Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10463 OF 2017

Ms. Z          ... Appellant(s)

Versus

The State of Bihar and Others         …Respondent(s)

J U D G M E N T

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

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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

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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

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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 Superintendent, Shanti Kutir

wrote to the Superintendent of Patna Medical College and

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Hospital, Patna, stating, inter alia, that the pregnancy is

more than 17 weeks and a divorce petition had been filed

by the husband, and the father and the brother of the

appellant expressed their inability to take her with them

because of social and financial constraints.   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. As the factual narration would reveal, the

appellant was found to be HIV+ve.   

4. As the pregnancy was not carried out, the appellant

approached the High Court in C.W.J.C. No. 5286 of 2017

with  the  prayer  to  ascertain  the  physical  condition

including  the  stage  of  pregnancy  and  to  direct  for

termination  of  pregnancy  as  she  had  been  sexually

assaulted and further she was HIV+ve.  The High Court,

on 10th April, 2017, permitted the counsel for the victim

to implead the husband and her father and the Director

of  Indira  Gandhi  Institute  of  Medical  Sciences,  Patna

(IGIMS). Thereafter, the learned single Judge directed for

constitution  of  a  Medical  Board  at  IGIMS,  Patna,  to

assess  the  physical  and  mental  condition  of  the  writ

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petitioner therein and the fetus.  On that day, the High

Court  also  directed  the  Home  Superintendent,  Shanti

Kutir, a Women Rehabilitation Centre, to file a counter

affidavit.   Similar  direction was  issued to  the  State  of

Bihar and Superintendent of PMCH.  A further direction

was  given  by  the  High  Court  to  the  Senior

Superintendent  of  Police,  Patna,  to  submit  an  interim

report  with  regard  to  the  progress  of  investigation  in

Mahila P.S. Case No.13 of 2017.

5. It is apt to note here that the Director, IGIMS, Patna

was directed to constitute a Multi  Disciplinary Medical

Board consisting of Heads of Department of Gynecology,

Neurology and Forensic Medicine.  Liberty was granted to

the Director, IGIMS to nominate one or more doctors as

members  of  the  Multi  Disciplinary  Medical  Board  to

examine the victim with regard to physical and mental

state and the condition of the fetus.  The writ petitioner

was directed to make herself present before the Director,

IGIMS,  on 11th April,  2017 at  10.30  a.m.   The  IGIMS

examined the victim and submitted a report in a sealed

cover.

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6. As the factual matrix would further uncurtain, on

18th April, 2017, the High Court took note of the fact that

the name of the appellant’s husband had been wrongly

mentioned  and  a  direction  was  issued  to  make  dasti

service  on  the  husband  and  the  father  through  the

Officer  In-charge  of  the  local  police  station  and  the

matter  was  fixed  for  20th April,  2017.   On  20th April,

2017,  the  matter  could  not  be  taken  up  and  stood

adjourned to 21st April,  2017.  On the adjourned date,

the father of the appellant prayed for time to file counter

affidavit.  The High Court expressed its displeasure that

despite the specific direction, the Senior Superintendent

of  Police,  Patna,  had  not  filed  any  counter  affidavit,

although  a  submission  was  made  by  the  learned

Additional Advocate General that he had been intimated

by  the  Senior  Superintendent  of  Police  that  the

investigation was in progress and likely to be over within

six  months.   Thereafter,  the  High  Court  proceeded  to

determine the issue whether the victim, who is HIV+ve

and is carrying a pregnancy of 24 weeks could be allowed

to have medical termination of pregnancy under the Act.

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The stand of the Government before the High Court was

that the victim was being provided with all facilities to

survive in rehabilitation centre and the pregnancy could

not be terminated because the identity of the father of

the  victim was  not  established and he  had refused to

swear  an  affidavit  in  this  regard  and  subsequently

escaped from the scene.  The stand of the father of the

victim before the High Court was that he did not have

any objection for getting the pregnancy terminated. The

husband, the respondent No.  8 before the High Court,

admitted  that  he  had  entered  into  wedlock  with  the

victim and in the said wedlock two children were born,

but the victim had deserted him in March, 2007, and the

said circumstances led him to file Matrimonial Suit No.

984 of  2015 before the Principal  Judge,  Family  Court,

Patna, seeking dissolution of marriage.   

7. The  High  Court  perused  the  report  submitted  by

IGIMS, which suggested that the pregnancy was 20 to 24

weeks  old  and  the  termination  of  pregnancy  would

require  major  surgical  procedure  along  with  the

subsequent consequences such as bleeding, sepsis and

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anesthesia hazards.  The report that was filed by IGIMS,

which has been referred to by the High Court, needs to

be reproduced:

Issues Opinion

1.  Examination  report  of  the patient (petitioner) with regard to  her  physical  and  mental stage  (Physical  Medical examination of all system will be desirable: Respiratory,  CVS,  Neurology etc.

Physical  Examination:  Pulse  – 100/min  regular,  BP-114/80 mmHg, Pallor-Mild, lcerus-NIL, edema-Nil,  Cyanosis  & clubbing-Nil,  JVP  –  normal, Chest  –  B/L  clear  no  added sound; CVS-S1 & S2 – Normal, no  added  sound;  P/A  exam- fundal  height  corresponds  to 22-24  wk  pregnancy;  CNS  – Higher  mental  function  intact, no  focal  neurological  deficit. Mentally  alert,  well  oriented with  time,  place  &  person (Annexure I)

2. Stage of Pregnancy. 2nd trimester  of  approximately 23 wks (as per 1st USG report of whole abdomen on 08.02.2017 of PMCH.  And IGIMS, USG on dated  11.04.2017  shows  21 wks fetus…..(Annexure-II) According  to  recommendations 1st i.e.,  earliest  USG  is  to  be used  for  Gestational  age calculation.

3. Overall condition of foetus Normal  single  alive intra-uterine  foetus  (As  per Physical examination and USG report)

4. How far the termination of pregnancy  will  be  detrimental to the petitioner.

Termination  of  Pregnancy  at this stage sometimes may need major surgical procedure along with  the  subsequent consequences  such  as Bleeding,  Sepsis  and Anesthesia hazards.

5.How  far  it  will  be detrimental, if the petitioner is allowed  to  complete  full  term

The  patient  can  continue pregnancy  according  to  NACO guidelines.   Still  there  is

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of pregnancy. likelihood  that  fetus  may  be HIV+ve.   But  definitive diagnosis  can  only  be  given when  the  child  is  18  months old.

6   How  far  it  will  be detrimental  to  the  petitioner and foetus, particularly in view of the fact that she is mentally abraised and HIV+VE.

As per the clinical assessment &  documentary  evidence,  the patient  is  diagnosed  to  have Psychiatry illness, provisionally Schizophrenia with Mild Mental Retardation.   She  is  currently on  medications  and behaviourally  stable  and  will require  long  term  psychiatry treatment.

7. Investigation reports Reports  which  are  made available  before  the  Board Members are….. Annexure-III. Some  investigation  reports which  are  not  available  at IGIMS like CD4 +T Lymphocyte count,  Serum  HIV  RNA  level (Viral  load)  and  Triple  Marker Maternal Blood test advised by concerned  members  are  still awaited,  after  which progression of HIV and through marker  congenital  abnormality of foetus can be assessed.

