Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission has taken suo-moto cognizance of media reports that a woman committed suicide at Police Station Jathlana, Yamunanagar, Haryana alleging police inaction in her rape case. The Commission has issued notices to Chief Secretary and DGP, Haryana calling for a detailed report on the matter within six weeks.

The Commission has also directed to the DGP, Haryana to communicate the action taken against the delinquent police personnel. The Commission directed the Chief Secretary of the State of Haryana to look into vulnerability of the family of the deceased and the protection and financial help if not already carried out, be provided by the State to the victim family. The direction also issued about whether training has been provided to the police personnel at different levels to handle such sensitive cases with a more human touch.

Issuing the notices, the Commission has observed that the contents of the news reports, if true, raised serious issue of violation of human rights of the victim and indicate gross negligence on part of the police personnel. The apparent insensitivity and lackasdical attitude on part of the police personnel is a grave concern.

According to the news reports carried today on 04-09-2019, the victim had got tired by visiting the police station again and again and in fact, justice was denied to her by the police authorities of Jathlana Police Station in Yamunanagar and she finally committed suicide. Her family members have made serious allegations against the Sub-Inspector and Police Station In-charge and demanded their suspension with the immediate effect.

The father of the deceased woman lodged a complaint that his daughter was married in the year 2016 and after marriage, she did not give birth to a child and there were regular altercations in the family. Some months ago, when the victim came to her maternal house in her village, where alleged fellow villagers on the pretext of getting her divorce and also job called her at a place and gave the victim lift in a car and took her to Jagadhar Bus stand where the victim was given juice having sedatives. The news report also reveals that the accused kept the victim in Delhi, Lucknow and Dehradun for 3-4 months and during the time, the victim was raped and obscene videos were also made. The victim somehow managed to get free from their captivity and after came back to the house revealed the ordeal to her family members.


National Human Rights Commission

[Press Release dt. 04-09-2019]

Case BriefsHigh Courts

“Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven”

Madhya Pradesh High Court: The instant petition was contemplated by S.K. Awasthi, J., in which the petitioner who was the father of the rape victim sought termination of pregnancy for his 14 years old daughter.

The unfortunate facts were that a girl about 14 years old was raped and because of the alleged crime, she got pregnant. The girl was 22 weeks pregnant and as per the reports she was fit for termination of pregnancy.

The Hospital in its report submitted that pre-anesthetic & medical checkup and opinion of consultant Anesthesia and Medicine, Psychiatry was required in case if the medical method of termination failed and surgical intervention was required, however, the case was suitable for termination of pregnancy under the Medical Termination of Pregnancy Act, 1971.

The counsel for the petitioner Amit Dubey submitted that the report by the competent hospital reflected that abortion could have been carried out with the permission of the Court. The relevant statutory provisions i.e. Sections 3 and 5(1) of Act, 1971, stated when pregnancies were to be terminated and one of the clauses was, ‘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 the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health’; as the girl was very young the counsel argued that the pregnancy might ruin her mental health and there was a risk to the life of the girl. It was further contended that the Act of 1971, also provided for an explanation clause i.e., ‘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.’

The counsel relied on Murugan Nayakkar v. Union of India, 2017 SCC OnLine SC 1902, where the Supreme Court granted termination of pregnancy to a 13-year-old girl who was a victim of rape and sexual abuse, the Supreme Court had held that, “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.”

The Court observed that while interpreting the provisions of Section 5 of the Act of 1971, it was to be borne in mind that principle that the section must be construed as a whole whether or not one part was a saving clause and similarly elementary rule of construction of section was made of all the parts together and that it was not permissible to omit any part of it; the whole section must be read together. Hence, the termination was granted on the said grounds.[Ritika Prajapat v. State of M.P, 2019 SCC OnLine MP 1687, decided on 18-07-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. allowed a writ petition for quashing the criminal proceedings against rape accused who later on married the victim.

In the instant case, the petitioner (‘accused’ before the trial court) was alleged to have committed offences punishable under Section 366A, 376 of the Penal Code, 1860 and Section 3(a) read with Section 4 of the POCSO Act, 2012.

