Topic: D. Rajeswari vs State of Tamil Nadu - terminate the pregnancy of unmarried girl

D. Rajeswari vs State Of Tamil Nadu And Others
Madras High Court -  Equivalent citations: 1996 CriLJ 3795 - Date of Judgment: 24 May, 1996

ORDER

1. The great Tamil Saint Thiruvalluvar said :-

"The touch of children is the delight of the body; the delight of the ear is the hearing of their speech".

But, here is the case, where an unmarried girl of 13 years has been knocking at the doors of this Court, the highers forum of the State, praying for issue of a direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become mentally ill and the continuance of pregnancy has caused great anguish in her mind, which would result in a grave injury to her mental health, since the pregnancy was caused by rape.

2. The petitioner D. Rajeswari, belongs to Scheduled Caste. Her father is an agricultural coolie. However, she strived hard to pursue her studies and completed her S.S.L.C. She is residing at Cheeyur Colony village, near Arakonam. She joined + 1 in the Adi-dravidar Welfare Higher Secondary School, Arakonam. Being a day Scholar, she used to go to school by train and then has to walk some distance to reach her school.

3. On 22-11-1995 at about 9.30 a.m., she got down at Arakonam Railway Station from the train and proceeded to her school by walk. On the way, she was intercepted by one Velayutham, who belongs to her village and known to her and was asked to come to a nearby house roofed with countytiles to talk to her. On his persuasion, she went there along with him. Then, she was confined in an inner room, by the said Velayutham, in that house and she was not allowed to go out.

4. On 23-11-1995, the said Valayutham brought the petitioner to Arakonam Railway Station and from there, he took her to different places. Since she was constantly threatened to accompany him, she could not raise any objection. On 24-11-1995, the Petitioner was brought by Velayutham to Ramapuram, village, where during the night, Velayutham, under threat and coercion raped her against her will. In that area, he had many friends most of them are bootleggers, distilling and selling illicit arrack with muscle power and money power. Under such circumstances, she could not do anything.

5. Thereafter, she was taken to several places, like Thozhuvur, Mannur etc. During this period also, he raped her under threat and coercion, against her will. Then, on 2-2-1996, she was forcibly taken to a nearby temple along with his friends, where Velayutham tied 'thali' around her neck against ther consent, under threat and coercion. Out of fear for life, she could not do anything.

6. On 7-2-1996, the said Velayutham forced her to share her bed with his friend one Murugapandi, in the house, in which they were staying. When she refused for the same, Velayutham, forced her and clocked her in a room, in which the said Murugapandi, was waiting. Then, she was raped by Murugapandi, while Velayutham, was waiting outside the room, like a Watchman.

7. On 8-2-1996, Velayutham took the petitioner to Maangadu village, near Poonamallee, where at the instance of Velayutham, one Punniyakodi, said to be his sister's husband raped her in a locked room. When Punniyakodi raped her forcibly, Velayutham took photographs of the raping scene. She was also compelled to stand in-nude, for taking photographs.

8. On 3-3-1996, Velayutham threatened and demanded Rs. 20,000/- from the family of the petitioner for her release and on its failure he intimidated that he would continue to indulge her in prostitution forcibly. He also stated that he would take her to Bombay and settle their life there itself. When she was not agreeable for the same, he snatched the 'thali'tied around her neck by him earlier and took away the same. He also threatened that he would murder her, if she is not amenable for his illegal activities.

9. On 4-3-1996 at about 10-30 a.m. when Velayutham was not in the house, fearing for the danger to her life, she managed to escape for the house, got a bus and then came and joined her parents in Cheyyur colony village. Thereafter, she gave a complaint to the local police, but no proper action was taken by the police, on her complaint. At this stage to her shock and consternation, she came to know that she had conceived.

