Rape survivors struggle to terminate her pregnancy caused due the assault
Amita Kujur Vs. State of Chhattisgarh & Ors.(WP (C) 976/2016, Hon’ble High Court of Chhattisgarh
The petitioner is a victim of trafficking and rape, has conceived as a result of rape and was pregnant. The offence of rape was registered at the Bagicha Police station, and was later transferred to Kansabel police station. She wanted to terminate her pregnancy. Despite having made several representations to the respondent authorities they took no action and not facilitated the termination of her pregnancy. The petitioner then approached the Hon’ble Court for directions as her pregnancy was advancing and the delay caused by the authorities may ultimately make it impossible to do the same.
The petitioner then made a representation to the Collector, Jashpur requesting the authorities to facilitate the termination of her unwanted pregnancy caused by rape. She also filed a similar representation to the Superintendent of Police, Jashpur. But even after 15 days the authorities took no action and have violated her fundamental rights guaranteed under the Constitution. The petitioner was over 12 weeks pregnant and the District Hospital, Jashpur does not conduct termination of pregnancy due to non-availability of trained doctors and the CMHO has informed that such matters are sent directly to the CIMS, Bilaspur. The doctors at CIMS have informed that the petitioner needs to bring the copy of FIR, MLC and reference letter from District hospital, Jashpur but she was unable to obtain these documents because of the callous attitude of the Thana In charge. Then the petitioner was left with no option but to approach the Hon’ble Court for termination of her pregnancy.
The petitioner prays to direct the respondents to take necessary steps to ensure the termination of the petitioner’s pregnancy at the earliest.
A direction was issued to the Dean, Chhattisgarh Institute of Medical Sciences(CIMS), Bilaspur to constitute immediately a team of 2 doctors to perform medical examination of the petitioner to form an opinion in terms of the provision contained in section 3 of the Medical Termination of Pregnancy Act, 1971 and take suitable steps.
The respondents – State submits in the last hearing that as per the direction of the Court the petitioner was examined on 13.04.2016 by a team of two doctors and an opinion has been formed that the petitioner was carrying pregnancy of more than 20 weeks.
The petitioner is not at all willing to carry pregnancy but the period of 20 weeks given in the Act has already elapsed. The course of the action which is required to be taken has to be guided by the principles of best interest theory laid down by the Supreme Court in the case of Suchita Srivastava.
The court held that taking into consideration that it is in the interest of the victim alone which has to be kept in view. The Court then directed the treating doctors to terminate the pregnancy.
The petitioner is a tribal girl from Jashpur district who was abducted and taken to Alwar district of Rajasthan, where she was subjected to rape. After she was recovered, an FIR was lodged in Police Station -Bagicha on 21.3.2016, which was transferred to jurisdictional Police Station- Kansabel. The petitioner having come to know that she had conceived as a result of rape, she represented to the Collector, Jashpur on 28.3.2016 to facilitate termination of her unwanted pregnancy. A representation was also made to the Superintendent of Police, Jashpur on 28.3.2016 itself. On 28.3.2016 itself, Additional Superintendent of Police & In-charge, Anti Human Trafficking Cell, assured immediate follow-up action and it is said that he telephonically instructed the police officers of Police Station- Kansabel to take necessary steps. It is the allegation of the petitioner that despite all steps taken by her informing the State and Police Authorities to facilitate termination of pregnancy and an approach made to Chief Medical and Health Officer, Jashpur, steps were not taken and she was advised to approach Chhattisgarh Institute of Medical Science (CIMS) Bilaspur. When she approached doctors at CIMS, she was informed that she needs to bring the copy of FIR, MLC report and a referral letter from District Hospital ,Jaspur. As the State Authority and Police Authority did not facilitate termination of pregnancy, though strongly desired by the petitioner, to prevent herself from severe mental agony of carrying unwanted pregnancy, the petitioner has now knocked the doors of justice by filing this petition.
The petitioner has prayed for issuing a direction to the respondents to take necessary steps to ensure the termination of her pregnancy and also issue guidelines to the respondents for dealing with rape cases leading to unwanted pregnancies.
The petitioner, a victim of rape, has clearly expressed her strong desire to avoid giving birth to child which is a result of rape on her as pregnancy has crossed 21 weeks of gestational age and unless there is judicial order as has been expressed in the opinion, it may not be possible for the doctors even to proceed with termination of pregnancy. The Court held that taking into consideration the totality of the circumstances what has been stated by the victim, gestational age, judicial precedents, that as per Explanation -I appended to Section 3 of the Act of 1971 mental agony of a rape victim has to be treated as a case of grave injury, particularly taking into consideration that it is the interests of the victim alone which has to be kept in view, this Court is inclined to direct the treating doctors to terminate the pregnancy. The Court further held that period of 21 weeks has elapsed, in order to ensure the safety of life of the petitioner, it would be proper to direct that the team of five doctors including those who have already conducted medical examination shall consider the feasibility of termination of pregnancy at this gestational age. In view of the order of the Supreme Court in the case of Chandrakant, it has to be left to the best opinion and judgment of medical experts in the matter. Once they find that at this stage, pregnancy can be terminated looking to the gestational age and overall condition of the petitioner, the same shall be carried out forthwith.
Respondent no.1 – State of Chhattisgarh, through Chief Secretary- It has been submitted that a report of termination of pregnancy carried out by a team of doctors in compliance of the order of this Court, has been placed on record and he informed that the pregnancy has been terminated in the matter.
Respondent no.2- Secretary, Department of Home Mantralaya- No Submission
Respondent no.3- Secretary, Department of Health, Mantralaya- No Submission
Respondent no.4- Collector
Respondent no.5- Superintendent of Police, Jashpur
Respondent no.6- Thana In Charge, P.S. Kansabel
Respondent no.7- Thana In Charge,
Respondent no.8- Chief Medical Officer, District Hospital, Jashpur
Respondent no.9- Chhattisgarh Institute of Medical Sciences through Medical Superintendent.
Chandrakant Jayantilal Suthar & Anr. Vs. State of Gujarat Special Leave Appeal (Criminal) No.6013/2015 Supreme Court
Bhavikaben Vs. State of Gujarat in special Criminal Application (Direction) No.1155 of 2016.
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