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2019 DIGILAW 348 (KAR)

Miss L. v. State Of Karnataka

2019-02-04

ALOK ARADHE

body2019
ORDER : Alok Aradhe, J. - Mr. P.D. Subrahmanya, learned counsel for the petitioner. Mr. Y.D. Harsha, learned Additional Government Advocate for the respondent. 2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally. 3. In this petition, the petitioner inter alia seeks a direction to respondent Nos. 1 and 2 to medically terminate the pregnancy of the petitioner after obtaining the opinion of the expert body of the doctors on the physical and mental health of the petitioner at the earliest. Alternatively, the petitioner inter alia has prayed for a direction to respondent Nos. 1 and 4 to grant suitable compensation to the petitioner and to take care of the petitioner during her pregnancy and post delivery as well as the child up to a suitable period. The petitioner also seeks a direction to aforesaid respondents to bear medical expenses by extending facilities under Women and Child Development Programme in the State. 4. Facts giving rise to filing of the writ petition briefly stated may be summarized as under: The petitioner Miss L. is admittedly a minor. She was subjected to heinous offence of rape by the accused, in pursuance of which Crime No. 298/2018 on 13.11.2018 was registered against the accused. The petitioner did not disclose the incident to anybody including her family members out of fear from the accused. The petitioner complained of pain and discomfort in her stomach. Thereupon, she was taken to Mc. Gann Hospital, Shivamogga by her mother on 12.11.2018. Thereupon, on medical examination of the petitioner, it was learnt that petitioner has been five months pregnant. The petitioner was thereafter examined in the respondent No. 2 hospital on 12.11.2018 and it was found that she was 22 weeks pregnant. 5. Thereupon, on intimation made by the respondent No. 2 hospital, the police authorities registered First Information Report in Crime No. 294/2018 for the offences punishable under Section 376 of the Indian Penal Code, 1860, and also under sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012. The petitioner is a minor and is unable to bear the child. Therefore, the parents of the petitioner jointly requested the respondent No. 2 hospital to medically terminate the pregnancy. The petitioner is a minor and is unable to bear the child. Therefore, the parents of the petitioner jointly requested the respondent No. 2 hospital to medically terminate the pregnancy. However, no action in the matter was taken as under section 3 of Medical Termination of Pregnancy Act, 1971, pregnancy of more than 20 weeks could not be permitted to be terminated. In the aforesaid factual background, the petitioner has approached this Court seeking the relief supra. 6. Learned counsel for the petitioner submitted that the petitioner is a minor and is incapable of managing the responsibility of the child at this early age. It is also submitted that in case the petitioner is not granted the permission for medical termination of pregnancy, then respondent Nos. 1 to 4 should be directed to grant suitable compensation to the petitioner and to take care of the petitioner during pregnancy and post pregnancy period and also the child up to a suitable period. On the other hand, learned Additional Government Advocate submitted that in view of the medical report, the petitioner cannot be allowed for termination of pregnancy as there is threat to her life. It is pointed out that the State of Karnataka has framed the Karnataka Victim Compensation Scheme, 2011 and if the petitioner makes an application to the concerned District Authority, she is entitled to compensation of Rs. 3 lakhs. The learned Additional Government Advocate has also invited the attention of this Court to the Government Order dated 15.10.2014 and has submitted that in view of the aforesaid Government Order, the Deputy Commissioner is entitled to grant compensation to the tune of Rs. 75,000/-. 7. I have considered the submissions made by the learned counsel for the parties. A Bench of this Court by an order dated 10.01.2019 had directed the respondent No. 2 to constitute a Board of Doctors and to examine the petitioner and submit a report to this Court whether the petitioner can be allowed to terminate the pregnancy. In pursuance of the aforesaid order, the petitioner was examined by the Board of Doctors and the report was submitted to this Court. In the report, it is submitted that the petitioner is 31 weeks into pregnancy and termination of pregnancy at this stage could endanger her life. In pursuance of the aforesaid order, the petitioner was examined by the Board of Doctors and the report was submitted to this Court. In the report, it is submitted that the petitioner is 31 weeks into pregnancy and termination of pregnancy at this stage could endanger her life. The aforesaid fact was taken note of by a Bench of this Court, by order dated 16.01.2019 and directed the matter to be listed for consideration of alternative prayer. Therefore, the only question which now survives for consideration is with regard to grant of alternative prayer of compensation. 