10. Therefore, she gave a complaint to the Inspector of Police, All Women Police Station, the 3rd respondent herein. But the police refused to take the complaint on file. Next day, she sent a complaint to the All Women Police Station, Arakonam, by registered post. Her father also went to Avadi and presented the complaint to the Avadi Police Station, who also refused to entertain the complaint, on the ground of jurisdiction. Her father again approached All Women Police Station, Thousand Lights, Madras. Though the complaint was received by them, they expressed their inability to take the same on file and to proceed. Therefore, her father approached the Addl. Director General of Police, Madras, who in turn, assured action and directed the petitioner and her father to contact the 2nd respondent, the Deputy Inspector General of Police, Vellore, North Arcot Ambedkar District.

11. On 18-3-1996, the 2nd respondent herein, received the complaint from the petitioner and directed the petitioner to meet the Deputy Superintendent of Police, Arakonam.For nearly ten days, the petitioner was not able to meet the D.S.P. Arakonam. Ultimately on 25-3-1996, she presented the complaint in the Office of D.S.P., Arakonam. That is how, the petitioner, a school going girl of 18 years, a victim of rape had been driven from pillor to post, to set the law in motion, by giving the F.I.R.

12. At this stage, having great anguish in her mind over the continuance of the unwanted pregnancy, she become mentally shocked and having felt that the bearing of the child in her womb would agonise her entire life, she approached this Court for taking proper action on her complaint and for a direction or the medical termination of her pregnancy.

13. The kicking with the legs of a child in the womb of the pregnant woman would be a delightful feeling to her. But, in this case, the victim of 18 years pregnant girl, has come to this Court, crying with tears, that the bearing and rearing of the child in her womb has been a great distress causing traumatic and psychological shock and grave injury to her mental health, since the unwanted pregnancy was caused by rape, requesting for a direction for medical termination of pregnancy.

14. This petition was filed by the petitioner on 29-3-1996 and on 4-4-1996, while admitting the same this Court ordered notice to the respondents.

15. The 3rd respondent filed a counter on 24-4-1996, stating that a complaint was registered on 7-4-1996 in Cr.No. 2/96, for offences under Ss. 366, 376, 498-A, 376 read with Ss. 109 and 506(ii), I.P.C., against Velayutham, Murugapandi and Punniyakodi. Even according to the counter, there was an allegation of rape committed by these persons against her will in her complaint, which was registered and taken up for investigation by the 3rd respondent/police. It is also stated in the counter, that they have no objection for a direction to the medical authorities to terminate the pregnancy of the petitioner, subject to the provisions relating to the Medical Termination of Pregnancy Act.

16. This matter came up before the first vacation Court on 7-5-1996. Raman, J. of this Court considering the urgency of the matter, passed an order, giving direction to have her examined by the Superintendent, Govt. Kasturba Gandhi Hospital for Women & Children, Madras-5, as follows :- "As per Ss. 3(2)(b) and 5, it is necessary to obtain the opinion of not less than two registered medical practitioners, where the pregnancy exceeds 12 weeks but does not exceed 20 weeks. In such circumstances, the petitioner is directed to appear before the Superintendent, Govt. Kasturba Gandhi Hospital, Tripicane, Madras-5 for examination by two doctors. The said Superintendent, shall have the petitioner examined by two doctors and report on 14-5-1996. After receipt of such a report, further orders will be passed on this application".

17. In pursuance of the above order, two doctors/Members of the Medical Board, examined the petitioner on 10-5-1996 and sent a report to this Court that the petitioner was 18 weeks' pregnant, and further suggested that she must be admitted in Hospital for evaluation of her physical fitness, before she is taken up for medical termination of pregnancy. The said report reads thus :-

"D. Rajeswari who appeared before us was examined by us and advised ultrasound examination for estimation of gestational age. Clinically she is 18 weeks' pregnant with external ballotma.

Ultra sonography report is as follows :-

... On indication MTP can be done according to the law upto 20 weeks of gestation with the consent of two medical officers. This candidate D. Rajeswari is an unwed mother and she is 18 weeks' pregnant at present.

