Allowed

Jaydev Bairagi and Another v. the Andaman and Nicobar Administration and Others

Calcutta HC8 Sept 2021WPA/214/2021

Case brief

AI extract

What is this about?

In a writ petition filed by a minor rape victim, the High Court directed a hospital to examine the petitioner and permit termination of pregnancy within 20 weeks. Acknowledging statutory safeguards for rape cases, the Court ordered preservation of fetal tissue for DNA evidence alongside the medical procedure.

What did the court decide?

The petitioner herein was ordered to permit the termination of her pregnancy within 20 weeks of gestation, with directions to preserve the fetus for DNA testing and conduct the procedure in the presen

Jaydev Bairagi and Another Vs the Andaman… — Pension and Retirement Benefits | Calcutta HC (2021)

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IN THE HIGH COURT AT CALCUTTA [CIRCUIT BENCH AT PORT BLAIR ]

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WPA No. 214 of 2021

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Jaydev Bairagi and another … Petitioners

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Vs.

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The Andaman and Nicobar Administration and others … Respondents Mr. S.K. Golder, Advocate … for the petitioners Mr. Krishna Rao, Advocate … for the respondents

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September 8, 2021 [GNC]

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Item No.03

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The minor victim girl, the petitioner No.2 along with her father, the petitioner No.1 herein have jointly filed the instant writ petition seeking an order to abort foetus/embryo which the petitioner No.2 is carrying out of an unfortunate incident of rape. She is admittedly the girl of below 18 years of age and on the basis of her statement an FIR is registered with the concerned police station under section 376 of the Indian Penal Code together with sections 5 and 6 of the POCSO Act.

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The petition reveals that the minor girl belongs to economically challenged family and have been subjected to the sexual assault by two accused persons. Mr.Rao, learned advocate appearing for the respondents, fairly submits that on the basis of such information and disclosure of the event by the minor girl, the FIR has been registered and in fact, the aforesaid perpetrators of the offence have been taken

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into custody. Neither the minor victim girl nor the parent/guardian are in a position to carry the child in the womb of the petitioner No.2. It has also been pleaded in the application that not only such fetus would cause mental instability but have a larger impact upon the physical condition of the minor victim girl.

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It is no doubt true that carrying a fetus of a person whom the girl does not want would have a larger impact on her development as an orderly citizen of the country but have ramification on the social fabric of the society as well.

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The Medical Termination of Pregnancy Act, 1971 is enacted to provide for termination of certain pregnancies by the registered medical practitioner with an avowed object to create safeguard against the illegal termination of the foetus causing imbalance in two genders of the human race. Section 3 of the said Act postulates various safeguards against termination of pregnancy by the medical practitioner and one of the condition enshrined therein require the formation of the opinion of the medical practitioner where the length of the pregnancy does not exceeds 12 weeks. However, in case where it exceeds the said initial minimum cap with an outer cap of 20 weeks, the opinion of two registered medical practitioners are required before performing the medical procedure for

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termination of the foetus. The aforesaid section is subsequently amended by a Medical Termination of Pregnancy (Amendment) Act, 2021 and the significant features which can be noticed from the said amendment is the substitution of minimum cap of 12 weeks with 20 weeks as the outer limit of 20 weeks is further extended upto 24 weeks. However, the explanation 1 to section 3 sub-section (2) which was initially kept in the unamended provision is kept intact in an amended provision as well as explanation 2 thereof which reads thus:-

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Explanation 2. For the purpose of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”

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In view of the adumbration of the facts as indicated above the petitioner No.2 is well within the cap of 20 weeks enshrined in sub-section (2) of section 3 of the said Act and, therefore, the opinion of the single medical practitioner is required before the termination of foetus.

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Both the counsels uniformly submitted that the petitioner No.2 has already been admitted in the G.B.Pant Hospital, a Government Hospital at Port Blair but the doctors have not proceeded because of embargo having been created in the said Act. As indicated above, the petitioner No.2 bore the foetus in her womb because of

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such heinous offence having been committed on her which has an impact on her mental health and therefore, in view of the explanation 2 to sub-section (2) of section 3 of the said Act there is no embargo in permitting the termination of foetus.

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The writ petition is allowed with the following directions:-

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(1) The registered medical practitioner attached to the said hospital and specialized in the gynecological branch shall examine the petitioner No.2 and record his/her opinion on the period of pregnancy. In the event, it is found that it was within 20 weeks as indicated in the aforesaid provision his/her opinion shall be taken as final and the further procedure required for termination shall be carried out strictly under the medical supervision of the said doctor or the team of the doctors as may be suggested by the Medical Superintendent, GB Pant Hospital, Port Blair.

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(2) The foetus so extracted from the womb of the petitioner No.2 the section thereof shall be preserved in the preservative chemical or substance used for the purpose of DNA test in order to establish the offence to have been committed by the aforesaid accused.

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(3) The entire procedure of termination of the foetus shall be conducted in presence of the Investigating Officer of the case registered on the basis of the complaint lodged by the parents of the girl or the girl herself.

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(4) The samples shall be kept by the said hospital till further order that may be passed by the competent Court.

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The writ petition is thus disposed of.

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(Harish Tandon, J. )

Jaydev Bairagi and Another v. the Andaman and Nicobar Administration and Others

Case brief

What is this about?

What did the court decide?

Jaydev Bairagi and Another v. the Andaman and Nicobar Administration and Others

Case brief

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What did the court decide?

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