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2017 Supreme(SC) 454
SUPREME COURT OF INDIA
(RECORD OF PROCEEDINGS)
DIPAK MISRA, A.M. KHANWILKAR, JJ.
INDU DEVI – Petitioner(s)
VERSUS
THE STATE OF BIHAR & ORS. – Respondent(s)
Petition(s) for Special Leave to Appeal (C) No(s). 14327 of 2017 (Arising out of impugned final judgment and order datedin CWJC No. 5286/2017 passed by the High Court of Patna) 26/04/2017
Decided On : 09-05-2017
The Court emphasized the State's responsibility to provide medical facilities and compensation to victims of rape under the Victim Compensation Scheme as framed under Section 357-A of the Code of Criminal Procedure.
Headnote:
Pregnancy Termination - High Court Jurisdiction - Article 226 of the Constitution of India - Section 357-A of the Code of Criminal Procedure
Fact of the Case:
The petitioner, a woman who was sexually assaulted and found to be HIV positive, sought termination of her pregnancy. After being examined by multiple medical boards, it was determined that termination of the pregnancy would be risky to her life and the fetus. The petitioner also sought compensation under the Victim Compensation Scheme as framed under Section 357-A of the Code of Criminal Procedure by the State of Bihar.
Finding of the Court:
The Court directed the petitioner to continue HAART therapy and routine antenatal care to reduce the risk of HIV transmission to the fetus. The State of Bihar was directed to provide all necessary medical facilities to the petitioner as per the treatment graph given by the doctors. The petitioner was granted compensation of Rs. 3,00,000 under the Victim Compensation Scheme for being a victim of rape.
Issues: Pregnancy termination, medical treatment, compensation under the Victim Compensation Scheme
Ratio Decidendi: The Court's decision was based on the medical opinion that termination of the pregnancy would be risky to the petitioner's life and the fetus. The State's responsibility to provide medical facilities and compensation to the victim under the Victim Compensation Scheme was also considered.
Final Decision: The Court directed the petitioner to continue medical treatment and granted her compensation under the Victim Compensation Scheme. The operation of the judgment and order passed by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No.5286 of 2017 was stayed.
ORDER
1. This Court on 3.5.2017, after hearing the learned counsel for the parties, had passed the following order :-
“The present case exposits a situation of its own kind. The petitioner, a woman, aged about thirty-five years, invoked the jurisdiction of the High Court of Patna in Civil Writ Jurisdiction Case No.5286 of 2017, seeking termination of the pregnancy on the ground that after being sexually assaulted, she was given rehabilitation in the Women Rehabilitation Centre, namely, 'Shanti Kutir', Mahila Punarwas Kendra, Patliputra, Patna, Bihar, where her pregnancy was discovered. It has also been found that she is HIV Positive. She expressed her desire to terminate the pregnancy on 4th March, 2017. Medical Thereafter, she was examined by the Patna College and Hospital. As nothing fruitful happened in the said College, the petitioner was compelled to knock at the doors of the High Court under Article 226 of the Constitution of India.
The High Court directed the petitioner to be examined by a Medical Board at Indira Gandhi Institute of Medical Sciences, Patna. The Board submitted a report that a major surgical procedure was required. The High Court took up the matter for hearing and, after referring to certain decisions of this Court, came to hold that the Medical Board report has stated that it would be unsafe to the life of the petitioner and further there is compelling State's responsibility to keep the child alive. We do not intend to get into those analysis of the High Court at present.
When the matter was taken up today, we requested Mr. P.S. Narasimha and Mr. Tushar Mehta, learned Additional Solicitor General as to whether arrangements can be made for the petitioner to come to Delhi to be examined by a Medical Board at All India Institute of Medical Sciences (AIIMS), New Delhi. Be it noted, Ms. Vrinda Grover, learned counsel along with Mr. T. Mahipal, learned counsel appearing for the petitioner, after obtaining instructions from the petitioner, has submitted that she is inclined to be examined by a Medical Board at AIIMS, New Delhi.
Mr. P.S. Narasimha and Mr. Tushar Mehta have submitted that a member from the Non Governmental Organization, namely, Koshish-TISS, the respondent No.5 herein, should accompany the petitioner to Delhi. As far as the travel is concerned, Mr. Narasimha and Mr. Mehta spoke in unequivocal voice that the arrangements shall be made for the petitioner and the accompanying member so that they can come to Delhi where further arrangements shall be made for their stay and the petitioner can be examined by the Medical Board at AIIMS latest by 6th May, 2017.
The report of the Medical Board shall be produced before this Court and we would also request Mr. Narasimha and Mr. Mehta to assist the Court on the issue and also to have some discussion with the doctors, for we are concerned with saving a life of a destitute woman. As we are inclined to think that a woman, who has already become a destitute being sexually assaulted and suffering from a serious medical ailment, not to go through further sufferings. The quintessential purpose of life, be it a man or a woman, is the dignity of life and all efforts are to be made to sustain it.
2. In pursuance of our order, the Medical Board at All India Institute of Medical Sciences (AIIMS) has examined the petitioner. The opinion of the Medical Board fundamentally is that at present the procedure involved in termination of the pregnancy is risky to the life of the petitioner and the fetus in the womb. the Medical Board has 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.
3. In view of the aforesaid opinion, it is the accepted position at the Bar that there cannot be termination of pregnancy. Learned counsel for the petitioner would submit that the petitioner along with the companion be sent back to Patna and for the said purpose appropriate arrangements be