If she desires MTP, she must be admitted in the hospital and evaluation of her physical status will be done by the Anaesthetist and Physician at the time of MTP. Only after evaluation she can be taken up for MTP. After 20 weeks', MTP cannot be done".

18. Accordingly, this Court on 16-5-1996, directed the Medical Board of the Hospital to have the evaluation regarding the physical fitness and to send a report on or before 20-5-1996. This order runs as follows :- "On the appearance of the petitioner, the Chairman and Superintendent, Govt. Kasturba Gandhi Hospital for Women and Children, Madras-5 shall have the petitioner's examination for evaluation with regard to physical status by two doctors as expeditiously as possible and to send the report to this Court on or before 20-5-1996. After receipt of such a report, further orders will be passed on this application, on hearing further submissions regarding MTP."

The matter was then adjourned to 21-5-1996.

19. Thereafter, the petitioner was admitted in the Hospital, and the Medical Board conducted evaluation test on her and sent a report to this Court on 21-5-1996, stating that the petitioner was physically fit for M.T.P. That is how, the matter has come up before me for final disposal today (24-5-1996).

20. Heard Mr. Prakash, learned counsel for the petitioner and Mr. I. Subramaniam, learned Additional Public Prosecutor.

21. Curiously, in this case, learned counsel appearing for both the parties would submit and request this Court for issue of a direction for medical termination of the petitioner's pregnancy, in order to save her, who has been impregnated, due to rape by several persons, against her will, from her mental anguish and traumatic and psychological shock.

22. It will be relevant, at this stage, to take note of the provisions of Ss. 3 and 4 of the Medical Termination of Pregnancy Act, 1971. Section 3 of the Act reads thus :-

"Section 3. When pregnancies may be terminated by registered medical practitioners :-

(1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under the 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-sec. (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 to her physical or mental health; or

Explanation I - 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) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as if mentioned in sub-sec. (2), account may be taken of the pregnant woman's actual or reasonably 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 clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."

23. Section 4 of the Act, is as follows :-

"Section 4. Place where pregnancy may be terminated. No termination of pregnancy shall be made in accordance with this Act at any place other than -

(a) a hospital established or maintained by Government, or

(b) a place for the time being approved for the purposes of this Act by Government."

24. A plain reading of these sections would make it clear that with the consent of a major woman, who attained eighteen years, in the hospital, established in a place approved for the purpose of this Act by the Government, the unwanted pregnancy alleged by the pregnant woman, to have been caused by rape, can be terminated by a registered medical practitioner, on the basis of the opinion of two registered medical practitioners formed in good faith, where the length of the pregnancy exceeds 12 weeks, but does not excceed 18 weeks, in a situation, where if the pregnancy was not terminated, there would be a great injury to her physical and mental health.

25. In the light of the above provisions, this Court has to consider, whether the petitioner would come under the above contingencies as provided in the Act, entitling her to approach for a direction for M.T.P. There is no dispute regarding the fact, that she attained 18 years and a major. Admittedly, a case has been registered, on the complaint given by the petitioner against the accused persons, on the allegation that she was raped by them.

26. It is stated in paragraph 32 of the affidavit filed by her in support of the petitioner, that she became pregnant, because of the forcible rape committed by several persons, on various occasions, and because of that she had become mentally ill, and the continuance of pregnancy has caused a great anguish and grave injury, and that the bearing and rearing of the child in her womb would agonise her entire life.

27. The fact of the allegation of rape as contained in the complaint being given by the petitioner, alleging that she was forcibly raped by several persons on different occasions, the copies of petitions presented by the father of the petitioner and the allegations in the affidavit filed by the petitioner in this Court, have not been disputed by the respondents.

28. So, if the Court is satisfied, on the basis of the undisputed facts, as contained in the records filed by both the parties, that the petitioner, a major woman, was impregnated by rape, due to which she is suffering from mental anguish and grave injury to her mental health due to the continuance of such unwanted pregnancy, this Court can, as well, issue a direction to the hospital, established for the purpose of the Act, by Government, for medical termination of pregnancy.