8. The  learned  Single  Judge,  after  referring  to  the

provisions of the Act, observed thus:

“In the present case, the medical report does not  suggest  that  the foetus is  suffering from any abnormality.  It further does not suggest that the foetus has already been infected with HIV+ve.   It  only  predicts  that  any  definite opinion  can  be  given  only  when  the  child attains  the  age  of  18  months.   The  Medical report  further  does  not  suggest  that  if  the victim is allowed to carry the pregnancy to its

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full course, then she will suffer any risk of life or  grave  injury  to  her  physical  or  mental health.   Explanation  1  of  Sub-Section  2  of Section 3, provides that such pregnancy which is alleged to have been caused by rape shall be presumed  to  constitute  grave  injury  to  the mental health of the pregnant woman.  In the present case, the victim has alleged that she had  been  ravished,  but  her  conduct  of  not disclosing the incident of rape for more than 13  weeks  and  deciding  not  to  get  the pregnancy terminated for more than 20 weeks, as the writ application has been filed after 20 weeks of pregnancy i.e. on 07.04.2017, prima facie,  does  not  suggest  that  such  alleged conceivement has really caused grave injury to the mental health of the victim.  Moreover, the termination, as contemplated under Section 3 of the Act, 1971, is only permissible up to 20 weeks of pregnancy.   Definitely the effort  for termination was made on behalf of the victim in the 17th week of pregnancy, but the present writ  application  has  been  filed  before  this Court after 20 weeks of her pregnancy.”

9. After so stating, the High Court adverted to Sections

3 to 5 of the Act and opined that the provisions are not

applicable  to  the  writ  petitioner.  The  learned  Single

Judge  also  referred  to  Section  10  of  the  Human

Immunodeficiency  Virus  and  AIDS  (Prevention  and

Control)  Act,  2017  and  distinguished  the  decisions

rendered  in  Meera  Santosh  Pal  v.  Union  of  India1,

X v.  Union of India and others2 and  X v.  Union of

1   AIR 2017 SC 461 2   AIR 2017 SC 1055

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India  and  others3.  He  placed  reliance  on  Sheetal

Shankar  Salvi  and  another  v.  Union  of  India4,

wherein this Court has declined termination of 20 weeks

of pregnancy.  The High Court, thereafter, adverted to the

statement of law in Suchita Srivastava and another v.

Chandigarh  Administration5 and  reproduced  certain

paragraphs and took note of the concept that in the case

of a pregnant woman and ‘compelling State interest’ and

further adverted to the doctrine of ‘parens patriae’ where

in certain situations the State must make decisions in

order  to  protect  the  interest  of  those  persons who are

unable to take care of themselves. Thereafter, the learned

single Judge adverted to the two standards, namely, ‘best

interests’  test  and  ‘substituted  judgment’  test  as  laid

down in  Suchita  Srivastava (supra).  The  High  Court

also  dwelled  upon  the  role  of  the  court  that  it  must

undertake a careful inquiry of the medical opinion on the

feasibility  of  the  pregnancy  as  well  as  social

circumstances faced by the victim.

3   AIR 2016 SC 3525 4   2017(5) SCALE 428 5   (2009) 9 SCC 1

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10. After  so  stating,  the  learned  Single  Judge  delved

into the factual score projected in the writ petition and

opined thus:

“In the present case also, in the ‘best interest’ of the victim and the foetus, this Court finds no  reason  to  exercise  the  jurisdiction  under Article  226  of  the  Constitution  of  India  for directing the pregnancy to be terminated in its 23-24 weeks, particularly such termination of pregnancy,  as  per  the  Medical  Board  report would be hazardous to the life of  the victim. However,  keeping  in  view  the  fact  that  the victim was leading a life of destitute and she has been almost deserted by her husband, her father, her brother and her sister, as none of them in their counter affidavit have stated that they are ready to take her to their house, this Court  feels  that  she  will  be  safe  if  she  is allowed  to  remain  in  rehabilitation  centre, Shanti Kutir so long she desires.

Mr. Kaushal Kumar Jha, learned AAG-8 submits  that  the rehabilitation center  is  run by  the  Government  and  the  Government  is ready to provide all medical facilities, as well as amenities of day to day life to the victim.

In the circumstances, it is expected from the  Superintendent,  PMCH to  get  the  victim medically  examined  every  month  or  so  and provide all medicines or other medical facilities required for carrying the pregnancy to its full term and bringing up the child after its birth, till the child attains the age of five years.  The Superintendent,  PMCH  would  ensure  to provide  the  victim  with  necessary  medical cover in light of the direction made above.  

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This Court is hopeful that the NGO will take  care  of  the  victim  and  provide  all  the facilities for the post-natal care.

In the  circumstances,  in  the  interest  of justice  and  in  the  interest  of  victim  and foetus/prospective  child,  this  Court  is  not inclined to  permit  the  medical  terminaton of pregnancy of the victim.”

11. After  so holding,  the  learned Single  Judge issued

certain directions, which are to the following effect:

(i) Respondent  No.4  will  get  the  bank account of the victim opened within a period of one week, if she does not have one.

(ii) Respondent Nos.7 and 8, the father and the husband of the victim will deposit Rs.1,000 and Rs.1,500/-, respectively, per month in the account of the victim from May, 2017.

(iii) If  respondent Nos.7 and 8 make default in payment on three consecutive occasions, of the installment of the aforesaid amount, then any  of  the  concerned  parties  would  be  at liberty to file an application before this Court and  respondent  Nos.7  and  8  will  be answerable to this Court, in this regard.

(iv) Respondent Nos.7 and 8 will provide their mobile  number  to  the  respondent  No.4  and shall visit the victim every month.

(v) Respondent No.4 shall allow the relatives and husband of the victim to meet her. (vi) One  copy  of  the  report  of  the  Medical Board  will  be  kept  with  the  records  of  the present case and one copy of  the conclusive medical  report  will  be  transmitted  to

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respondent  No.4  by  the  Director  of  IGIMS, Patna.

(vii) The Director, IGIMS, Patna will transmit the  awaited  medical  report  of  the  victim,  as mentioned  in  Clause-7  of  the  report  of  the Medical Board, to respondent No.4.”

12. The  High  Court  decided  the  matter  on

26th April, 2017.  When the said order was challenged,

the present appeal was taken up on 3rd May, 2017.  The

learned counsel for the appellant referred to the facts as

asserted in the special leave petition which is evincible

from the order of the High Court. Though the Union of

India is not a party, Mr. P.S. Narasimha and Mr. Tushar

Mehta, learned Additional Solicitors General were asked

as  to  whether  arrangements  could  be  made  for  the

appellant to come to Delhi to be examined by a Medical

Board at All India Institute of Medical Sciences (AIIMS),

New  Delhi.   Learned  counsel  for  the  appellant,  after

obtaining instructions, stated that she is inclined to be

examined by the Medical Board at AIIMS.  Taking note of

the same, the Court directed as follows:

“Mr.  P.S.  Narasimha  and  Mr.  Tushar  Mehta have submitted that a member from the Non Governmental  Organization,  namely,

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Koshish-TISS,  the  respondent  No.5  hereing, 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 quientessential 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.”

13. In pursuance of the order passed by this Court, the

Medical  Board  at  AIIMS examined the  appellant.   The

opinion  of  the  Medical  Board  was  that  the  procedure

involved in termination of the pregnancy is risky to the

life of the appellant and the fetus in the womb.  It has

suggested that she should be advised to continue HAART

therapy and routine antenatal care to reduce the risk of

HIV transmission to the fetus.  In view of the said report,

the Court on 9th May, 2017, directed as follows:

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“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  made  by  the Union  of  India  to  which  Mr.  Tushar  Mehta, learned Additional Solicitor General concedes. We appreciate the stand taken by the Union of India in this regard.  

Learned  counsel  for  the  petitioner submitted that the doctors at AIIMS may give the  appropriate  treatment  graph  for  the petitioner so that she can survive the health hazard  that  she  is  in.  Mr.  Tushar  Mehta, learned Additional Solicitor General submitted that she will be given the treatment graph by 10.05.2017.

The  controversy  does  not  end  here. Learned  counsel  for  the  petitioner  would submit that because of the delay caused, she is compelled to undergo the existing miserable situation and, therefore, she is entitled to get compensation  and  that  apart,  she  is  also entitled to get compensation under the Victim Compensation  Scheme  as  framed  under Section  357-A  of  the  Code  of  Criminal Procedure by the State of Bihar.  