The counsels for the petitioner, C.S. Manu and S.K. Premraj, contended before the High Court that the petitioner had settled the disputes amicably with the respondent (‘victim’ before the trial court) by solemnizing marriage with her as per the provisions of the Special Marriage Act, 1954 and they had a daughter aged four months out of the wedlock. The petitioner also produced a Marriage Certificate issued by the statutory Marriage Officer.

Anoop Joseph, counsel appearing for the respondent also pointed out that, since the respondent had already married the petitioner, it would be in her interest that the impugned criminal proceedings be quashed; otherwise her marital life would be put into jeopardy, and there would be no one to take care of her as well as her young child hardly aged 4 months.

The Court observed that, though the grave and serious offences as the one under Section 376 of the Penal Code could not be the subject matter for quashing on the ground of settlement between the accused and the victim; but relying on its judgment in Freddy @ Antony Francis v. State of Kerala, 2018 (1) KLD 558, it held that “the exception to the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the de-facto complainant/ victim, to ensure her better future life, it is only just and proper that this Court in exercise of the extra ordinary inherent powers under Section 482 of the CrPC could quash the impugned criminal proceedings on the ground of settlement between the parties in cases where the accused has married the defacto complainant and the de-facto complainant is insisting for quashing of the impugned criminal proceedings, etc.”

In the light of the above, more particularly in the light of the submission made by the respondent, the Court allowed the plea for quashing of impugned criminal proceedings.[Ashiq N.A. v. State of Kerala, 2019 SCC OnLine Ker 1731, decided on 23-05-2019]

Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., in his own words, departed from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 and allowed termination of 20-weeks pregnancy of a 12-year old rape victim.

The present matter was concerned with the question of allowing the termination of pregnancy of the victim child. Dr Mamata Pradhan, Chairperson of the Medical Board constituted by the Court clarified that termination of pregnancy of 20 weeks bears the serious risk, but it could be done and for that reason, the guardian of the victim girl had to give a qualified consent on fully understanding the consequences and risks involved in such termination.

After elaborate consultations with Dr Pradhan, victim’s mother (her guardian) informed the Court that there is no alternative but to get the pregnancy terminated. A. Bhowmik, Advocate for the petitioners submitted that the court may pass appropriate orders having regard to Supreme Court decision in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339 wherein reproductive choice was recognised to be an inseparable part of personal liberty protected under Article 21.

Having regard to such a situation, the High Court directed Dr Pradhan and her team to commence the procedure of termination of pregnancy of the victim. The Court observed, “Having considered the injury that might torment the mental health of this young girl, this Court has taken the undertaking made by the mother seriously. In the circumstance, the foetus be terminated forthwith, making a departure from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 for responding to the necessity created by human emergency.” The Court also recorded appreciation for B. Choudhary, Public Prosecutor and D. Sarma, Additional Government Advocate for their contribution. The matter was disposed of in the terms above. [Jhuma Roy v. State of Tripura, 2019 SCC OnLine Tri 80, Order dated 08-03-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vibhu Bakru, J. allowed the termination of pregnancy of a minor whose fetus had already undergone a gestation period of 22 weeks.

In the present order, it was noted that the petitioner had approached the High Court for direction to respondents in regard of termination of her pregnancy even after being aware of the high risks involved with the same. The Court on interaction with the 16-year old rape victim noted that she insisted on the termination of pregnancy and seemed to be in considerable distress.

Further, the Court noted the observation of Dr Sanjay Agrawal, Director Professor of Psychiatry, who was of the view that the unwanted pregnancy was causing a considerable amount of distress to Ms X. Medical Board had submitted the report which indicated that abortions of about 22 weeks carry a higher risk of mortality and morbidity. The stated risk was explained to the petitioner as well as her father, both of whom were adamant that the pregnancy should be terminated.

Learned Counsel for the petitioner while citing various decisions of Supreme Court including Chanchala Kumari v. Union of India, WP(C) No. 871 of 2017 and Venkatalakshmi v. State of Karnataka, Civil Appeal No. 1538 of 2017, noted that the Court on examining the medical reports had permitted the termination even after 24 weeks of pregnancy.