29. To substantiate the prayer made in the petition, learned counsel for the petitioner cited a decision rendered by a Division Bench of this Court in Komalavalli v. C. R. Nair, (1983) Mad LW (Cri) 190 : (1984 Cri LJ 446). The relevant portion of the said judgment is as follows :- "On going through the affidavit filed by the petitioner and after hearing her and her counsel, we are satisfied that the petitioner has been impregnated against her will and that unless the pregnancy is terminated the petitioner will suffer traumatic and psychological shock. Hence, we grant permission to the petitioner to terminate her pregnancy. This is subject to the condition that qualified Gynaecologists examine her and find that the pregnancy can be terminated without detriment to the petitioner's life and safety".

30. Mr. I. Subramaniam, learned Addl. Public Prosecutor, would, as well, cited a decision of another Division Bench of this Court in V. Krishnan v. G. Rajan alias Madipu Rajan, (1994) 1 Mad LW (Cri) 16, and on the strength of this decision, he would contend that the pregnancy can be terminated, with the consent of the pregnant woman, if the pregnancy was caused by rape and that if rape is alleged by the pregnant woman, the Court shall bound to presume that there would be a mental anguish or grave injury to mental health.

31. I have given my anxious consideration to the facts and present position of the case, since it involves, the question of taking away the life of a three months old child from the womb of the petitioner. I have also gone through the affidavit filed by the petitioner, copies of complaints, other records, the counter filed by the respondents, stating no objection for a direction to medical termination of the petitioner's pregnancy. On a thorugh perusal of these records, I am fully satisfied that a prima facie case has been made out by the petitioner, for issuing the direction as prayed for by the petitioner in her petition.

32. The narration of events as given by her in the petition and the counter filed by the respondents, would clearly show that she was raped by several persons on several dates against her will. Besides the allegation of rape, as contained in the records filed by both the parties, the mental anguish and agony and grave injury to her mental health, being suffered by the petitioner due to the continuance of the unwanted pregnancy in her womb is also clearly spelt out by the petitioner herself in her affidavit.

33. Having regard to the factual position as narrated by the petitioner, which was not disputed by the respondents, this Court is constrained to come to the conclusion that unless the pregnancy of the petitioner is terminated, not only the mental shock and anguish would be caused, but also an irreparable loss would be caused to her, which cannot be remedied.

34. In view of the clear observations made by Srinivasan, J. speaking for a Bench, in the above referred V. Krishnan's case (1994 (1) Mad LW (Cri) 16) and in the circumstances of this case, I am fully satisfied that the continuance of the pregnancy in the womb of the petitioner would definitely involve the risk as mentioned in S. 3(2)(b), Explanation-I to S. 3 and S. 3(3) of the Act.

35. In view of the above discussion, I deem it fit to direct the Chairman and Superintendent, Government Kasturba Gandhi Hospital for Women and Children, Madras-5, to conduct medical termination of pregnancy of the petitioner and preserve foetus to enable the investigating agency to ask for DNA test, which would be helpful in order to prove the case of rape alleged by the petitioner, against the persons during the course of trial.

36. Hence, the Chairman and Superintendent of Govt. Kasturba Gandhi Hospital for Women and Children, Madras-5, is hereby directed to conduct medical termination of pregnancy on the petitioner, with the aid of two qualified surgeons with sufficient care and precaution so as to avoid possible harm to the victim, the petitioner herein.

37. Learned counsel for the petitioner submits, that the petitioner is prepared to appear before the medical authorities today (24-5-1996) itself. Accordingly, the said Chairman is further directed to complete the medical termination of pregnancy on the petitioner, within the stipulated period of 20 weeks of pregnancy.

38. The investigating agency in the above case is directed to continue the investigation and make a report under S. 173, Cr.P.C. before the trial Court, as expeditiously as possible.

39. With these directions, Crl.O.P. No. 1862 of 1996 and Crl.M.P. No. 1442 of 1996 are closed.

40. Order accordingly.