Apart from the above submission, we are obligated to direct the State of Bihar to provide all the medical facilities to the petitioner as per the treatment graph given by the doctors who are going to examine the petitioner at AIIMS through the Indira Gandhi Institute of Medical Sciences at Patna. The Indira Gandhi Institute of Medical Sciences shall work in coordination with  AIIMS,  New  Delhi  so  that  the  health

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condition  of  the  petitioner  is  not  further jeopardized.  

Learned  counsel  for  the  petitioner  is granted  liberty  to  file  an  additional  affidavit with regard to the facet of compensation within six weeks hence.  The State  of  Bihar,  who is represented by Ms. Abha R. Sharma, learned counsel shall  file a reply to the special leave petition as  well  as  to  the  additional  affidavit within four weeks therefrom.  

We  have  stated  about  the  grant  of compensation  hereinbefore.  The  one  facet  of granting compensation pertains to negligence and delay  which come within the  domain of public  law  remedy.  The  other  aspect  of  the compensation comes under the scheme dated 24.3.2014 framed under Section 357-A of the Code of Criminal Procedure. Needless to say, the  petitioner  is  eligible  to  get  the compensation  under  the  said  Scheme  and, therefore, the petitioner shall be paid a sum of Rs.3,00,000/- (Rupees three lac  only)  by the State of Bihar as she has been a victim of rape. Needless  to  say,  we  have  determined  the compensation regard being had to clause 4 of the Scheme. The said amount shall be paid to her within four weeks hence and compliance report thereof shall be filed before the Registry of  this Court.   As far  as the other aspect of compensation  is  concerned,  the  said  aspect shall be considered on 9.8.2017.”

14. We have narrated the facts in  extenso so that the

controversy can be appreciated in proper perspective and

further the laxity on the part of the authorities and also

the  approach  of  the  High  Court  can  be  appositely

19

deliberated upon.  It is submitted by Ms. Vrinda Grover,

learned counsel for the appellant that she is entitled to

get  compensation from the State under  the public law

remedy as the authorities under the State have not acted

with quite promptitude in terminating the pregnancy and

procrastinated the matter,  as  a consequence of  which,

the appellant is compelled to lead a life of terrible agony

and anguish, and constant state of uncertainty.  It is her

submission that as the appellant was a destitute staying

in a shelter home and neither the father or her siblings

had  shown any  concern  because  of  social  stigma and

their  own  impecuniosity  and  the  husband  had

abandoned  her  to  her  fate  and  preferred  a  divorce

petition, there was no justification to obtain the consent

of  the  father  or  the  husband  for  termination  of

pregnancy.  That apart, she contends that the approach

of the High Court is wholly fallacious since it seeds more

concerned with the future of the foetus but not the life of

the victim. It is canvassed by the learned counsel that

the appellant was thirty-five years old when she had gone

to  the  hospital  and  expressed  her  willingness  in  no

20

uncertain terms to terminate her pregnancy as she had

been raped and an F.I.R.  has  been lodged,  it  was the

obligation of the competent authorities of the PMCH to

proceed  with  the  termination  and  not  to  cause  delay

which invited complications. According to her, when her

case fell squarely within the statutory framework, there

was  no reason to  show slackness.  She also contends

that the High Court has completely failed to appreciate

the spirit of the Act and has treated it as an adversarial

litigation  and  passed  the  order  which  not  only

unsustainable  in  law  but  also  projects  total  lack  of

sensitivity.    

15. Pyramiding  the  submission  for  grant  of

compensation  from  the  State,  learned  counsel  would

contend that when the appellant had gone to the PMCH,

it was obligatory on the part of the authorities to proceed

with the termination and that apart, the State had, in a

way, contested the writ petition. Learned counsel would

further propound that the concept of  ‘compelling State

interest’ is not applicable to the case at hand but the said

concept  was  unnecessarily  highlighted.  She  would

21

canvass that when the statutory function is not carried

out and the fundamental choice which is available to the

appellant  in  law  is  totally  curtailed  and  scuttled,  the

victim is entitled for compensation, for the entire action

has caused her immense mental torture.  She has drawn

our  attention  to  the  affidavit  filed  by  the

respondent-State, where the State has taken a stand that

the  consent  of  the  father  and  the  husband  was

necessary, which was not the statutory warrant in the

case  of  the  appellant.   Structuring  the  submission

pertaining to grant of  compensation, Ms. Grover would

submit that her choice not to exercise her reproductive

rights  in  the  factual  matrix  has  been  completely

shattered  in  contravention  of  the  statutory  provisions

and the pronouncements of this Court as a consequence

of which she is being compelled to carry the pregnancy to

its  full  term  that  has  caused  incalculable  harm  and

irreversible injury giving rise to emotional  trauma. She

would contend, with all  the humility at  her command,

that when there is violation of such right because of the

negligence  of  the  State  functionaries,   the  victim  is

22

entitled  to  get  compensation.  To  buttress  the  said

submission, she has commended us to the authorities in

Nilabati  Behera  v.  State  of  Orissa6,   D.K.  Basu  v.

State of West Bengal7 and Chairman, Railway Board

and others v. Chandrima Das (Mrs.) and others8.

16. Ms. Abha R. Sharma, learned counsel appearing for

the  State  of  Bihar,  contends  that  the  State  has  taken

care of the appellant as directed by this Court and there

has been no negligence on the part of the authorities of

the State and, therefore, the State cannot be held liable

to pay compensation.  She has further urged that before

the  High  Court,  the  State  has  shown  an  affirmative

attitude and if any delay has been caused, it is because

of the expression of the view by the High Court for which

the  State  cannot  be  found fault  with.  In  essence,  her

submission  is  that  the  maxim,  actus  curiae  neminem

gravabit,  shall  protect  the  action  of  the  State  and  it

cannot be blamed for any procrastination.  

17. To appreciate the rivalized submissions advanced at

the Bar, it is necessary to understand the background in

6   (1993) 2 SCC 746 7   (1997) 1 SCC 416 8   (2000) 2 SCC 465

23

which  the  Act  was  enacted  by  the  Parliament.  The

Statement of  Objects and Reasons of  the Act reads as

follows:

“The  provisions  regarding  the  termination  of pregnancy in the Indian Penal Code which were enacted about a century ago were drawn up in keeping with the then British Law on the subject. Abortion was made a crime for which the mother as  well  as  the  abortionist  could  be  punished except where it had to be induced in order to save the life of  the mother.   It  has been stated that this  very  strict  law  has  been  observed  in  the breach in a very large number of cases all over the country.  Furthermore, most of these mothers are married women, and are under no particular necessity to conceal their pregnancy.

2.  In recent years, when health services have expanded  and  hospitals  are  availed  of  to  the fullest  extent  by  all  classes  of  society,  doctors have  often  been  confronted  with  gravely  ill  or dying  pregnant  women  whose  pregnant  uterus have been tampered with a view to causing an abortion and consequently suffered very severely.

3. There  is  thus  avoidable  wastage  of  the mother’s  health,  strength  and,  sometimes,  life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure–when there is danger to life or risk to physical or mental health of the woman; (2) on humanitarian grounds–such as when pregnancy arises from a sex crime like rape or intercourse with  a  lunatic  woman,  etc.;  and  (3)  eugenic grounds–where there is substantial risk that the child, if born, would suffer from deformities and diseases.”

24

18. The  aforesaid  makes  it  absolutely  clear  that  the

Legislature intended to liberalize the existing provisions

relating to termination of pregnancy keeping in view the

danger to life or risk to physical or mental health of the

woman;  on  humanitarian  grounds,  such  as  when

pregnancy  arises  from  a  sex  crime  like  rape  or

intercourse with a lunatic woman, and eugenic grounds

where there is  substantial  risk that  the child,  if  born,

would suffer from deformities and diseases.

19. Section 2,  which is  the  dictionary  clause,  defines

the term "guardian" to mean a person having the care of

the person of a minor or a mentally ill person.  "Mentally

ill person” has been defined to mean a person who is in

need  for  treatment  by  reason  of  any  mental  disorder

other than mental retardation. The dictionary clause also

defines  the  terms  ‘minor’  and  ‘registered  medical

practitioner’.   

