IMPORTANT POINTS
In cases like the present one identity of the party should be protected.
Pregnancy of a destitute HIV+ve woman, victim of rape should be terminated by the hospital authorities as per mandate of the 1971 Act.

Headnote:(a) Practice and procedure – Name of party in cause title – Need to protect identity – Directed to be substituted with Ms. Z in all records including official website and all other search engines. (Para 1)
       (b) Victim compensation – Under public law and u/s 357-A of Code of Criminal Procedure, 1973 – Cause 4 of Victim Compensation Scheme, Bihar – Compensation of Rs.3,00,000/-(Rupees three lac only) directed to be paid to appellant. (Para 13)
       (c) Medical Termination of Pregnancy Act, 1971 – Sections 3 and 5 r/w Regulation 3, Medical Termination of Pregnancy Regulations, 2003 – Medical Board listing various hazards of termination of pregnancy but not mentioning there being risk to life of appellant – No finding of appellant being mentally ill – Appellant adult of 35 years of age – Alleging rape being cause of pregnancy – High Court ought to permit termination. (Para 23)
       (d) Medical Termination of Pregnancy Regulations, 2003 – Regulation 3 – Form I – Medical practitioner required to form opinion as per Act, 1971 – Appellant giving consent to termination of pregnancy alleging rape – Termination not carried out – Held, it is negligence on part of doctors. (Para 26)
       (e) Medical Termination of Pregnancy Regulations, 2003 – Regulation 3 – Consent – Mental retardation and mental illness – Distinction – Appellant suffering from mild mental retardation – Still in a position to express her consent – Giving consent to termination of pregnancy – Categorically alleging rape – No reason why PMCH should not have proceeded with the termination particularly when it was not likely to cause danger to appellant’s life. (Para 39)
       (2009) 9 SCC 1; AIR 2017 SC 1055; 2017(5) SCALE 428; AIR 2017 SC 461 – Relied upon
       AIR 2016 SC 3525 – Referred
       (f) Compensation – Grant under public law – Appellant victim of rape and suffering from HIV+ve – By negligence doctors not terminating the pregnancy when it could safely be done – Now AIMS opining danger to life of appellant on termination – Negligence in statutory duty by doctors causing mental torture to appellant which has more grievous impact – Principle of State interest does not apply – Appellant has suffered grave injury to her mental health which is in continuance – Apart from compensation of 300000 already granted u/s 357-A CrPC, compensation of 1000000 granted – Direction for care of the child given. (Para 43, 44)
       (2012) 8 SCC 1; (1993) 2 SCC 746; (2006) 3 SCC 178; (2012) 1 SCC 748; (2000) 2 SCC 465; (2016) 11 SCC 703 – Relied upon
       (g) Constitution of India – Article 226 – Appellant being destitute no reason to implead her husband and father – Besides, appellant victim of rape and living in shelter home – High Courts required to be more sensitive in matters like instant one. (Para 55)
       (h) Maxim – Actus curiae neminem gravabit (an act of the court shall prejudice no man) – Contention that State should not be made to pay compensation for delay in termination of appellant’s pregnancy because of orders of High Court – Principle not attracted instantly because compensation is directed on account of delay caused by the authorities of PMCH. (Para 56)
       (1988) 2 SCC 602; (1871) LR 3 PC 465 : 17 ER 120 – Referred
       Facts of the case:
       The appellant, a thirty-five year old woman who was living on the footpath was brought to Shanti Kutir on 25th January, 2017. On 8th February, 2017 it was found that she was 13 weeks and 6 days pregnant. On 4th March, 2017, she expressed her desire to terminate the pregnancy revealing that she had been raped and, therefore, the pregnancy should be terminated. However, the hospital authorities did not proceed with the termination of the pregnancy. On 3rd April, 2017, she was again taken to PMCH, but the termination was not carried out and, by that time, her pregnancy was 20 weeks old. The appellant was found to be HIV+ve.
       The appellant approached the High Court.
       The High court declined to permit medical termination of the pregnancy.
       Finding of the Court:
       High Court ought to permit termination of pregnancy.
       Result: Appeal allowed.

Judgement Key Points

Identity of the rape victim must be protected by substituting her name with "Ms. Z" in all court records, official websites, and search engines. (!) (!)
Pregnancy of a destitute HIV-positive rape victim should be terminated by hospital authorities under the Medical Termination of Pregnancy Act, 1971, when within permissible limits and consent is given. (!)
High Court erred in denying termination; medical board did not indicate risk to life, victim alleged rape (presuming grave mental injury), was adult (35 years), and capable of consent despite mild mental retardation (distinguished from mental illness). (!) [1000596790006][1000596790022][1000596790026][1000596790038]
Hospital negligence in delaying termination despite victim's consent, rape allegation, and FIR under IPC Section 376; termination feasible at 17-20 weeks without life risk. [1000596790021][1000596790025][1000596790038]
Consent of victim's guardian not required as she was major, destitute, not mentally ill, and capable of expressing consent; no need to implead husband or father. [1000596790026][1000596790027][1000596790054] (!)
Victim entitled to Rs. 3,00,000 under Bihar Victim Compensation Scheme (Section 357A CrPC, Clause 4) as rape victim. (!) [1000596790052]
Additional Rs. 10,00,000 compensation under public law remedy for hospital negligence causing ongoing grave mental injury, trauma, and denial of reproductive rights; to be fixed deposit with interest for victim's and child's use. [1000596790043][1000596790052][1000596790053]
State must provide full medical care, treatment graph coordination (e.g., via AIIMS), nutrition, and post-natal support for victim and child up to age 5; ongoing liberty to approach High Court. (!) (!) [1000596790012][1000596790053]
High Courts must handle such cases with sensitivity, prioritizing victim's rights over fetus or family consents; promptitude essential as time critical in pregnancy. [1000596790013][1000596790054][1000596790057]
Actus curiae neminem gravabit not applicable; liability on hospital authorities (PMCH), not court delay. [1000596790054][1000596790055]
Reproductive autonomy part of Article 21 dignity; rape pregnancy presumes grave mental injury (MTP Act Section 3(2) Explanation 1); doctor's good faith opinion required in Form I. (!) (!) [1000596790020][1000596790024][1000596790027]
Mild mental retardation does not negate consent capacity; evaluation based on individual's ability, not blanket guardian override for majors. [1000596790006][1000596790026][1000596790032][1000596790038]

