating to the
person responsible for the pregnancy is collected. Before doing the
procedure of termination of pregnancy, the hospital shall also elicit the
consent of the petitioner and the concurrence of the rape victim.
4. I dispense with notice having regard to the urgency of the
matter involved so that there is no time lost. The State is not likely to
be prejudiced.
5. There has been a similar petition before this Court on a
previous occasion which was disposed of in CWP No.14058 of 2014
decided on 02.08.2014. I had directed that in every case where a
complaint of rape is lodged and the victim is found to have become
pregnant and she does not want to retain the foetus, the pregnancy
itself may be treated as involving grave mental injury and the medical
assistance must be secured to the rape victim at the nearest
Government hospital with a request through the rape victim or the
guardian depending on whether the person is a minor or not to take an
opinion from the competent medical personnel about the feasibility of
termination of pregnancy and carry out the procedure without wasting
any time. A rape victim shall not be further traumatized by putting
through a needless process of approaching Courts for taking permission.
The Medical Termination of Pregnancy Act does not contemplate such a
procedure at all and the medical personnel before whom the person
shows up is bound to respond to an information regarding complaint of
rape and if evidence is available that the person is a victim of rape, the
medical personnel will take decision regarding the termination of
pregnancy and carry out the procedure. If a plea for termination of
pregnancy is made that should be dealt with such sensitivity as the
occasion demands.
6. In the writ petition referred to above in CWP No.14058 of
2014, this Court has directed the order copy to be dispatched to the
Director General of Police for the States of Punjab, Haryana and Union
Territory, Chandigarh. If this direction had been taken seriously and the
information must have percolated to the SHO, he would not have forced
the petitioner to approach this Court for appropriate direction. This
order is directed to be sent to the Director General of Police, Haryana
who will in turn communicate the matter to the SHO concerned and
elicit the information as to why he did not assist the rape victim to
secure the medical assistance in the manner that she deserved in spite
of directions already given by this Court.
7. The writ petition is disposed of with the above directions. If
the petitioner brings the rape victim with identification and produces
the copy of this order, the District Medical Officer or the officer who
holds the power of superintendence over the facilities in the
Government Hospital, Hisar shall carry out the directions forthwith. A
copy of this order be issued under the signature of Special Secretary of
this Court.
(K. KANNAN)
October 07, 2014
In
the instant case the victim’s request to medically terminate her pregnancy was
rejected by the Court of JMIC, Hisar on the grounds that there is no legal
provision to entertain such application. The petitioner was represented by P.K.
Chugh.
Commenting
upon the refusal by JMIC, the Court stated that in cases similar to the present
case the victim should not be harassed by asking her to take permission from
the courts as the Medical Termination of Pregnancy Act does not lay down such a
procedure. The Court further observed that if a plea of termination of
pregnancy by a rape victim is made then it should be dealt with utmost
sensitivity.
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.20783 of 2014
Date of Decision.07.10.2014
Vijender ......Petitioner
Versus
State of Haryana and others ......Respondents
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. The writ petition is quite a needless exercise.
2. It is a case of a victim of rape seeking for assistance of
Court to secure a medical termination of pregnancy through her
guardian father. A complaint of rape has been filed and registered in
FIR No.346 dated 17.09.2014 under Sections 376(2)/376(2)(1)/376(2)(n)/
506 IPC. The petitioner has approached the Court of JMIC, Hisar for
permission to terminate the pregnancy. The JMIC, Hisar has dismissed
the petition stating that there is no provision in law to entertain such an
application.
3. It is unfortunate that a Judge had taken an unrealistic view
and dismissed the petition. It was, no doubt, not necessary for the
petitioner to apply to Court for permission. All that the law requires in
a case where a person is victim of rape is to secure the decision of two
doctors committee if the pregnancy is more than 12 weeks. The District
Medical Officer at the General Hospital, Hisar is directed to constitute a
committee of two doctors, examine the rape victim who is said to be
pregnant and if she is healthy to withstand the procedure for
termination of pregnancy to take such decision in the manner
contemplated under the Medical Termination of Pregnancy Act, 1971
and carry out the procedure forthwith. Since the prosecution of the
case of rape instituted against a person who was responsible for the
pregnancy of the minor child is reported to be pending, the hospital may
also preserve the tissue of the foetus and arrange to have the tissue
stored in an appropriate lab maintained by the Government and inform
the jurisdictional police of the same so that the lab test relating to the
person responsible for the pregnancy is collected. Before doing the
procedure of termination of pregnancy, the hospital shall also elicit the
consent of the petitioner and the concurrence of the rape victim.
4. I dispense with notice having regard to the urgency of the
matter involved so that there is no time lost. The State is not likely to
be prejudiced.
5. There has been a similar petition before this Court on a
previous occasion which was disposed of in CWP No.14058 of 2014
decided on 02.08.2014. I had directed that in every case where a
complaint of rape is lodged and the victim is found to have become
pregnant and she does not want to retain the foetus, the pregnancy
itself may be treated as involving grave mental injury and the medical
assistance must be secured to the rape victim at the nearest
Government hospital with a request through the rape victim or the
guardian depending on whether the person is a minor or not to take an
opinion from the competent medical personnel about the feasibility of
termination of pregnancy and carry out the procedure without wasting
any time. A rape victim shall not be further traumatized by putting
through a needless process of approaching Courts for taking permission.
The Medical Termination of Pregnancy Act does not contemplate such a
procedure at all and the medical personnel before whom the person
shows up is bound to respond to an information regarding complaint of
rape and if evidence is available that the person is a victim of rape, the
medical personnel will take decision regarding the termination of
pregnancy and carry out the procedure. If a plea for termination of
pregnancy is made that should be dealt with such sensitivity as the
occasion demands.
6. In the writ petition referred to above in CWP No.14058 of
2014, this Court has directed the order copy to be dispatched to the
Director General of Police for the States of Punjab, Haryana and Union
Territory, Chandigarh. If this direction had been taken seriously and the
information must have percolated to the SHO, he would not have forced
the petitioner to approach this Court for appropriate direction. This
order is directed to be sent to the Director General of Police, Haryana
who will in turn communicate the matter to the SHO concerned and
elicit the information as to why he did not assist the rape victim to
secure the medical assistance in the manner that she deserved in spite
of directions already given by this Court.
7. The writ petition is disposed of with the above directions. If
the petitioner brings the rape victim with identification and produces
the copy of this order, the District Medical Officer or the officer who
holds the power of superintendence over the facilities in the
Government Hospital, Hisar shall carry out the directions forthwith. A
copy of this order be issued under the signature of Special Secretary of
this Court.
(K. KANNAN)
October 07, 2014
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