20. Section 3 stipulates that when pregnancy may be

terminated  by  the  registered  medical  practitioners.   It

reads as follows:

25

“Section  3.  When  pregnancies  may  be terminated  by  registered  medical practitioners.—(1)  Notwithstanding  anything contained in the Indian Penal Code (45 of 1860), a  registered  medical  practitioner  shall  not  be guilty of  any offence under that Code or under any other law for the time being in force, if any pregnancy  is  terminated  by  him in  accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy  may  be  terminated  by  a  registered medical practitioner,—  

(a) where the length of the pregnancy does not exceed  twelve  weeks  if  such  medical practitioner is, or  

(b) where the length of the pregnancy exceeds twelve  weeks  but  does  not  exceed  twenty weeks, if not less than two registered medical practitioners are,  

of opinion, formed in good faith, that,—  

(i)  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; or  

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or  mental  abnormalities  as  to  be  seriously handicapped.  

Explanation 1.—Where any pregnancy is alleged by the pregnant woman to have been caused by rape,  the  anguish  caused  by  such  pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.—Where any pregnancy occurs as a result of failure of any device or method used

26

by any married woman or her husband for the purpose of limiting the number of children, the anguish  caused  by  such  unwanted  pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.  

(3)  In  determining  whether  the  continuance  of pregnancy would involve  such risk of  injury  to the  health  as  is  mentioned  in  sub-section  (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment.

(4)  (a)  No pregnancy of  a woman,  who has not attained  the  age  of  eighteen  years,  or,  who, having  attained the  age  of  eighteen years,  is  a mentally  ill  person,  shall  be  terminated  except with the consent in writing of her guardian.  

(b) Save as otherwise provided in C1ause (a), no pregnancy  shall  be  terminated  except  with  the consent of the pregnant woman.”

[Emphasis added]

21. We  have  underlined  the  relevant  part  of  the

provision for the purpose that where length of pregnancy

exceeds  12  weeks but  does  not  exceed 20 weeks,  two

registered medical practitioners, after forming an opinion

in  good  faith,  that  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 and that

there is  substantial  risk that if  the child were born,  it

would suffer from physical or mental abnormalities as to

27

be seriously handicapped, may terminate the pregnancy.

Explanation 1 to sub-section (2) of Section 3 to which our

attention  has  been  drawn  postulates  that  where  any

pregnancy  is  alleged  by  the  pregnant  woman  to  have

been caused by rape, the anguish caused by the same

has to be presumed to constitute a grave injury to the

mental  health  of  the  pregnant  woman.   Once  such  a

statutory  presumption  is  provided,  the  same  comes

within the compartment of grave injury to mental health.

Sub-Section  (4)  of  Section  3  requires  consent  of  the

guardian  of  a  minor,  or  a  major  who  is  mentally  ill

person.   The  opinion  to  be  formed  by  the  medical

practitioners is to be in good faith.

22. In the instant case, the gravamen of the submission

of the learned counsel for the appellant is that negligence

and delay  have  been caused  by  the  authorities  of  the

State.  Be it noted, learned counsel for the appellant has

filed  a  chart  giving  various  dates  to  highlight  the

chronology  of  events.  On a  perusal  of  the  same,  it  is

demonstrable  that  after  the  appellant  was  brought  to

Shanti Kutir, it was noticed that she was pregnant.  She

28

was taken to PMCH.  At that time, she was 13 weeks and

6 days pregnant. In the midst of 18th week, she expressed

her  desire  to  terminate  her  pregnancy  and  that  was

communicated by the Shanti Kutir to the hospital and,

thereafter, she was taken to PMCH, where she made an

allegation that  she  had been raped and expressed her

desire to terminate her pregnancy. Though she was taken

to  the  hospital  for  termination  of  pregnancy,  yet  the

hospital  authorities  instead  of  proceeding  with  the

termination, called the father of the appellant to sign the

consent form.  According to the learned counsel for the

appellant, while she had gone to the government hospital

and clearly stated that she had been raped and further

she  was  taken  by  the  persons  from the  Shanti  Kutir,

which  is  a  Women  Rehabilitation  Centre,  and  further

there was no material  that she was suffering from any

mental  illness,  it  was  obligatory  on  the  part  of  the

hospital to terminate the pregnancy.  Had that been done

at the right time, the grave mental torture that she has

been going through could have been avoided.  Learned

counsel also criticized the approach of the High Court in

29

not  dealing  with  the  matter  with  required  amount  of

sensitivity  and not  adhering  to  the  statutory  provision

that when there is an allegation of rape, the pregnancy

can be terminated.  The High Court directed for a Medical

Board to be constituted and after receipt of the report of

the  Medical  Board  some  time  was  consumed  and,

thereafter, also the High Court required the father of the

appellant to file an affidavit giving his consent.

23. We have already anlaysed in detail the factual score

and the approach of the High Court.  We do not have the

slightest  hesitation in saying  that  the  approach of  the

High  Court  is  completely  erroneous.  The  report

submitted  by  the  IGIMS  stated  that  termination  of

pregnancy may need major surgical procedure along with

subsequent consequences such as bleeding, sepsis and

anesthesia hazards, but there was no opinion that the

termination could not be carried out and it was risky to

the life of the appellant.  There should have been a query

in this  regard by the High Court  which it  did not  do.

That apart, the report shows that the appellant, who was

a  writ  petitioner  before  the  High  Court,  was  suffering

30

from  mild  mental  retardation  and  she  was  on

medications and her condition was stable and she would

require  long  term  psychiatry  treatment.  The  Medical

Board has not  stated that  she was suffering from any

kind of mental illness. The appellant was thirty-five year

old at that time.  She was a major.  She was able to allege

that  she  had  been  raped  and  that  she  wanted  to

terminate her pregnancy.  PMCH, as we find, is definitely

a place where pregnancy can be terminated.  For the said

purpose, we may usefully reproduce Section 4 of the Act:

“Section 4.─Place where pregnancy may be terminated.-No  termination  of  pregnancy shall be made in accordance with this Act at any place other than,-

(a) a hospital established or maintained by Government, or

(b) a place for the time being approved for the purpose of this Act by Government or a District  Level  Committee  constituted  by that  Government  with  the  Chief  Medical Officer  or  District  Health  Officer  as  the Chairperson of the said Committee.

Provided  that  the  District  Level  Committee shall  consist  of  not  less  than three  and not more  than  five  members  including  the Chairperson, as the Government may specify from time to time.”

31

24. The Medical Termination of Pregnancy Regulations,

2003  (for  short,  ‘the  Regulations’)  deals  with  various

aspects.   Regulation  3  provides  for  form  of  certifying

opinion  or  opinions.  It  stipulates  that  where  one

registered medical practitioner forms or not less than two

registered medical practitioners form such opinion as is

referred to in sub-section (2) of Section 3 or 5, he or she

shall certify such opinion in Form I.  It further provides

that every registered medical practitioner who terminates

any  pregnancy  shall  within  three  hours  from  the

termination of the pregnancy certify such termination in

Form  I.   Regulation  4  deals  with  custody  of  forms.

Sub-Regulation  (1)  of  Regulation  4  provides  that  the

consent given by a pregnant woman for the termination

of  her  pregnancy,  together  with  the  certified  opinion

recorded under Section 3 or Section 5, as the case may

be and the intimation of termination of pregnancy shall

be placed in an envelope which shall  be sealed by the

registered medical practitioner or practitioners by whom

such termination of pregnancy was performed and until

that envelope is sent to the head of the hospital or owner

32

of the approved place or the Chief Medical Officer of the

State,  it  shall  be  kept  in  the  safe  custody  of  the

concerned  registered  medical  practitioner  or

practitioners,  as  the  case  may  be.   Be  it  noted  that

Section  5  is  an  exception  to  Sections  3  and  4,  for  it

provides that Sections 3 and 4 would not apply to certain

circumstances  as  enumerated  in  Section  5.   In  the

present case, we are concerned with Regulation 3 only.  

