Point of Law: Criminal Law - Crime against women and Children – Inheritance of high court - Extraordinary Writ jurisdiction - It is settled position of law that in certain circumstances, this Court being a Constitutional Court has the power under writ jurisdiction to direct termination of pregnancy, the length of which being beyond twenty weeks. The requirement of law is that a report needs to be called from a committee of qualified medical professionals of a Government facility as to the mental and physical health of the pregnant girl/woman and recommendation on the question of termination of such pregnancy, length of which is beyond twenty weeks

JUDGMENT :

Manish Pitale, J.

1. Rule. Rule made returnable forthwith. Heard finally.

2. At the outset, it is required to be noted that since the allegations leveled by the petitioner are in respect of the alleged sexual assault, the identity of the petitioner needs to be concealed, therefore, the petitioner is referred to as “ABC”. The Registry is directed to maintain the record accordingly.

3. By this petition, the petitioner has approached this Court invoking the extraordinary writ jurisdiction under Article 226 of the Constitution of India for a direction to permit termination of pregnancy of her minor daughter aged about seventeen years and few months. The said daughter of the petitioner was victim of alleged rape resulting in to the pregnancy which is now of more than twenty weeks duration and therefore petitioner has been compelled to knock the doors of this Court.

4. It is stated in the petition that the petitioner was constrained to cause registration of an FIR on 02.03.2021 against accused person for offences under section 376(3) of the Indian Penal Code (IPC) and sections 4, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”), for the sexual assault and rape suffered by her minor daughter. As per the FIR, the daughter of the petitioner was aged about seventeen years and two months old when the incident of rape took place, resulting in pregnancy. According to the petitioner, she and her husband discovered about pregnancy of her daughter when she missed her menstrual cycles for about four months and she was required to be taken to the doctor. Since the daughter of the petitioner is mentally challenged, the fact about the said rape and consequent pregnancy could not be discovered earlier. After she was taken to the doctor and the pregnancy was revealed, the daughter of the petitioner divulged how she was repeatedly sexually assaulted and raped by the accused, resulting in the pregnancy.

5. As a consequence, aforesaid FIR dated 02.03.2021 stood registered against the accused. Since the pregnancy of the daughter of the petitioner exceeded twenty weeks, she had to approach this Court. Copy of the FIR along with sonography report and certificate of the doctor stating that the daughter of the petitioner as on 06.03.2021 was pregnant of 20.6 weeks have been annexed with the petition.

6. When this petition was listed before this Court on 10.03.2021, notices were issued to the respondents and respondent No.2 i.e. the Civil Surgeon of Ratnagiri District Hospital was directed to constitute a Medical Board/ Committee by invoking section 3 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as “the Act of 1971”). The said committee was directed to medically examine the daughter of the petitioner and send the report to the learned APP appearing for the respondents, so that it would be made available before this Court for perusal.

7. When this writ petition was taken up for hearing, learned APP tendered across the Bar a copy of the report in sealed envelope of the committee, same is taken on record. In said report, it is recommended by the committee that medical termination of pregnancy could be undertaken on humanitarian grounds as the pregnancy was the result of alleged sexual assault of the victim who is less than eighteen years of age and suffers from mild mental disability.

8. Mr. Karansingh B. Rajput, learned counsel appearing for the petitioner submitted that in the facts and circumstances of the present case, this Court ought to exercise extraordinary writ jurisdiction to allow the prayers made in the writ petition. Learned counsel has placed reliance on the provisions of sections 3, 4 and 5 of the Act of 1971 to submit that in view of the aforesaid report of the committee constituted in terms of order dated 10.03.2021 passed by this Court, present writ petition deserves to be allowed and a direction needs to be given to the respondent No.2 to carry out medical termination of preg