X (Assumed Named of Petitioner) vs Govt. of NCT of Delhi and Another

Sunita Gupta, J.—This is a writ petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. for issuance of

appropriate directions to the respondent to facilitate medical termination of pregnancy which is likely to cause grave injury to the petitioner and put

the child at substantial risk, if born. Notice of the petition was issued to the respondents. Status report has been filed by the State wherein it is

stated that on 29th August, 2013 an information was received from J.R. Sharan, Project Co-ordinator, Rescue Foundation and Ms. Hem Lata,

Probation Officer, Rescue Foundation that 3-4 girls were forcibly kept in Kotha No. 41, 1st Floor, G.B. Road, Delhi and they were subjected to

forcible prostitution. On this information a raiding team was constituted and raid was conducted at the Kotha. Four girls, including the petitioner,

were rescued. On the statement of one of the rescued girl FIR No. 124/2013 dated 30th August, 2013 under Sections 376/365/342/109 IPC

read with Section 3/4/5/6 ITP Act was registered at Police Station Kamla Market. During investigation petitioner disclosed that she was brought

to Delhi from her village by an unknown boy and was sold at GB Road where she was compelled to do prostitution. Her statement u/s 164

Cr.P.C. was recorded wherein she supported her previous statement.

Present petition has been filed by the petitioner stating therein that she is now about 19 years of age. When the petitioner was taken by the

authorities of respondent No. 1 Nirmal Chhaya for medical examination at Deen Dayal Upadhayay Hospital, New Delhi it was found that she is

HIV positive and is about 19 weeks pregnant. She informed the authorities and the doctors that the child was conceived in forceful and undesired

sexual intercourse against her will and given her ill-health and the likelihood that the child will also be born at risk, she wishes to medically terminate

her pregnancy as it is a cause of stress and grave injury to her medical health. Since the petitioner is in the protective custody of respondent No. 1

she has not been permitted to exercise her legal rights of medically terminating her pregnancy which she expresses to cause grave threat to her

physical and mental safety. As such, it was prayed that directions be issued to the respondent to facilitate medical termination of pregnancy.

I have made inquiries from the petitioner in the presence of her counsel Ms. Nandita Roy, Advocate in my Chamber. She has expressed her

willingness to get her pregnancy terminated. She states that her parents have already died. She has a younger brother to support. She is unable to

carry her pregnancy to full term due to social stigma as she is victim of circumstances whereby she was taken to brothel and was forced to indulge

in prostitution.

In the status report filed by the State, State has given no objection if permission is granted for termination of pregnancy as it will not affect the

investigation in any manner. Superintendent, Department of Women and Child Development, Nirmal Chhaya, Jail Road has also given no objection

to the decision taken by the petitioner for terminating her pregnancy.

On 5th December, 2013, she was examined by the medical board consisting of Dr. Poonam Aggarwal and Dr. Ritu Goel and the board opined

that she is 18 months plus pregnant hence her pregnancy can be terminated after routine investigation. The victim has expressed her willingness to

terminate the pregnancy and she understands the consequences of her act.

In Suchita Srivastava and Another Vs. Chandigarh Administration, Supreme Court has held as under:

As evident from its literal description, the ""best interests"" test requires the Court to ascertain the course of action which would serve the best

interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the

feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court''s decision should be guided by

the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evidence that the woman in

question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of

reproductive rights.

A plain reading of provision in the Medical Termination of Pregnancy Act, 1971 clearly indicates that consent is an essential condition for

performing an abortion on a woman who has attained the age of majority and does not suffer any ""mental illness"". The Explanations to Section 3

have contemplated the termination of pregnancy when the same is the result of a rape or a failure of birth control methods since both of these

eventualities have been equated with a ""grave injury to the mental health"" of a woman. In such circumstances, consent of the pregnant woman is an

essential requirement for proceeding with the termination of the pregnancy u/s 3 of the Act. A woman has the option to get the pregnancy

terminated by a registered medical practitioner, if it does not exceed 12 weeks. If the duration of the pregnancy exceeds 12 weeks but does not

exceed 20 weeks such a termination can be done by not less than two registered medical practitioners, who will give the opinion whether the

continuance of the pregnancy would involve a risk to the life of the pregnant woman and grave injury to her physical and mental health.

To carry a child in her womb by a woman as a result of conception through an act of rape is extremely traumatic, humiliating and psychologically

devastating. In similar circumstances, permission was granted by this Court in Km. Mahima Vs. State and Others, X (Assumed name of the

prosecutrix) Vs. The State (N.C.T. of Delhi) and Others, and Janak Ramsang Kanzariya (Minor) thro'' Manjuben Ramsang Kanzar Vs. State of

Gujarat and Another,

The petitioner, aged 19 years, hails from poor strata of the society and is likely to face innumerable mental, physical, social and economical

problems in future. There are no reasons to prevent her not to exercise her option voluntarily in her interest.

For the foregoing reasons, the petition is allowed with the directions to respondent No. 1 to accompany the petitioner ''X'' and to produce her

before medical superintendent, Deen Dayal Upadhayay Hospital, New Delhi within three days to get her pregnancy terminated where board of

two medical practitioners would be constituted by Medical Superintendent which will take the decision immediately for termination of the

pregnancy and it will be terminated in accordance with the provision of Section 3 of the Act.

The petition is allowed in the above terms. Respondent No. 1 shall ensure that the petitioner is provided proper medicine, diet and nutritious

food as may be necessary for her health. A copy of the order be sent to Medial Superintendent, Deen Dayal Upadhayay Hospital, New Delhi. A

copy of the order be given dasti to petitioner and respondent No. 1 under the signature of the Court Master.