25.  The  Form  No.  I  has  been  provided  under

Regulation 3 and that covers sub-section (2) of Section 3

and Section 5.   The relevant  part  of  the  said  Form is

reproduced below:

“*I/We  hereby  give  intimation  that  *I/We terminated  the  pregnancy  of  the  woman referred  to  above  who  bears  the  serial  No. …………..  in  the  Admission  Register  of  the hospital/approved place.

Place……       Signature of the Registered                               Medical Practitioner

Date….. ..              Signature of the Registered                              Medical Practitioner

Strike out whichever is not applicable.

** of the reasons specified items (i) to (v) write the one which is appropriate:-

33

(i) in order to save the life of the pregnant woman,

(ii) in order to prevent grave injury to the physical  and  mental  health  of  the pregnant woman,

(iii) in view of the substantial  risk that if the child was born it would suffer from such physical or mental abnormalities as to be seriously handicapped,  

(iv) as  the  pregnancy  is  alleged  by pregnant woman to have been caused by rape,

(v) as  the  pregnancy  has  occurred  as result  of  failure  of  any  contraceptive device  or  methods  used  by  married woman or her husband for the purpose of limiting the number of children

Note. – Account may be taken of the pregnant woman’s  actual  or  reasonably  foreseeable environment  in  determining  whether  the continuance of her pregnancy would involve a grave injury to her physical or mental health.

Place…. Date…..  

                 Signature of the Registered                    Medical Practitioner/Practitioners”

26. Thus, the opinion has to be formed by the registered

practitioners as per the Act and they are required to form

an opinion that continuance of pregnancy would involve

a grave mental or physical harm to her. We have already

34

referred  to  Explanation  1  which  includes  allegation  of

rape.  As is perceivable, the appellant had gone from a

women  rehabilitation  centre,  had  given  consent  for

termination  of  pregnancy  and  had  alleged  about  rape

committed on her, but the termination was not carried

out.  In such a circumstance, we are obliged to hold that

there has been negligence in carrying out the statutory

duty,  as  a  result  of  which,  the  appellant  has  been

constrained to suffer grave mental injury.

27. In such a situation, submits Ms. Grover, the State

is bound to compensate the appellant under public law

remedy.  It  is  her  proponement  that  the  appellant  was

suffering from mental retardation, but not from mental

illness and the distinction is clear from the language of

sub-section (4) of Section 3 of the Act.  That apart, her

contention is that the victim was a destitute and in such

a situation, impleadment of her husband and father for

obtaining their consent was wholly unwarranted and, in

a way, allow time to ‘rule’.

28. In  Suchita Srivastava (supra), the High Court of

Punjab & Haryana ruled that it was in the best interests

35

of a mentally  retarded woman to undergo an abortion.

The victim had become pregnant as a result of an alleged

rape  that  took  place  when  she  was  an  inmate  at  a

government-run  welfare  institution  located  in

Chandigarh  and  after  discovery  of  her  pregnancy,  the

Chandigarh Administration, approached the High Court

seeking approval  for  the termination of  her pregnancy,

keeping  in  mind  that  in  addition  to  being  mentally

retarded she was also an orphan who did not have any

parent or guardian to look after her or her prospective

child.  The High Court perused the preliminary medical

opinion and constituted an expert body and, eventually,

directed  the  termination  of  pregnancy  in  spite  of  the

expert body’s findings which show that  the victim had

expressed  her  willingness  to  bear  a  child.   In  that

context,  the  Court  adverted  to  the  distinction between

the ‘mental illness’ and ‘mental retardation’.  It also noted

that  the  expert  body’s  findings  were  in  favour  of

continuation of pregnancy and took note of the fact that

the  victim  had  clearly  given  her  willingness  to  bear  a

child.  In that context, the Court stated:

36

“The  victim’s  reproductive  choice  should  be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the  pregnancy  to  its  full  term  and  the assumption  of  maternal  responsibilities thereafter. We have adopted this position since the  applicable  statute  clearly  contemplates that  even  a  woman  who  is  found  to  be “mentally retarded” should give her consent for the termination of a pregnancy.”

And again:

“There  is  no  doubt  that  a  woman’s  right  to make reproductive choices is also a dimension of  “personal  liberty”  as  understood  under Article  21  of  the  Constitution  of  India.  It  is important  to  recognise  that  reproductive choices can be exercised to procreate as well as  to  abstain  from  procreating.  The  crucial consideration  is  that  a  woman’s  right  to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction  whatsoever  on  the  exercise  of reproductive choices such as a woman’s right to  refuse  participation  in  sexual  activity  or alternatively  the  insistence  on  use  of contraceptive  methods.  Furthermore,  women are also free to choose birth control methods such  as  undergoing  sterilisation  procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently  raise  children.  However,  in  the case  of  pregnant  women  there  is  also  a “compelling State interest” in protecting the life of  the  prospective  child.  Therefore,  the termination of  a pregnancy is  only permitted when the conditions specified in the applicable statute  have  been  fulfilled.  Hence,  the provisions of  the MTP Act,  1971 can also be

37

viewed  as  reasonable  restrictions  that  have been  placed  on  the  exercise  of  reproductive choices.”

29. Explaining  the  provision  of  the  Act,  the  Court

opined  that  ordinarily  a  pregnancy  can  be  terminated

only  when  a  medical  practitioner  is  satisfied  that  a

continuance of the  pregnancy would involve risk to the

life  of  the  pregnant  woman  or  of  grave  injury  to  her

physical or mental health or when there is a substantial

risk that if the child were born, it would suffer from such

physical  or  mental  abnormalities  as  to  be  seriously

handicapped.  While  the  satisfaction  of  one  medical

practitioner  is  required  for  terminating  a  pregnancy

within twelve weeks of the gestation period, two medical

practitioners  must  be  satisfied  about  either  of  these

grounds  in  order  to  terminate  a  pregnancy  between

twelve to twenty weeks of the gestation period.

30. The  Court  also  took  note  of  the  provision  that

termination  of  the  pregnancy  has  been  contemplated

when the same is the result of a rape or a failure of birth

control methods, since both of these eventualities have

been equated with a grave injury to the mental health of

38

a  woman.  The  Court  emphasized  that  in  all  such

circumstances, the consent of the pregnant woman is an

essential requirement for proceeding with the termination

of  pregnancy.  The  three-Judge  Bench  referred  to  the

Persons with Disabilities (Equal Opportunities, Protection

of  Rights  and  Full  Participation)  Act,  1995  (for  short,

‘1995 Act’) and opined that in the said Act also “mental

illness” has been defined as mental disorder other than

mental  retardation.  The  Court  also  took  note  of  the

definition  of  “mental  retardation”  under  the  1995  Act.

The definition read as follows:

“2(r) ‘mental retardation’ means a condition of arrested or incomplete development of mind of a  person which is  specially  characterised  by subnormality of intelligence.”

31. The  Court  also  apprised  itself  that  the  same

definition  of  “mental  retardation”  has  also  been

incorporated under Section 2(g) of the National Trust for

Welfare of Persons with Autism, Cerebral Palsy, Mental

Retardation  and  Multiple  Disabilities  Act,  1999.

Analysing  the  provision  of  Act.  The  Court  opined  that

while  a  guardian  can  make  decisions  on  behalf  of  a

“mentally ill  person” as per Section 3(4)(a)  of  the 1971

39

Act, the same cannot be done on behalf of a person who

is  in  a  condition  of  “mental  retardation”.  Thus,  the

difference  between  the  ‘mental  illness’  and  ‘mental

retardation’ as recognized in law, was emphasised.   

32. The  three-Judge  Bench  proceeded  to  address  the

‘best interest’ of the victim and invocation of the doctrine

of parens patriae. In that context, it held:

“As  evident  from  its  literal  description,  the “best  interests”  test  requires  the  Court  to ascertain  the  course  of  action  which  would serve  the  best  interests  of  the  person  in question.  In  the  present  setting  this  means that  the  Court  must  undertake  a  careful inquiry of the medical opinion on the feasibility of  the  pregnancy  as  well  as  social circumstances  faced  by  the  victim.  It  is important  to  note  that  the  Court’s  decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is  evident  that  the  woman  in  question  will need care  and assistance  which will  in  turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.”

