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V. Durai v/s The Dean, Thanjavur Medical College and Hospital, Thanjavur & Others


Company & Directors' Information:- C N S HOSPITAL PRIVATE LIMITED [Active] CIN = U85191BR2013PTC021246

Company & Directors' Information:- I A A HOSPITAL PRIVATE LIMITED [Active] CIN = U85110PB2004PTC026705

Company & Directors' Information:- P V S HOSPITAL PVT LTD [Active] CIN = U85110KL1976PTC002850

Company & Directors' Information:- G M HOSPITAL PVT LTD [Active] CIN = U85110AS1992PTC003759

Company & Directors' Information:- K G M HOSPITAL PRIVATE LIMITED [Active] CIN = U85110TZ1998PTC008437

Company & Directors' Information:- S B S HOSPITAL PRIVATE LIMITED [Active] CIN = U85110TZ1998PTC008570

Company & Directors' Information:- K K S HOSPITAL PRIVATE LIMITED [Active] CIN = U85110TZ1986PTC001841

Company & Directors' Information:- B N V HOSPITAL PRIVATE LIMITED [Active] CIN = U85110KL1996PTC010576

Company & Directors' Information:- C N K HOSPITAL PRIVATE LIMITED [Active] CIN = U85110KL2002PTC015280

Company & Directors' Information:- K J HOSPITAL PRIVATE LIMITED [Active] CIN = U85110TN1973PTC006418

Company & Directors' Information:- P D S HOSPITAL PRIVATE LIMITED [Active] CIN = U85191UP2014PTC067161

Company & Directors' Information:- K. B. HOSPITAL PRIVATE LIMITED [Active] CIN = U85191UP2009PTC037607

Company & Directors' Information:- G L HOSPITAL PRIVATE LIMITED [Active] CIN = U85300PY2020PTC008645

Company & Directors' Information:- U K HOSPITAL PRIVATE LIMITED [Strike Off] CIN = U85110TN1990PTC018932

Company & Directors' Information:- N M S HOSPITAL PRIVATE LIMITED [Active] CIN = U85110TZ2009PTC015580

Company & Directors' Information:- V M H HOSPITAL PVT LTD [Active] CIN = U85110KL1990PTC005616

Company & Directors' Information:- D S HOSPITAL PRIVATE LIMITED [Active] CIN = U85110TZ1991PTC003478

Company & Directors' Information:- G M B HOSPITAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110PN2003PTC017840

Company & Directors' Information:- S R HOSPITAL PRIVATE LIMITED [Active] CIN = U85110DL2000PTC105261

Company & Directors' Information:- P V G HOSPITAL PRIVATE LIMITED [Active] CIN = U65992TZ1995PTC006372

Company & Directors' Information:- A V HOSPITAL PVT LTD [Strike Off] CIN = U85110PB1990PTC010652

Company & Directors' Information:- J AND M HOSPITAL PRIVATE LIMITED [Strike Off] CIN = U85100MH2005PTC155617

Company & Directors' Information:- P S S HOSPITAL PRIVATE LIMITED [Active] CIN = U85100BR2021PTC051321

Company & Directors' Information:- S N HOSPITAL PVT LTD [Strike Off] CIN = U85110PB1988PTC008922

    W.P.(MD)No. 12132 of 2020

    Decided On, 21 September 2020

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. PONGIAPPAN

    For the Petitioner: A. Senthilkumar, Advocate. For the Respondents: A.P.G. Ohm Chairma Prabhu, Government Advocate (Crl. side).



