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Medical Termination of Pregnancy Act, 1971: , 3 and 4 - Termination of pregnancy - Statutory right ofrape victim - Appellant, a pregnant 35 year old destitute woman,suffering from HIV+ve, alleged rape and therefore desired termination of her 18 weeks old pregnancy - However, hospital authorities did not terminate the pregnancy - Writ petition by appellant seeking direction for termination of pregnancy - High Court on basis of the report of the Medical Board, constituted to examine the appellant, did not allow termination of pregnancy -Plea of appellant that the authorities did not act with promptitude in terminating the pregnancy and further that the approach of High Court was wholly fallacious - On appeal, held: Appellant was thirty-five year old, a major - Though, she was suffering from mild mental retardation but her condition was stable and she was able to alleged that she had been raped - Appellant had decided to exercise her statutory right, being a rape victim, not to bear the child and more so when there was possibility of the child likely to suffer from HiV+ve - Further. the Medical Board's report only stated that termination of pregnancy may need major surgical procedure but there was no opinion that the termination could not be carried out that it was risky to appellant's life - However, now in view of medical report by All MS that there is risk to appellant's life if the pregnancy is terminated at this stage, the pregnancy cannot be terminated - There was negligence on the part of authorities in carrying out their statutory duty, as a result of which the appellant suffered grave mental injury - Apart from Rs.3 lakhs compensation under the Victims Compensation Scheme as framed u!s.357A of CrPC, appellant to get a sum of Rs. 10 lakhs as compensation from the State - The child to be born, be given proper treatment and nutrition by the State - If appellant has any future grievance, she is granted liberty to approach High Court u/Art.226 after the birth of the child - High Court's order set aside except for the direction pertaining to investigation carried out on the basis of FIR lodged by appellant u/s.376, IPC - The Medical Termination of Pregnancy Regulations, 2003 - rr.3, 4 and 5 - Code of Criminal Procedure, 1973 - s.357A - Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993 -Arts. 11, 12 -Penal Code, 1860- s. 376 - Mental Healthcare Act, 2017- Women Welfare/Development - Constitution of India - Art.226.Purpose of enactment - Held: Legislature intended to liberalize the existing provisions relating to termination of pregnancy keeping in view the danger to life or risk to physical or mental health of woman; on humanitarian as well as eugenic grounds.s.2- "Mentally ill person" - Distinguished from - Mentally Retarded person - Appellant, a mentally retarded rape victim, was denied termination of pregnancy by hospital - Plea of appellant that she was suffering from mental retardation and not from mental illness and thus, in view of the consent given by her for termination of pregnancy it was obligatory on the part of the hospital to terminate the pregnancy - Held: Appellant suffered from mild mental retardation and not from any kind of mental illness - Though she was administered psychiatry treatment but she was in a position to express her consent - Under the statutory framework, she was entitled to give her consent for termination of pregnancy - Evidently,she did not desire to bear a child - In such circumstances, there was no reason on the par.t of hospital authorities not to have proceeded for termination of pregnancy.ss.2, 3(4)- "Guardian" - Consent of - When not needed-Appellant, a mentally retarded rape victim, sought termination of pregnancy - Hospital authorities instead of proceeding with the termination of pregnancy called the father of the appellant to sign the consent form - Plea of appellant that she being a destitute woman there was no justification to obtain the consent of her father or husband for termination of pregnancy - Held: The concept of consent by a guardian in the case of major should not be overemphasized - There was no reason whatsoever to implead the husband and father of the appellant - High Court should have been more alive to the provisions of the Act and the necessity of consent only of the appellant in the facts of the case.s.3(2), (4) Explanation 1 - Grave injury to mental health -Statutory presumption of - Held: Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the same has to be presumed to constitute a grave if injury to the mental health of the pregnant woman - Once such a statutory presumption is provided, the same comes within the compartment of grave injury to mental health.Women We(fare/Development - Termination of Pregnancy:Duty of High Court - Held: High Courts required to be more sensitive while dealing with matters relating to termination of pregnancy - Constitution of India - Art.226.Duty of hospitals - Held: Element of time is extremely significant in a case of pregnancy as every day matters - Therefore, hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman is not hindered - The fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision.Remedy - Public law remedy - Grant of compensation under.for negligence and suffering of a person for which State authorities are responsible - Difference from compensation u/s.357A,CrPC - Appellant, a mentally retarded rape victim, was denied termination of pregnancy by government hospital - Held: Appellant Suffered grave injury to her mental health - The said injury is continuance - Despite the prompt attempt made by Supreme Court To get her examined so that she need not undergo the anguish of bearing a child because she is a victim of rape, it could not be sodone as the medical report states that termination of pregnancy at this stage was risky to the life of the victim - This situation could have been avoided had the decision been taken at the appropriate time by the government hospital at Patna - State authorities are responsible for the negligence and the suffering of appellant -Keeping in view the mental injury that the appellant had to suffer, she is entitled to be compensated under public law remedy.Doctrines/Principles - Principle of State Interest - Non- applicability of - Held: The State contested the matter before the High Court on the foundation of State interest - The principle of State interest is not at all applicable to the present case.Maxims - actus curiae neminem gravabit - Inapplicability of-Appellant, a mentally retarded rape victim was denied termination Of pregnancy by government hospital - State authorities held responsible for negligence and, for the suffering of appellant -Direction to State to pay Rs. 10 lakhs as compensation - Plea of State that it had shown an affirmative attitude and if any delay has been caused, it is because of the expression of the view by the High Court for which the State cannot be found fault with and the said Cmaxim protected the action of the State -Held: Despite its bro Connotation, the said maxim is not attracted to the obtaining factual matrix inasmuch the compensation was granted because of the delay caused by the authorities of govt. hospital. |