33. After so stating, the Court adverted to the facts of

the case and came to hold that though the victim had

been described as a person suffering from mild mental

retardation,  that  did  not  mean  that  she  was  entirely

incapable of making decision for herself.  It discarded the

40

‘substituted judgment’ test, which requires the Court to

step into the shoes of a person who is considered to be

mentally  incapable  and  attempt  to  make  the  decision

which  the  said  person  would  have  made,  if  she  was

competent to do so.  The Court observed that it is a more

complex inquiry but this test can only be applied to make

decisions  on  behalf  of  persons  who  are  conclusively

shown to be mentally incompetent.  The Court noted that

there are varying degrees of mental retardation, namely,

those described as borderline, mild, moderate, severe and

profound instances of the same. Persons suffering from

severe and profound mental retardation usually require

intensive care and supervision and a perusal of academic

materials suggests that there is a strong preference for

placing  such  persons  in  an  institutionalised

environment. However, persons with borderline, mild or

moderate  mental  retardation  are  capable  of  living  in

normal  social  conditions  even  though  they  may  need

some supervision and assistance from time to time.

34. The  Court  referred  to  the  United  Nations

Declaration on the Rights of Mentally Retarded Persons,

41

1971 [GA Res 2856 (XXVI) of 20-12-1971] and relied on

principle  No.7  of  the  same.  Principle  No.  7  reads  as

follows:  

“Whenever  mentally  retarded  persons  are unable,  because  of  the  severity  of  their handicap,  to  exercise  all  their  rights  in  a meaningful way or it should become necessary to restrict or deny some or all of these rights, the  procedure  used  for  that  restriction  or denial  of  rights  must  contain  proper  legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social  capability of  the mentally retarded person  by  qualified  experts  and  must  be subject to periodic review and to the right of appeal to higher authorities.”

35. Placing reliance on the same, it observed thus:

“In  respecting  the  personal  autonomy  of mentally retarded persons with regard to the reproductive  choice  of  continuing  or terminating  a  pregnancy,  the  MTP  Act  lays down such a procedure. We must also bear in mind that India has ratified the Convention on the Rights of Persons with Disabilities (CRPD) on 1-10-2007 and the contents of the same are binding on our legal system.

x x x x It  would  also  be  proper  to  emphasise  that persons who are found to be in a condition of borderline,  mild  or  moderate  mental retardation are capable of being good parents. Empirical studies have conclusively disproved the  eugenics  theory  that  mental  defects  are likely to be passed on to the next generation. The said “eugenics theory” has been used in the past to perform forcible sterilisations and

42

abortions on mentally  retarded persons.  [See generally:  Elizabeth C.  Scott,  “Sterilization of Mentally  Retarded  Persons:  Reproductive Rights and Family Privacy”, Duke Law Journal 806-65  (November  1986).]  We  firmly  believe that  such measures  are  anti-democratic  and violative of the guarantee of “equal protection before the law” as laid down in Article 14 of our Constitution.

It is also pertinent to note that a condition of “mental retardation” or developmental delay is gauged  on  the  basis  of  parameters  such  as intelligence quotient (IQ) and mental age (MA) which mostly relate to academic abilities. It is quite possible that a person with a low IQ or MA  may  possess  the  social  and  emotional capacities that will enable him or her to be a good parent. Hence, it is important to evaluate each  case  in  a  thorough  manner  with  due weightage being  given to  medical  opinion for deciding whether a mentally retarded person is capable  of  performing  parental responsibilities.”

36. On the  basis  of  the aforesaid  analysis,  the  Court

concluded:

“In our considered opinion, the language of the MTP  Act  clearly  respects  the  personal autonomy  of  mentally  retarded  persons  who are above the age of  majority.  Since none of the other statutory conditions have been met in this case, it is amply clear that we cannot permit a dilution of the requirement of consent for  proceeding  with  a  termination  of pregnancy.  We  have  also  reasoned  that proceeding  with  an  abortion  at  such  a  late stage (19-20 weeks of gestation period) poses

43

significant risks to the physical health of the victim.”

37. In the said case, the Court took note of the fact that

the expert body which had examined the victim indicated

that the continuation of the pregnancy did not pose any

grave risk to the physical and mental health of the victim

and  that  there  was  no  indication  that  the  prospective

child  was  likely  to  suffer  from  a  congenital  disorder.

Regard  being  had  to  the  totality  of  the  facts  and

circumstances of the case, it was directed that the best

medical  facilities  be  made  available  so  as  to  ensure

proper  care  and  supervision  during  the  period  of

pregnancy as well as for the post-natal care.

38. In a recent decision in Ms. Eera Thr. Dr. Manjula

Krippendorf   v.  State  (Govt.  of  NCT of  Delhi)  and

another9, the distinction between the mental illness and

mental  retardation,  keeping  in  view  the  statutory

provisions and the concept of  purposive interpretation,

has been accepted.

39. In the  case  at  hand,  the  appellant  is  a  victim of

rape.  She suffers from mild mental retardation and she

9   2017 (8) SCALE 112

44

is  administered  psychiatry  treatment,  but  she  is  in  a

position  to  express  her  consent.  Under  the  statutory

framework,  she  was  entitled  to  give  her  consent  for

termination  of  pregnancy.  As  is  evident,  she  did  not

desire to bear a child. This is a reverse situation what

has been portrayed in Suchita Srivastava (supra).  The

principle  set  out  in  Suchita  Srivastava  (supra)

emphasizes on consent.  As the facts would unfurl, the

appellant had given consent for termination and she had

categorically alleged about rape.  In such a circumstance,

we  perceive  no  fathomable  reason  on  the  part  of  the

PMCH  not  to  have  proceeded  for  termination  of  the

pregnancy because there was nothing on record to show

that there was any danger to the life of the victim.   

40. In  this  context,  we  may  refer  with  profit  to  the

recent decision rendered in X v. Union of India (supra)

wherein the Court laying stress on a woman’s right to

make  reproductive  choices  and  further  taking  into

consideration the report of the Medical Board directed as

follows:

“Though  the  current  pregnancy  of  the petitioner  is  about  24  weeks  and  endangers

45

the life and the death of the foetus outside the womb is inevitable, we consider it appropriate to permit the petitioner to undergo termination of  her pregnancy under the provisions of the Medical  Termination of  Pregnancy Act,  1971. We order accordingly.”

41. In  Sheetal  Shankar  Salvi (supra),  a  two-Judge

Bench declined termination of pregnancy after perusal of

the report of the Medical Board. The observations and the

conclusion of the Court are to the following effect:

“However, having regard to the fact that there is no danger to the mother’s life and the likelihood that ‘the baby may be born alive and may survive for variable period of time, we do not consider it appropriate in the interests of justice  to  direct  the  respondents  to  allow petitioner  no.  1  to  undergo  medical termination  of  her  pregnancy.   In  fact,  the aforesaid Medical Board has itself stated that it  does  not  advise  medical  termination  of pregnancy  for  petitioner  no.  1  on  medical grounds.

 The only other ground that appears from the observations made in the aforesaid medical report apart from the medical grounds, is that petitioner no. 1 is anxious about the outcome of the pregnancy. We find that the termination of pregnancy cannot be permitted due to this reason.”

On a careful reading of the aforesaid decision, we do

not have slightest hesitation in our mind that the facts in

46

the said cases and the observations made therein have

no application to the facts of the instant case.  

42. In Meera Santosh Pal (supra), the Court noted the

fact  that  the  foetus  is  without  a  skull  and  would,

therefore,  not  be  in  a  position  to  survive.  The  Court

adverted  to  the  fact  that  the  petitioner  therein  was  a

woman  of  average  intelligence  and  with  good

comprehension and she had understood that her foetus

was abnormal and the risk of foetal mortality was high.

