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2005 DIGILAW 173 (GAU)

Sorhab Ali v. State of Assam

2005-03-02

I.A.ANSARI

body2005
ORDER I.A. Ansari, J. 1. This is perhaps, one of the most unusual cases, which can enter the precincts of the High Court seeking to invoke extra-ordinary jurisdiction conferred on the High Court Under Article 226/227 of the Constitution of India. The case, though not unique, is unusual and requires delicately balanced gender sensitive approach by the High Court. 2. Pursuant to an FIR lodged with Rangia police station on 16.12.2004, Rangia Police Station Case No. 467/2004 Under Section 366A IPC was registered against accused Pulu Thakuria, the case of the informant being, in brief, thus: While the informant's daughter, (hereinafter referred to as "Miss 'X'"), aged about 14 years and a student of Class-IX was, on 15.12.2004 at about 12.30 P.M. on her way to her school for appearing in her examination, she disappeared and further enquiry by the informant revealed that accused Pulu Thakuria had also disappeared from his house. During the course of investigation, on receiving information from the investigating agency, the police in the State of Uttar Pradesh recovered the girl from a house, which allegedly belongs to the brother of the accused. The accused aforementioned was also arrested and in course of time, a statement of Miss 'X' was recorded Under Section 164 Code of Criminal Procedure wherein she stated to the effect that accused had cohabitated with her. As a result of this cohabitation, Miss 'X' became pregnant and while she completed almost eight weeks of pregnancy, as detected by the doctors, the informant filed a petition in the Court of learned Sub-Divisional Judicial Magistrate, Rangia, in connection with the case aforementioned seeking appropriate directions for termination of his said daughter's pregnancy. The said petition was rejected by order, dated 18.02.2005. The informant, then, filed another petition on 22.2.2005, for appropriate directions from the Court of learned SDJM, Rangia, in terms of Section3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as "the Act of 1971"). The learned Court below considered the petition and rejected the same on the ground that it had no jurisdiction to entertain such petition. It was, in such a situation, that the informant has, now, approached this Court seeking, as indicated hereinabove, issuance of appropriate writ(s). 3. I have heard Mr. BD Konwar, learned Counsel for the Petitioner, and Mr. A. Thakur, learned Govt. Advocate, Assam, appearing for the State Respondents, I have also heard Mr. It was, in such a situation, that the informant has, now, approached this Court seeking, as indicated hereinabove, issuance of appropriate writ(s). 3. I have heard Mr. BD Konwar, learned Counsel for the Petitioner, and Mr. A. Thakur, learned Govt. Advocate, Assam, appearing for the State Respondents, I have also heard Mr. S. Katoky, learned amicus curiae. 4. The termination of pregnancy, in India, is regulated by the Act, of 1971. It is Section 3, which deals with termination of pregnancy by registered medical practitioners. For the sake of convenience, relevant portion of Section 3 is quoted hereinbelow: 3. When pregnancies may be terminated by registered medical practitioners: (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of the Act. (2) Subject to the provisions of Sub-section (4), a pregnancy may be terminated by a registered medical practitioner, (a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or (b) where the length of 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 (i) the 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; or (ii) 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. Explanation 1.: 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. (3) . . . (4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or who, having attained the age of eighteen years, is a (mentally ill person), shall be terminated except with the consent in writing of her guardian. 5. (3) . . . (4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or who, having attained the age of eighteen years, is a (mentally ill person), shall be terminated except with the consent in writing of her guardian. 5. A careful reading Sub-section (2)(a) of Section 3 shows that a pregnancy may be terminated by a registered medical practitioner, where the length of pregnancy does not exceed 12 weeks, provided that such registered medical practitioner is of the opinion, formed in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or risk of grave injury to her physical or mental health; or (ii) 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. 6. The Explanation 1 to Sub-section (2)(a) of Section 3 shows that 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. 7. Coupled with the above, it is also imperative to note that in case of a pregnant woman, who has not attained the age of eighteen years, her pregnancy can be terminated, in the light of Section 3(4)(a) of the Act of 1971, with the consent, in writing, of her guardian. 8. In the present case, since the Petitioner is, admittedly, father of Miss 'X', who is below, prima facie the age of eighteen years, his consent to terminate pregnancy of his said daughter would amount to sufficient compliance of the requirements of Section 3 of the Act of 1971, and when the Petitioner, as father of the said daughter, has applied to this Court for appropriate directions, denial by this Court to respond to the Petitioner's passionate plea would cause serious miscarriage of justice. 9. In the case at hand, without entering into the question as to whether the rape was committed or not on the alleged victim, what is imperative to note is that there is no dispute, at this stage that Miss 'X' is below the age of 18 years and she claims, as already indicated hereinabove, that the accused had cohabitated with her. In view of the fact that Miss 'X' is, at this stage, prima facie below the age of 18 years, the alleged cohabitation with the accused would statutorily be without her consent and would be treated as an offence of rape punishable under Section 376 IPC. Whether the allegations levelled by the informant and her daughter i.e. Miss 'X' against the said accused is true or not is not material in the present writ petition; what is material is the fact that according to the materials on record, including the statement of the alleged victim, she presently carries pregnancy caused as a result of the alleged rape committed on her by the accused. In a situation, such as this, when the victim suffers from anguish, it would constitute a grave injury to her mental health and in such circumstances, termination of her pregnancy by a registered medical practitioner is permitted and will not constitute any offence. To put it differently, for attracting the provisions of explanation 1 to Sub-section (2) of Section 3, proof of rape is not required. A mere allegation by a pregnant woman that she has become pregnant as a result of rape committed on her and she has been suffering from mental anxiety would constitute a grave injury to her mental health and in such circumstances, a registered medical practitioner can terminate the pregnancy. 10. Considering, therefore, the matter in its entirety and in the interest of justice, Respondent No. 3, namely, Superintendent, Gauhati Medical College Hospital, Guwahati-1 is hereby directed to admit the informant's said daughter, namely, Miss Sarita Begum @ Sabita Begum at Gauhati Medical College Hospital and do the needful in accordance with law, for terminating her pregnancy. 11. No observation made hereinbelow by this Court shall be construed to convey that the plea of the informant and/or his daughter that the alleged victim is below the age of 18 years and/or that the accused Pulu Thakuria had committed rape on her stands proved. 12. Send forthwith a copy of this order to the Respondent No. 3, namely, Superintendent, Gauhati Medical College Hospital, Guwahati-1. Also send forthwith a copy of this order to the learned Sib-Divisional Judicial Magistrate, Rangia. 13. With the above observations and directions, this writ petition shall stand disposed of.