Hindu Minority and Guardianship Act, 1956 – S. 6 (a) – Guardian – Minor Mother – Whether a minor mother has the capacity to give her child in adoption – Held, the minor mother is competent to act as guardian of her child. She has the capacity to give the child in adoption.
Juvenile Justice (Care and Protection of Children) Act, 2000 – S. 2 (d) (iv), 2 (d) (v) & 2 (2) – Scope of – Newly born Child of Rape Victim – Child in need of care and protection – Held, the newly born child is a ‘child in need of care and protection’ and falls within the expression ‘Surrendered or orphan child’. The necessary directions for her rehabilitation including adoption are thus required to be issued to the competent authority under the JJ Act read with the Guidelines 2015 in the welfare of the child.
2015 (10) ADJ 602 : 2016 (1) All. LJ 625 : 2016 (1) Crimes 1 : 2015 (33) LCD 3316
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Hon’ble Shabihul Hasnain, J. and Hon’ble D. K. Upadhyaya, J.
Writ Petition No.8210 (M/B) of 2015 A.F.R.
Order Date: 03.11.2015.
“A” through her Father “F” Versus State Of U.P. Thru Prin. Secy., Med. & Health Ser. & Ors.
(Delivered by Shabihul Hasnain, J.)
Considering the nature of issue engaging attention of this Court in this matter, the cause title of this case will now be read as under:-
“A” through her father “F”
State of U.P. through Secretary,
Medical and Health Services and other.
Office to make necessary amendments.
This matter arises out of a petition filed by a minor rape victim through her father, who has been named “A” by this Court. Originally, she had prayed that his Court may direct the opposite parties to terminate the pregnancy of the petitioner forthwith. She had also prayed that the opposite parties be directed to conduct DNA test of the foetus for the purpose of evidence and the trial.
It is necessary to give factual matrix of the case and subsequent developments in brief to understand the matter in proper perspective. A named F. I. R. was lodged by the father of the victim against the accused (hereinafter they will be known as “F” for father and “M” for the accused. These names are being given by the Court to keep the identity of the victim, her family and the accused under cover). It is mentioned in the F.I.R. that “A” was raped on 17.2.2015. The age of the victim was about 13 years. The First Information Report was registered under Sections 376, 506 IPC and
Section 3/4 of Prevention of Children from Sexual Offenses Act, 2012
on 8.7.2015 (case crime No., district and the location is not being given in the interest of justice). The F.I.R. was lodged with delay due to the reason that the poor child did not tell about the incident to her parents under threat extended by “M” that in case the matter is reported to the father they will both be killed. The matter came to light when “A” complained of pain in the abdomen and was taken to the medical hospital by her sister.
After registration of the F.I.R., medical examination of the petitioner was conducted by the Doctor on 8.7.2015 itself. She was found to be pregnant for 21 weeks and two days. Her age was found to be 12 years. The statement of the victim was recorded under Section 161 and 164 Cr.P.C. She corroborated the version of the first information report. She narrated that on 17.2.2015 at about 11.30 p.m. when she was returning from Tilak ceremony, “M” caught hold of her and dragged her to the back of a temple and forcibly committed rape upon her, as a result of which she became pregnant. She has narrated that force was used and she was stopped from shouting by “M”. After investigation the police submitted charge sheet against “M” before the Magistrate on 18.3.2015 and “M” was sent to jail.
According to the mark-sheet of class V issued by a local school, her date of birth is 15.10.2001 which makes her 13 years of age on the date of occurrence. According to the radiological examination her age was found to be about 12 years on the date of the occurrence.
In paragraph 13 of the petition, it has been averred that application was moved for termination of pregnancy medically by competent authority i.e. Chief Medical Officer of the District. It is further mentioned that the application was moved before the Juvenile Justice Board of the District with the prayer to accord necessary permission. It has been categorically stated that permission was refused but we do not have any document to substantiate this statement. However, postal receipts have been attached wherein applications have been found to be sent to the Juvenile Justice Board as well as Chief Medical Officer of the District. We are not sure whether such application ever reached the authorities concerned and were on record or not? However, since no relief could be obtained by the petitioner, she approached this Court through the present petition on 3.9.2015.