She  had  also  the  support  of  her  husband  in  her

decision-making.  The Court allowed the termination of

pregnancy despite the pregnancy having gone into 24th

week. What weighed with the Court was danger to the life

of the woman and the certain inability of the foetus to

survive extra-uterine life.  Emphasis has been laid on the

aspect that the overriding consideration is that she has a

right to take all such steps as necessary to preserve her

own life against the avoidable danger to it.

43. In the case at hand, we have noted,  termination of

pregnancy  could  have  been  risky  to  the  life  of  the

appellant as per the report of the Medical Board at AIIMS

47

which was constituted as per the direction of this Court

on 3rd May, 2017. This situation could have been avoided

had the decision been taken at the appropriate time by

the government hospital at Patna. For the negligence and

carelessness  of  the  hospital,  the  appellant  has  been

constrained  to  suffer.   The  mental  torture  on  certain

occasions has more  grievous impact  than the  physical

torture.  

44. In  Mehmood  Nayyar  Azam  v.  State  of

Chhattisgarh10,  the Court has observed that the word

“torture” in its denotative concept includes mental and

psychological harassment. It has the potentiality to cause

distress and affects  the dignity of  a  citizen.  Under  the

present Act, the appellant is covered by the definition.  In

such a situation, there was no justification to push back

her rights and throw her into darkness to corrode her

self-respect and individual concern. She had decided to

exercise her statutory right, being a victim of rape, not to

bear the child and more so, when there is possibility of

the child likely to suffer from HIV+ve, the authorities of

the State should have been more equipped to assist the

10  (2012) 8 SCC 1

48

appellant instead of delaying the process. That apart, as

is seen, the State in a way contested the matter before

the High Court on the foundation of State interest.  The

principle of State interest is not at all applicable to the

present  case.  Therefore,  the  concept  of  grant  of

compensation under public law remedy emerges.

45. In Nilabati Behera (supra), Justice J.S. Verma, (as

His Lordship then was), opined thus:

“‘a  claim in public  law for  compensation’  for contravention  of  human  rights  and fundamental freedoms, the protection of which is  guaranteed  in  the  Constitution,  is  an acknowledged  remedy  for  enforcement  and protection  of  such  rights,  and  such  a  claim based on strict liability made by resorting to a constitutional  remedy  provided  for  the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention  of  the  fundamental  right.  The defence  of  sovereign  immunity  being inapplicable,  and  alien  to  the  concept  of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which  justifies  award  of  monetary compensation  for  contravention  of fundamental  rights  guaranteed  by  the Constitution, when that is the only practicable mode of redress available for the contravention made  by  the  State  or  its  servants  in  the purported  exercise  of  their  powers,  and enforcement  of  the  fundamental  right  is claimed by resort to the remedy in public law

49

under the Constitution by recourse to Articles 32 and 226 of the Constitution.”

46. Dr. A.S. Anand, (as His Lordship then was), in his

concurring opinion, expressed that:

“The  relief  of  monetary  compensation,  as exemplary  damages,  in  proceedings  under Article  32  by  the  Supreme  Court  or  under Article 226 by the High Courts, for established infringement  of  the  indefeasible  right guaranteed  under  Article  21  of  the Constitution  is  a  remedy  available  in  public law  and  is  based  on  the  strict  liability  for contravention  of  the  guaranteed  basic  and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but  also  to  assure  the  citizen  that  they  live under  a  legal  system which  aims  to  protect their  interests  and  preserve  their  rights. Therefore, when the court moulds the relief by granting ‘compensation’ in proceedings under Articles 32 or 226 of the Constitution seeking enforcement  or  protection  of  fundamental rights, it does so under the public law by way of  penalising  the  wrongdoer  and  fixing  the liability  for  the  public  wrong  on  the  State which has failed in its public duty to protect the  fundamental  rights  of  the  citizen.  The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by  an  order  of  making  ‘monetary  amends’ under the public law for the wrong done due to breach  of  public  duty,  of  not  protecting  the fundamental  rights  of  the  citizen.  The compensation  is  in  the  nature  of  ‘exemplary damages’  awarded against  the  wrongdoer  for the  breach  of  its  public  law  duty  and  is independent  of  the  rights  available  to  the

50

aggrieved party to claim compensation under the  private  law  in  an  action  based  on  tort, through  a  suit  instituted  in  a  court  of competent  jurisdiction  or/and  prosecute  the offender under the penal law.”

47. In  Sube  Singh  v.  State  of  Haryana11,  a

three-Judge  Bench,  after  referring  to  earlier  decisions,

held:

“It is thus now well settled that the award of compensation  against  the  State  is  an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum  of  compensation  will,  however, depend upon the facts and circumstances of each  case.  Award  of  such  compensation  (by way of public law remedy) will not come in the way  of  the  aggrieved  person  claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor  come  in  the  way  of  the  criminal  court ordering  compensation under  Section  357 of the Code of Criminal Procedure.”

48. In  Hardeep Singh v. State of M.P.12, though the

High Court had granted compensation of  Rs. 70,000/-,

this Court, while concurring with the opinion that related

to  justification  of  compensation,  enhanced  the

compensation by holding thus:

“Coming,  however,  to  the  issue  of compensation, we find that in the light of the

11  (2006) 3 SCC 178 12  (2012) 1 SCC 748

51

findings arrived at by the Division Bench, the compensation of Rs 70,000 was too small and did  not  do  justice  to  the  sufferings  and humiliation undergone by the appellant. In the facts  and circumstances of  the case,  we feel that a sum of Rs 2,00,000 (Rupees two lakhs) would  be  an  adequate  compensation  for  the appellant and would meet the ends of justice. We,  accordingly,  direct  the  State  of  Madhya Pradesh to pay to the appellant the sum of Rs 2,00,000 (Rupees two lakhs) as compensation. In case the sum of Rs 70,000 as awarded by the High Court, has already been paid to the appellant, the State would naturally pay only the  balance  amount  of  Rs  1,30,000  (Rupees one lakh thirty thousand).”

49. In  Chairman, Railway Board  (supra),  the Court

copiously adverted to the public law remedy and finding

fault with the Railways and opined that:

“Running  of  the  Railways  is  a  commercial activity. Establishing the Yatri Niwas at various railway  stations  to  provide  lodging  and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of  sovereign power. The employees of  the Union of  India who are deputed to run the Railways and to manage the establishment,  including  the  railway  stations and the Yatri Niwas, are essential components of the government machinery which carries on the  commercial  activity.  If  any  of  such employees  commits  an act  of  tort,  the  Union Government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to  the  person  wronged  by  those  employees. Kasturi  Lal  decision46  therefore,  cannot  be

52

pressed into aid. Moreover, we are dealing with this case under the public law domain and not in  a  suit  instituted  under  the  private  law domain  against  persons  who,  utilising  their official position, got a room in the Yatri Niwas booked  in  their  own  name  where  the  act complained of was committed.”

50. On  the  aforesaid  basis,  this  Court  affirmed  the

judgment of the High Court and directed that the amount

of  compensation  should  be  made  over  to  the  High

Commissioner for Bangladesh in India for payment of the

same to the victim as she was entitled to it.

51. In  Rini Johar and another v. State of Madhya

Pradesh  and  others13,  the  petitioners  therein  were

arrested in violation of the mandate of law under Section

41A of the Code of Criminal Procedure and the judgment

of  this  Court  rendered  in  D.K.  Basu  (supra).  The

petitioners  in  the  said  case  were  a  doctor  and  a

practicing advocate.  The arrest being illegal, the Court

opined that their dignity had been absolutely jeopardized.