Judgment Text

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, directing the first respondent to terminate the unwanted pregnancy of the petitioner's daughter minor D.Swathi, aged 16 years, born on 23.07.2004, as per the recommendation of the second respondent in No.261/Ma.Ku.Pa.A/2020, dated 14.09.2020, caused due to the crime committed against her in Crime No.13 of 2020, dated 18.08.2020, for the offence under Sections 5(i), 5(j)(ii) and 6 of the Protection of Children from Sexual Offences Act, 2012, by considering the petitioner's representation dated 14.09.2020, within a time frame as fixed by this Court.)1. The petitioner's daughter (Minor) D.Swathi, is a victim in Crime No.13 of 2020, on the file of the third respondent Police, registered for the offence under Sections 5(i), 5(j)(ii) and 6 of the Protection of Children from Sexual Offences Act, 2012 [in short, ''the POCSO Act'']. According to the petitioner, he is having two children and his wife deserted him before seven years ago and his son is studying VIII Standard in a Government School and his daughter viz., D.Swathi, aged about 16 years, is studying XII Standard in the Government Higher Secondary School, Pattukottai. They are living in a hut and the petitioner used to go to work in the morning and return only in evening. Taking advantage of his absence in his house, one Pavithran, son of Kathiresan, resident of the petitioner's Village, committed crime against his minor daughter viz., D.Swathi and due to which, the victim girl got pregnant and she is now 5 months pregnant. Since the victim is a Minor girl, aged about 16 years, the petitioner has moved the authorities to terminate the pregnancy of his minor daughter, as it would affect her both physically and mentally. Alleging inaction on the part of the authorities, he has filed the instant Writ Petition seeking a Writ of Mandamus to direct the first respondent / Dean, Thanjavur Medical College and Hospital, Thanjavur, to terminate the pregnancy of his minor daughter.2. Learned Counsel appearing for the petitioner would submit that the petitioner took the victim girl in the Government Hospital, Thanjavur and the victim was subjected for medical examination by the Doctor. The Doctor, after examination, opined that the victim was 5 months pregnant. Based on the complaint given by the petitioner's daughter, a case in Crime No.13 of 2020, for the offence under Sections 5(i), 5(j)(ii) and 6 of the POCSO Act, 2012, has been registered against the accused. Thereafter, the petitioner took the victim girl to the Thanjavur Medical College and Hospital and requested them to terminate the unwanted pregnancy. They have admitted her in the Hospital, but refused to terminate the pregnancy, because of the registration of a criminal case. Further, one Indirani, Assistant Professor, Department of Obstetrics and Gynaecology, Govt. Raja Mirasudar Hospital, Thanjavur, examined the said victim girl and in view of her physical and mental health condition, suggested for terminating the pregnancy. Based on this report, the District Child Protection Officer has addressed a letter to the District Legal Services Authority, Thanjavur, requesting appropriate action, but there was no further progress. According to the learned Counsel appearing for the petitioner, delay in taking any decision for terminating the pregnancy would affect the victim badly and therefore, prays for allowing this petition.3. Heard the learned Counsel appearing for the petitioner and the learned Government Advocate (Crl. side) appearing for the respondents.4. At this juncture, it is relevant to refer Section 3 of the Medical Termination of Pregnancy Act, 1971 (in short 'the Act'), which deals with termination of pregnancy and the same is extracted as under:''3. When Pregnancies may be terminated by registered medical practitioners:-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that 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-section (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 physical or mental health; or(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonable 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 Cl.(a), no pregnancy shall be terminated except with the consent of the pregnant woman.''5. Perusal of the above provision reveals that the termination of pregnancy is not permissible, if the length of pregnancy exceeds 20 weeks. However, Section 5 of the Act lays down exceptions to Section 3 and the same is extracted as under:''5. Sections 3 and 4 when not to apply-(1) The provisions of Section 4, and so much of the provisions of sub&-section (2) of Section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. ...''6. The victim girl is of 16 years and as per Section 3(4)(a) of the Act, the pregnancy can be terminated on a written consent from her guardian. As per the report of Dr.D.Indirani, Assistant Professor, Department of Obstetrics and Gynaecology, Govt. Raja Mirasudar Hospital, Thanjavur – 613 001, as on 11.09.2020, the petitioner's daughter was 5 months pregnant and therefore, as on date, her length of pregnancy has exceeded 20 weeks. The Doctor, considering her physical and mental state, has also suggested for terminating the pregnancy of the victim, which reads as follows:-“TAMIL”7. When the matter was taken up for hearing on 18.09.2020, considering the facts and circumstances of the case, this Court directed the Dean, Thanjavur Medical College and Hospital, Thanjavur, to constitute a Medical Committee of not less than three Doctors, including a Gynaecologist, etc., to ascertain as to whether the termination of pregnancy of the petitioner's daughter is medically possible, in particular, without any hindrance to the health of the victim girl and to determine whether continuance of pregnancy would involve an injury to the health of the victim girl, as provided under Section 5 of the Act.8. Pursuant to the above said direction of this Court, a Medical Committee was constituted, consisting of Dr.J.Prabha, Family Welfare and Project Officer, Associate Professor of Obstetrics and Gynaecology, Dr.C.Kumaran, Professor of Anesthesiology and Chief Anaesthesiologist, Dr.V.S.Subburaman, Associate Professor of Paediatric Medicine, Dr.I.Meenakshi, Associate Professor of Psychiatry, Dr.G.Anitha, Assistant Professor of Radiology, and Dr.B.Sujeetha, Assistant Professor and Clinical Psychologist.9. The above said Committee examined the victim girl on 19.09.2020 and opined that the gestational age of her pregnancy is 24 weeks and finally opined as follows:-''Since the individual's father has requested for termination of pregnancy and considering the social and psycho social aspects of the victim girl, the termination of pregnancy can be considered.''10. The Hon'ble Supreme Court, in more than one occasion, viz., in (2018) 11 SCC 572 - Z vs. State of Bihar and Others; (2016) 14 SCC 382 - X vs. Union of India and Others; (2017) 3 SCC 458 - X and Others vs. Union of India and Others, even though the length of pregnancy exceeds the statutory limit, has allowed the termination of pregnancy, if there are compelling reasons. In the present case on hand, the petitioner's daughter is admittedly a min

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or, aged about 16 years. She is a victim in Crime No.13 of 2020 and the offence was committed upon her by the accused. It is also represented that if the said pregnancy is continued, the victim girl's education would be very much affected.11. Considering the facts and circumstances of the case and also keeping in mind the well being of the victim, this Court, without giving any room for further delay, directs the first respondent / Dean, Thanjavur Medical College and Hospital, Thanjavur District, to commence the termination of pregnancy process in the presence of the Doctors, who were all participated when at the time the victim girl was examined, viz., on 19.09.2020, forthwith. During the time of procedure, the Doctors shall ensure the safety of the victim. The samples of the foetus shall be preserved for carrying out medical tests, in the criminal case pending in Crime No.13 of 2020.12. With the above directions, this Writ Petition stands allowed. No costs.
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