Thus, the High Court keeping in consideration the above-stated allowed the petition and directed for the termination of pregnancy of the minor child. [X v. State (NCT of Delhi),2018 SCC OnLine Del 12891, Order dated 01-12-2018]

Case BriefsSupreme Court

Every attempt should be made by all the courts not to disclose the identity of the rape victim in terms of Section 228-A IPC

Supreme Court: The Bench comprising of Abhay Manohar Sapre and Uday Umesh Lalit JJ. while addressing the petition of a convict under Sections 376 and Section 342 IPC and affirming the sentence granted to him by the High Court, took notice of a very essential point of concern, that the name of the ‘rape’ victim has been stated in both the judgments of the Trial Court as well as that of the High Court.

The present order dealt with, the appeal of a rape convict under Sections 376 and 342 IPC with a sentence of 7 and 1 year respectively. The Supreme Court found no merits in intervening with the High Court’s conviction and sentence, therefore, the appeal was dismissed.

The point to be addressed was that of victim’s name being mentioned in the judgments of the Trial Court and High Court, which was inconsistent with Section 228-A of IPC. The Supreme Court while stating that the courts should make every attempt in not disclosing the identity of the victim, relied on the case State of Punjab v. Ramdev Singh (2004) 1 SCC 421.

Therefore, while dismissing the present appeal, the bench focussed on the point regarding the mentioning of rape victim’s name and further directed the Registry of the High Court to place the record of the appeal in the High Court for making appropriate changes in the record and passing of appropriate directions so that the trial courts comply and understand the essence of Section 228-A IPC. [Lalit Yadav v. State of Chhattisgarh, 2018 SCC OnLine SC 680, order dated 05-07-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of Ranjit More and Prakash D. Naik, JJ. heard a petition requesting termination of pregnancy of the petitioner’s daughter who was a victim of rape and was running into 27 weeks of pregnancy on the grounds that continuation of pregnancy would cause grave injury to the victim.

Relying on the medical report submitted by the Assistant Public Prosecutor which stated that “the petitioner’s daughter should be directed to continue pregnancy with medical and psychological support” and also on Section 3 of the Medical Termination of Pregnancy Act, 1971, the Court refused to interfere and dismissed the petition.

Section 3 of the MTP Act, 1971 states that a pregnancy may be terminated where the length of a pregnancy exceeds 12 weeks (before which a medical practitioner is permitted to terminate a pregnancy) but not 20 weeks, and at least two registered medical practitioners must be of the opinion, formed in good faith, that the continuation of the pregnancy would gravely injure the woman’s physical or emotional health. The Explanation provides that if the pregnancy has been caused by rape, the anguish caused by such a pregnancy would constitute grave injury to mental health of the woman. [Danbahadur Rajkaram Yadav v. State of Maharashtra, 2017 SCC OnLine Bom 8900, order dated 13.10.2017]

 

 

Case BriefsSupreme Court

Supreme Court: In the case where a 35-year-old woman victim of sexual assault had sought for termination of pregnancy on the ground that she is HIV positive, the Court, after considering the report of the AIIMs medical Board which stated that the procedure involved in termination of the pregnancy is risky to the life of the petitioner and the fetus in the womb, held that though there cannot be termination of pregnancy but the State of Bihar will provide all the medical facilities to the petitioner as per the treatment graph given by the doctors who are going to examine the petitioner at AIIMS through the Indira Gandhi Institute of Medical Sciences at Patna.

The Medical Board had also suggested that she is advised to continue HAART therapy and routine antenatal care, to reduce the risk of HIV transmission to the fetus/baby to the minimum. The Court hence, directed the Indira Gandhi Institute of Medical Sciences to work in coordination with AIIMS, New Delhi so that the health condition of the petitioner is not further jeopardized.

The Bench of Dipak Misra and A.M. Khanwilkar, JJ also directed the State of Bihar to pay Rs. 3,00,000 to the petitioner as compensation under the scheme of Section 357-A CrPC within 4 weeks as she has been a victim of rape. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 09.05.2017]