The matter came up before this Court on 7.9.2015. The matter was argued passionately and it was submitted that unfortunately a minor girl has been subjected to horrendous and despicable act against her will. It was pleaded that on social, moral, physical and psychological basis it will be most appropriate that permission may be granted to the petitioner to abort the child scientifically. It was forcefully argued that if the pregnancy is continued and child is to be born it would be a continued reminder of horrible incident in the life of a minor girl whose entire life is before her. If the pregnancy is allowed to be terminated it might be possible for the girl to forget the unfortunate incident by the passage of time otherwise instead of one, two lives will be spoiled.
Reliance was placed on a recent decision of Supreme Court in the matter of Chandra Kant Jayanti Lal Suther and another Vs. State of Gujrat passed on 28.7.2015 in Special Leave to Appeal (Crl.) No.(s) 6013/2015. Since the victim belongs to a small District adjoining Lucknow where medical facilities are not upto mark, this Court decided that the victim should be treated at Lucknow. So we directed King George’s Medical University, Lucknow to constitute a team of three senior most teachers/ doctors of the concerning department to examine the petitioner. They were required to evaluate the seriousness as to the threat to her life and also about the impact of continued pregnancy on the mental health of the victim. It was directed that in case the aforesaid doctors form an opinion that termination of pregnancy is safely possible, they will perform necessary surgery/operation. This was to be done with the consent of victim’s father for the same. In case of abortion, the authorities of the medical university were required to preserve the tissue from the foetus. It was further directed that Medical University shall take care of her stay as indoor patient and medical expenses shall be borne by the medical university to be reimbursed later by the State Government. The case was ordered to be listed on 15th September, 2015.
When the case was taken up on 15th September, 2015, a report from the medical university dated 10.9.2015 was placed before the Court which was sent in a sealed envelop. The relevant portion of the report sent by the medical university is being reproduced for appreciating the matter. The names of doctors etc. and other details are not being given for the purpose of maintaining secrecy about the identity of the girl.
“Committee members examined, evaluated and discussed the case thoroughly. Relevant investigations and Ultra Sonographic examinations were done and report is being sent on the basis of clinical and Sonographic examination and other investigations. She is a case of 7 and ½ months(30-32 weeks) pregnancy and is due for delivery in approximately 3rd week of November, 2015. At present apart from being a teenage pregnancy, which even though itself is a higher risk factor but there is no other factor which may endanger the physical health of the girl. There is no threat to her life at the moment.
The team of doctors is of the opinion that pregnancy should be continued as the termination/discontinuation of pregnancy at this point of time will lead to delivery of life preterm baby. At the moment there is no indication of any surgery for delivery.
Patient should be provided ante-natal care for well being of the mother as well as fetus. No decision about time and mode of delivery would be taken at the appropriate time.
The patient is being advised and provided following treatment;
Inj Tet boxoid 1 AMP/1ML stat
Tab Iron 1x daily
calcium supplementation 500 mg. 1X BD for supplementation
As discussed above, the girl is being admitted in Queen Marry’s Hospital pending the direction and decision of the court for further action.”
On 15.9.2015 the medical report was taken on record. After the report of the medical university nothing remained to be adjudicated or decided by this Court. However, counsel for the petitioner made a fervent plea that the case may not be dismissed as infructuous on that date and he may be given a chance to study the report as well. It was submitted that he would like to address the Court further after going through the communication by the medical university. The Court fixed 23.9.2015 for this purpose.
On 23.9.2015 counsel for the petitioner submitted that the victim and her family members are devastated by the medical report. He submitted that the victim/would be mother, being minor, was not capable of looking after herself, what to say of the child to be born. At the same time, father of the victim is not willing to keep the would be born child with them at any cost. If forced they might abandon not only the would be born child but also the victim to her fate. The counsel also appealed to the Court to look into this matter from the point of view of Article 21 of the Constitution of India. He pleaded that not only the minor rape victim but also “would be born child” had a right to live a life of dignity and liberty. Right of the victim to live with dignity can never be doubted, at the same time, the “child to be born” would also become natural citizen of this country from the moment of his or her birth.