Referring  to  the  earlier  decisions,  the  Court  held  as

under:

“In such a situation, we are inclined to think that the dignity of the petitioners, a doctor and a  practising  advocate  has  been  seriously

13   (2016) 11 SCC 703

53

jeopardised.  Dignity,  as  has  been  held  in Charu Khurana v. Union of India, (2015) 1 SCC 192,  is  the  quintessential  quality  of  a personality, for it is a highly cherished value. It is also clear that liberty of the petitioner was curtailed in violation of law. The freedom of an individual  has  its  sanctity.  When  the individual  liberty  is  curtailed  in  an unlawful manner,  the  victim  is  likely  to  feel  more anguished,  agonised,  shaken,  perturbed, disillusioned  and  emotionally  torn.  It  is  an assault on his/her identity. The said identity is sacrosanct under the Constitution. Therefore, for curtailment of liberty, requisite norms are to be followed. Fidelity to statutory safeguards instil  faith of  the  collective  in  the  system. It does not require wisdom of a seer to visualise that for some invisible reason, an attempt has been  made  to  corrode  the  procedural safeguards  which  are  meant  to  sustain  the sanguinity of liberty. The investigating agency, as it seems, has put its sense of accountability to law on the ventilator. The two ladies have been arrested without following the procedure and put in the compartment of a train without being  produced  before  the  local  Magistrate from  Pune  to  Bhopal.  One  need  not  be Argus-eyed to perceive the same. Its visibility is as clear as the cloudless noon day. It would not be erroneous to say that the enthusiastic investigating agency had totally  forgotten the golden words of Benjamin Disraeli:

“I repeat … that all power is a trust—that we are accountable for its exercise—that, from the  people  and  for  the  people,  all springs and all must exist.”

We  are  compelled  to  say  so  as  liberty which is basically the splendour of beauty of life and bliss of growth, cannot be allowed to

54

be  frozen  in  such  a  contrived  winter.  That would  tantamount  to  comatosing  of  liberty which is the strongest pillar of democracy.”

52. After so holding, the Court referred to the concept of

public law remedy and awarded Rs. 5,00,000/- (Rupees

five  lakhs  only)  towards  compensation  to  each  of  the

petitioners to be paid by the  State  within a stipulated

time.

53. In  the  instant  case,  it  is  luminescent  that  the

appellant has suffered grave injury to her mental health.

The said injury is in continuance.  It is a sad thing that

despite the prompt attempt made by this Court to get her

examined so that she need not undergo the anguish of

bearing a child because she is a victim of rape, it could

not be so done as the medical report clearly stated that

there was risk to the life of the victim.  Therefore, we are

inclined  to  think  that  the  continuance  of  the  injury

creates a dent in the mind and the appellant is compelled

to suffer the same.  One may have courage or cultivate

courage  to  face  a  situation,  but  the  shock  of  rape  is

bound to chain and enslave her with the trauma she has

faced and cataclysm that she has to go through.  Her

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condition  cannot  be  reversed.   The  situation  as  is

unredeemable.   But  a  pregnant  one,  she  has  to  be

compensated so that she lives her life with dignity and

the  authorities  of  the  State  who  were  negligent  would

understand that truancy has no space in a situation of

the present kind.  What needed is promptitude.  

54. This Court had earlier directed that she should be

paid  compensation  under  the  Victims  Compensation

Scheme as framed under Section 357-A of the Code of

Criminal Procedure.  She has been paid Rs. 3,00,000/-

as she has been a victim of rape. It may be clearly stated

that  grant  of  compensation for  the  negligence and the

suffering  for  which  the  authorities  of  the  State  are

responsible is different as it comes within the public law

remedy and it has a different compartment.  Keeping in

view the mental injury that the victim has to suffer, we

are disposed to think that the appellant should get a sum

of  Rs.  10,00,000/-  (Rupees  ten  lakhs  only)  as

compensation from the State and the same shall be kept

in a fixed deposit in her name so that she may enjoy the

interest.  We have so directed as we want that money to

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be properly kept and appropriately utilized.  It may also

be required for child’s future.  That apart, it is directed,

that the child to be born, shall be given proper treatment

and  nutrition  by  the  State  and  if  any  medical  aid  is

necessary, it shall also be provided. If there will be any

future  grievance,  liberty  is  granted  to  the  appellant  to

approach  the  High  Court  under  Article  226  of  the

Constitution of India after the birth of the child.

55. Having  said  so,  it  is  necessary  to  state  that  the

learned singe Judge should have been more alive to the

provisions of the Act and the necessity of consent only of

the  appellant  in  the  facts  of  the  case.  There  was  no

reason whatsoever to implead the husband and father of

the appellant.  We say so as it is beyond an iota of doubt

that the appellant was a destitute, a victim of rape  and

further she was staying in a shelter home.  Calling for a

medical report was justified but to delay it further was

not at all warranted. It needs to be stated that the High

Courts are  required to be more sensitive  while  dealing

with matters of the present nature.

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56. We will be failing in our duty if we do not deal with

the  submission  of  the  learned  counsel  for  the  State.

According  to  her,  State  should  not  be  made  liable

because of the fault of the Court. The principle of  actus

curiae neminem gravabit  basically  means an act of  the

court shall prejudice no man.  Though such a principle

has been advanced yet the same is not applicable to the

facts  of  the  case  at  hand.  In  A.R.  Antulay  v.  R.S.

Nayak14, Sabyasachi Mukharji, J. (as His Lordship then

was),  speaking  for  the  majority  for  the  Constitution

Bench, quoted the following observation of Lord Cairns in

Rodger v. Comptoir D'Escompte de Paris15:

"Now, their Lordships are of opinion, that one of the  first  and highest  duties  of  all  Courts  is  to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely  the act  of  the Primary Court,  or  of  any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."

14  (1988) 2 SCC 602 15  (1871) LR 3 PC 465 : 17 ER 120

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The  aforesaid  principle  despite  its  broad

connotation  is  not  attracted  to  the  obtaining  factual

matrix inasmuch we have granted compensation because

of the delay caused by the authorities of PMCH.  

57. Before  parting  with  the  case,  we  must  note  that

India has ratified the Convention on the Elimination of

All Forms of Discrimination Against Women (CEDAW) in

1993 and is under an international obligation to ensure

that the right of a woman in her reproductive choices is

protected.   Articles 11 of  the said Convention provides

that all State parties shall ensure the right to protection

of health and to safety in working conditions, including

the safeguarding of the function of reproduction.  Article

12 of the Convention stipulates that State parties shall

take all appropriate measures to eliminate discrimination

against  women  in  the  field  of  health  care  in  order  to

ensure,  on  a  basis  of  equality  of  men  and  women,

accesses to health care services, including those related

to family planning.

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58. The  legislative  intention  of  1971  Act  and  the

decision  in  Suchita  Srivastava (supra)  prominently

emphasise on personal autonomy of a pregnant woman

to terminate the pregnancy in terms of Section 3 of the

Act.    Recently,  Parliament  has  passed  the  Mental

Healthcare Act,  2017 which has received the assent of

the President on 7th April, 2017.  The said Act shall come

into force on the date of notification in the official gazette

by the Central Government or on the date of completion

of the period of nine months from 7th April, 2017. We are

referring  to  the  same  only  to  highlight  the  legislative

concern in this regard. It has to be borne in mind that

element  of  time  is  extremely  significant  in  a  case  of

pregnancy  as  every  day  matters  and,  therefore,  the

hospitals  should  be  absolutely  careful  and  treating

physicians should be well advised to conduct themselves

with  accentuated  sensitivity  so  that  the  rights  of  a

woman  is  not  hindered.  The  fundamental  concept

relating  to  bodily  integrity,  personal  autonomy  and

sovereignty  over  her  body  have  to  be  given  requisite

respect  while  taking  the  decision  and  the  concept  of

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consent by a guardian in the case of  major should not be

over emphasized.  

59. In  view  of  the  aforesaid  analysis,  the  appeal  is

allowed  to  the  extent  indicated  above  and  the  order

passed  by  the  High  Court  is  set  aside  except  for  the

direction pertaining to  investigation carried  out  on the

basis of the FIR lodged by the appellant. There shall be

no order as to costs.  

          ...............................................J.       [Dipak Misra]  

..............................................J. [Amitava Roy]

..............................................J.        [A.M. Khanwilkar]  

New Delhi; August 17, 2017.