1. Whether the father/guardian of the minor pregnant daughter can get the foetus of the minor daughter aborted, when the pregnant minor daughter herself is not agreeable for such termination is the question raised in this case;

2. In other words, whether the minor daughter's right to life under Article 21 includes the right to beget a life or create a life is the more pertinent issue raised.

Brief Facts:

3. The writ petition seeking to terminate the pregnancy of his daughter, was filed by the father and presented before this Court in person by both the father Marimuthu and mother Selvarani.

3.1. Originally, the petitioner/father preferred a complaint before the 1st respondent complaining that his minor daughter was missing (from 13.02.2016). The 1st respondent after investigation, arrived at the conclusion that one Sithanathan, S/o Perumal kidnapped the petitioner's daughter by offering false promise of marriage and on 14.04.2016, they were secured. Thereafter, a case of girl missing registered in Crime No.57 of 2016 was altered into Sections 417, 366A and 376 of IPC and Section 4 & 5 of POCSO Act.

3.2. The accused was arrested and produced before the Juvenile Justice Board, as he was aged 17. The petitioner's daughter was sent for medical examination. On 15.04.2016, the Doctor gave the report that the minor girl was pregnant and the age of the womb was found to be 14 weeks.

3.3. The critical period of twenty weeks, before which alone there can be a safe abortion, was over by 05.07.2016. The father alleged that his minor daughter was made pregnant on account of the rape committed by the accused and therefore, the 1st respondent should refer the petitioner's daughter to the Medical Officers (R2 and R3) in order to get the pregnancy terminated. So seeking this writ of mandamus has been filed.

4. The father and the mother appeared in person before this Court on 20.07.2016. On hearing both of them, the alleged minor daughter Mariammal and the allegedly responsible persons Sithanathan were suo motu impleaded as R4 and R5 by this Court and the impleaded parties were directed to be produced before this Court on 21.07.2016.

4.1. On 21.07.2016, this Court has passed the following order:

“2.....

3. Today, both the respondents 4 and 5 appeared before this Court and Sithanathan/R5 has admitted that he is the person responsible for the pregnancy of Mariammal. However, the said Mariammal is not in a position to say whether she is prepared to beget the child or is willing to terminate her pregnancy.

4. In order to avoid further loss of time, this Court feels it appropriate to refer the daughter of the petitioner Mariammal to the Rajaji Government Medical College Hospital, Madurai. The Dean of Rajaji Government Medical College Hospital, Madurai is directed to depute a team of Doctors, consisting of not less than three registered medical practitioners to examine Mariammal and find out,

(a) the duration of pregnancy;

(b) to ascertain as to whether it is advisable to terminate her pregnancy at this stage; and

(c) whether the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, as contemplated under Section 3(2)(i) of the Medical Termination of Pregnancy Act, 1971 and submit a report to this Court forthwith.”

4.2. Again the case was listed on 22.07.2016.

4.3. After examination of the pregnant girl/R4, the Dean, Madurai Medical College, Madurai has submitted a report dated 21.07.2016 to this Court, wherein it has been stated as under:

“Single live intra uterine gestation of 21-22 wks”

4.4. Before medical examination, when the Doctors sought for consent of the minor girl for examination, the girl has stated that she is not willing to abort the foetus itself. Necessary endorsement also finds place in the report. Perhaps, that could have been the reason as to why with regard to the safety of abortion, no specific opinion has been expressed.

5. The contention of the father is that