JUDGMENT

Dipak Misra, J.

An interlocutory application being I.A. No. 64980 of 2017 has been filed seeking certain directions. Having heard learned counsel for the parties, it is directed that name of the appellant in the cause title be substituted with Ms. Z so that her identity is not revealed; the Registry of the Court shall substitute the name of the appellant with Ms. Z in all records, including on the official website of this Court, and the Registry of the High Court of Patna shall substitute the name of the appellant with Ms. Z in all records, including the official website of the High Court. Leave is granted to the appellant to seek substitution of her name with Ms. Z on all search engines such as google.com, legal websites such as indiakanoon.org as well as legal journals. Interlocutory application is accordingly allowed.

2. The factual score that has been depicted in the instant appeal is reflective of a retardant attitude and laxness to the application of the provisions of law at the appropriate time by the authorities that can cause a disastrous affect on the mind of a hapless victim. And the victim here is a destitute woman, who was brought to a shelter home from the footpath, as she was not wanted by her husband and her family, living in abject poverty and being scared of social stigma could not afford her a home. Sans a sense of belonging, she was brought to ‘Shanti Kutir’, a shelter home, run by an organization named Youth Mobilization for National Advancement (YMNA) under the Mukhyamantri Bhikshavriti Nivaran Yojna a scheme floated by the Government of Bihar for destitute women. The woman, a destitute, was found to be pregnant by the functionaries of the home and further being aware of the fact that she had been condemned to that condition because of rape committed on her, the competent authority of the home took her to the hospital for termination of pregnancy with her consent. Though the steps taken by the shelter home were prompt, yet delay was caused by the authorities of the hospital. The delay in such a situation has the seed that can cause depression to a woman, who is already in despair. And this despair has the potentiality to drive one on the path of complete distress. In such a situation, the victim in a state of anguish may even think of surrendering to death or live with a traumatic experience which can be compared to have a life that has been fragmented at the cellular level. It is because the duty cast on the authorities under the Medical Termination of Pregnancy Act, 1971 (for brevity, ‘the Act’) is not dutifully performed, and the failure has ultimately given rise to a catastrophe; a prolonged torment. That is the sad narrative of the victim appellant.

3. The appellant, a thirty-five year old woman, was living on the footpath in Phulwarisharif, Patna. On 25th January, 2017, she was brought to Shanti Kutir. The medical test done by Shanti Kutir showed that she was pregnant. On 2nd February, 2017, she was taken to Patna Medical College Hospital, Patna (PMCH), for medical examination. On 8th February, 2017, an ultrasound test was done at PMCH, and it was found that she was 13 weeks and 6 days pregnant. On 4th March, 2017, she expressed her desire to terminate the pregnancy and, accordingly, she was taken to PMCH for further medical examination. At that juncture, the appellant revealed that she had been raped and, therefore, the pregnancy should be terminated. On 14th March, 2017, she was taken to PMCH for termination and her father and brother were called and made to sign a consent form, which they duly signed. However, the hospital authorities did not proceed with the termination of the pregnancy. It is worthy to mention here that on 18th March, 2017, an F.I.R. under Section 376 of the Indian Penal Code (IPC) was registered with Mahila Police Station, Patna as Case No.13 of 2017. The Home Super

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2017 Supreme(SC) 752

SUPREME COURT OF INDIA Dipak Misra, Amitava Roy, A.M. Khanwilkar, JJ.Ms. Z – Appellant(s)Versus The State of Bihar and Others – Respondent(s) CIVIL APPEAL NO.10463 OF 2017 Decided On : 17-08-2017

IMPORTANT POINTSIn cases like the present one identity of the party should be protected. Pregnancy of a destitute HIV+ve woman, victim of rape should be terminated by the hospital authorities as per mandate of the 1971 Act.

Cases Referred (13)

SUPREME COURT OF INDIA
Dipak Misra, Amitava Roy, A.M. Khanwilkar, JJ.
Ms. Z – Appellant(s)
Versus
The State of Bihar and Others – Respondent(s)
CIVIL APPEAL NO.10463 OF 2017
Decided On : 17-08-2017

IMPORTANT POINTS
In cases like the present one identity of the party should be protected.
Pregnancy of a destitute HIV+ve woman, victim of rape should be terminated by the hospital authorities as per mandate of the 1971 Act.