Article 5 of the Constitution of India reads as under:-
“5. Citizenship at the commencement of the Constitution:- At the commencement of this Constitution every person who has his domicile in the territory of India and
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.”
The counsel argued that even this child needs the protection of the Court. It was argued that the guarantees given in Article 21 of the Constitution of India should be procured for the victim and her child if not by the State then by the courts. It was pleaded that such hapless, helpless and innocent victim of brutality, abject poverty and insensitive attitude of the society deserves attention and consideration by the highest Court of the State. The court cannot shut its eyes towards the tragedy which has befallen upon a citizen of this country and is likely to fall on a would be citizen of this country on her/his arrival in this world. After hearing the arguments of the petitioner counsel this Court passed following order on 23.9.2015:-
“Medical report sent by the doctors of Medical College is taken on record.
Considering the facts and circumstances of the case and its ramification for the Society at large, we feel that this matter needs further consideration by this Court. Accordingly, the Court appoints Sri Jaideep Narain Mathur, Senior Advocate, to be assisted by counsel of his choice, to assist us in this matter so that proper order can be passed for the future of unfortunate girl. Further, let notice be issued to Avadh Bar Association through its President to allow any other Advocate, who wants to assist sincerely, earnestly and honestly in this matter. Issue notice to Member Secretary, State Legal Services Authority, Lucknow, also to assist in the matter.
List this case on 7.10.2015 as fresh.
It is further directed that the victim-petitioner shall not be relieved from the Medical College and shall be taken care of by them until further orders of this Court.
Order Date :- 23.9.2015 “
On 7.10.2015 the matter was heard for quite some time and following orders were passed:-
Heard Sri J. N. Mathur, Senior Advocate assisted by Sri Ravi Tilhari and Sri Madhav as amicus curiae at great length, Sri Mohsin Iqbal, learned counsel for the petitioner and Mrs. Bulbul Godiyal, learned Additional Advocate General for the State.
Mr. Mathur has submitted that so far as compensation is concerned, the State Government has formulated a scheme known as Uttar Pradesh Victim Compensation Scheme. Section 2 (d) of the said scheme defines a victim as under:
“(d) “victim” means a person who himself has suffered a loss or injury as a result of crime and requires rehabilitation, and includes his dependent family members.”
The Court expressed its anxiety as to whether this definition will also cover the ‘would be born child’ whose mother is refusing to bring him/her up in future. The father of the petitioner has already stated that he does not want anything to do with the child who is likely to be born. In this case the child becomes the ‘second victim’ in itself.
After arguments were heard the Court has formulated few questions and has sought assistance on these issues:-
What is the status of a would be born child out of a relationship which is based on denial from both the parties ? There was no consent between the biological father and mother of the child for his/her birth. There was no marriage and even live-in relations was not existing. In such a situation, what rights will accrue to a child who will be a citizen of this country from the moment of its birth in the State of India. Does he not have a right to live a life of liberty with dignity as guaranteed under Article 21 of the Constitution of India.
Can he claim legitimacy in society ? How is the society expected to treat the child ? Is the society not bound to respect the child simply as a citizen of this country and not a product of shame ? Can he claim rights through inheritance in the property of his rapist father ? Most important aspect is the responsibility of the State viz.-a.-viz. the unfortunate victim and the most unfortunate child. Is it not the responsibility of the State to protect the life and liberty of a girl who has been put to this trauma and hardship because the State failed to protect her ?
The Court showed its anxiety as to how this child has to be brought-up in view of the fact that the mother is denying to keep him/her with herself ? Can the child be given in valid adoption through legal methods ? Can the government be required to pay for the education and rehabilitation/well being of the child till he attains the age of majority independent of his/her mother’s companionship ? Sri Mathur submitted that by a harmonious reading of