8. The petitioner is admittedly a minor and has a right to live with dignity under Article 21 of the Constitution of India. It is well settled in law that right to life includes right to live with human dignity and rape violates this right of women. The right to life has been recognized as a basic human right and has to be in consonance with the Universal Declaration of Human Rights, 1948. It has been held that rape is an offence which is violative of fundamental right of a person directed under Article 21 of Constitution of India and where public functionaries are involved, and the matter relates to violation of fundamental rights or enforcement of public duties, the remedy would be available under the public law notwithstanding that a suit could be filed for damages under private law. (See 'Chairman, Railway Board and others v. Chandrima Das (Mrs.) and others- (2000) 2 SCC 465 : ( AIR 2000 SC 988 ); ' Delhi Jan Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers and others- (2011) 8 SCC 568 : (2011 AIR SCW 4916); Deputy Commissioner, Dharwad District, Dharwad and others v. Shivakka and others (2011) 12 SCC 427, ' Indian Woman Says Gang-Raped on Orders of Village Court Published in Business And Financial News dated 23.1.2014 In Re (2014) 4 SCC 786 : ( AIR 2014 SC 2816 ); ' Sanjay Gupta and others v. State of Uttar Pradesh and others- (2015) 5 SCC 283 : ( AIR 2014 SC 2982 ) and Ms. Z. v. State of Bihar and others- AIR 2017 SC 3908 . The State is under an obligation to prevent inhuman or degrading treatment to citizens. (See ' DSD and another v. Metropolitan Police Commissioner (2018) UKSC 11. Z. v. State of Bihar and others- AIR 2017 SC 3908 . The State is under an obligation to prevent inhuman or degrading treatment to citizens. (See ' DSD and another v. Metropolitan Police Commissioner (2018) UKSC 11. The petitioner, unfortunately at the tender age, has undergone humiliation, trauma and pain and is faced with an unwanted pregnancy. The human dignity over a period of time has evolved into right to dignity and therefore, human dignity is a constitutional principle rather than a free standing fundamental right. (See ' K.S. Puttaswamy (Retired) and another (Aadhar) v. Union of India and another- (2019) 1 SCC 1 . 9. It is well settled in law that no amount of money can restore the dignity and confidence of the victim. However, the financial aid can be crucial in the aftermath of the crime. The Hon'ble Supreme Court, while taking note of the aforesaid aspect of the matter in the case of 'Tekan alias Tekram v. State of Madhya Pradesh (Now Chhattisgarh) (2016) 4 SCC 461 : ( AIR 2016 SC 817 ), has directed all the States and Union Territories to make an endeavour to formulate an uniform scheme under Section 357-A of the Code of Criminal Procedure, 1973. Admittedly, the State of Karnataka has framed the Karna-taka Victim Compensation Scheme, 2011. It is not in dispute that under the aforesaid scheme, the petitioner is entitled to payment of compensation of Rs. 3 lakhs under the aforesaid scheme. It is also not in dispute that in view of the Government Order dated 15.10.2014, the Deputy Commissioner is entitled to make payment of compensation to the extent of Rs. 75,000/-. Therefore, I deem it appropriate to issue the following directions: (1) On completion of requisite formalities by the petitioner, the concerned District Legal Services Authority shall release a sum of Rs. 3 lakhs to the petitioner within a period of three weeks from the date of receipt of certified copy of the order passed today. (2) The concerned Deputy Commissioner to release a sum of Rs. 75,000/- by way of compensation in favour of petitioner in view of Government Order dated 15.10.2014 within a period of three weeks from the date of receipt of certified copy of the order passed today. (3) The District Hospital, Shivammoga shall periodically examine the petitioner and provide requisite treatment to the petitioner. 75,000/- by way of compensation in favour of petitioner in view of Government Order dated 15.10.2014 within a period of three weeks from the date of receipt of certified copy of the order passed today. (3) The District Hospital, Shivammoga shall periodically examine the petitioner and provide requisite treatment to the petitioner. (4) The District Hospital, Shivamogga shall ensure that safe delivery of the child of the petitioner takes place and the Chief Medical Officer shall ensure that the petitioner and her child are taken care of during the period of pregnancy and post pregnancy period. (5) In case victim and her family members inform the Competent Authority of their unwillingness to keep the child, then efforts should be made to make necessary arrangement for adoption of child by involving the concerned official from Central Adoption Resource Authority or any other concerned authority. All the expenses incurred in this behalf shall be borne by the Department of Health and Family Welfare, State of Karnataka. (6) The Registry is directed not to mention the name of the petitioner in the cause list, judgment or order but they may refer to her name by mentioning the first alphabet of her name. 10. With the foresaid direction, the petition is disposed. 11. Order accordingly.