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2018 DIGILAW 3243 (MAD)

Minor R. Deepakala, Rep. by her father & natural guardian, Raju v. District Collector, Coimbatore

2018-09-26

R.MAHADEVAN

body2018
JUDGMENT : 1. The prayer made in this writ petition is to issue a mandamus, directing the second respondent to medically terminate the unwanted pregnancy of the petitioner - minor girl aged about 17 years, at the earliest. 2. The case of the petitioner is that as her parents are working, she left alone in the home. Taking advantage of the situation, one Vicky @ Vignesh sexually exploited her, due to which, she became pregnant. According to the petitioner, a case in Crime No.1062 of 2018 was registered against the said Vicky @ Vignesh for the offences punishable under Sections 5(i)(ii) and 6 of the Protection of Child from Sexual Offences Act and the same is pending investigation. Since she is not prepared to give birth to a child and also wants to pursue her studies, she along with her parent approached the second respondent for terminating the pregnancy. But the second respondent refused to do so, as the petitioner is a minor girl. Hence, this writ petition. 3. Heard both sides and perused the records. 4. Before going into the issue involved herein, it is but necessary to refer to Section 3 of the Medical Termination of Pregnancy Act, 1971, which reads as follows : “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 this 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 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,- (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury 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. 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 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. Explanation 2.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment. (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 lunatic, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in Cl.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.” 5. It is manifest from the above provision that the intention behind the same is to save the pregnant woman; so far as the medical practitioners are concerned, if they find that the pregnant woman happens to be a minor, they must take care to get the consent of the guardian in writing; and for termination, length of pregnancy should not exceed twenty weeks. 6. In the present case, the petitioner is pregnant of 10 weeks gestational age, as per the medical examination and report. She and her father expressed their willingness for termination of pregnancy for securing the minor girl's health and life. 7. 6. In the present case, the petitioner is pregnant of 10 weeks gestational age, as per the medical examination and report. She and her father expressed their willingness for termination of pregnancy for securing the minor girl's health and life. 7. However, on 14.09.2018, when the matter was taken up for consideration, this Court directed the learned Special Government Pleader appearing for the respondents, to get opinion from the Head of the Department of Obstetrics and Gynecology, Coimbatore Medical College Hospital, Coimbatore-18, about the present status of foetus of the petitioner. 8. Accordingly, the Professor and Head, the Department of Obstetrics and Gynecology, Coimbatore Medical College Hospital, Coimbatore - 18 has sent a communication dated 18.09.2018 to the Dean, Coimbatore Medical College Hospital, Coimbatore, wherein, it has been opined as follows: “Miss. Deepakala D/o. Mr. Raju, the above mentioned victim is pregnant of 10 weeks gestational age as per her statement (last menstrual period 26.06.2018) and as per ultrasound report. As per MTP Rules, medical termination can be done upto 12 weeks of gestation with one medical officer opinion.” 9. On 19.09.2018, when the writ petition was taken up for hearing, this Court again directed the learned Special Government Pleader to get instructions with regard to the medical termination of the pregnancy of the petitioner. 10. Pursuant to the aforesaid direction, one Dr. J. Prabha, Associate Professor in OG, Government Coimbatore Medical College & Hospital, Coimbatore, is present today. She is of the opinion that the minor girl is pregnant of 10 weeks gestational age and as per the medical records and medical examination, she is fit to undergo medical termination of pregnancy and if pregnancy is continued, it may harm her physically and mentally, since she is a minor. 11. The petitioner - minor girl and her father are also present in person, today. When this Court informed them about the Doctor's suggestion, they have also agreed for termination of pregnancy. 12. It is pertinent to note here that in an identical case, this Court, vide order dated 28.04.2018 in WP.No.10155 of 2018, has passed the following order : “5. Learned counsel for the petitioner submitted that while subjecting the minor girl for termination of 18 weeks gestational age single intra uterine pregnancy, the fetus shall be preserved for the purpose of taking DNA and other tests. Dr. Learned counsel for the petitioner submitted that while subjecting the minor girl for termination of 18 weeks gestational age single intra uterine pregnancy, the fetus shall be preserved for the purpose of taking DNA and other tests. Dr. V. Vanitha, Head of the Department of Obstetrics and Gynecology, Chengalpattu Medical College and Hospital, Chengalpattu, agreed to the same and submitted that the fetus to be taken from the womb of the minor girl will be sent for anaylsis and thereafter, it will be preserved. 6. In view of the above, this Court directs the Dean, Chengalpet Medical College Hospital, Chengalpet, Kancheepuram District/third respondent to do the needful by terminating the single intra uterine pregnancy of about 18 weeks gestational age.” 13. This Court is of the view, as the petitioner herein is similarly placed person, the aforesaid order is squarely applicable to the facts of the present case. 14. In view of the facts that the petitioner is pregnant of 10 weeks gestational age; she along with her father expressed their willingness for termination of pregnancy, as suggested by the Associate Professor in OG, Government Coimbatore Medical College & Hospital, Coimbatore; and the continuation of the pregnancy would affect her health as well as career, this Court directs the second respondent/ Dean, Coimbatore Medical College and Hospital, Coimbatore to do the needful by terminating the pregnancy of the petitioner about 10 weeks gestational age. Further, following the earlier order of this Court (cited supra), the fetus to be taken from the womb of the minor girl will be sent for analysis and thereafter, it will be preserved for the purpose of taking DNA and other tests. 15. This Writ Petition stands disposed of in the above terms. No costs.