MANU/TN/2236/2016

Equivalent Citation: 2017(2)C rimes116(Mad.), 2016(6)C TC 90, 2016-5-LW195, (2016)8MLJ418, 2017(1)RC R(C riminal)636

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

W.P.(MD) No. 12212 of 2016
Decided On: 19.09.2016
Appellants: Marimuthu
Vs.
Respondent: The Inspector of Police, Ayakudi Police Station and Ors.
Hon'ble Judges/Coram:
Dr. S. Vimala, J.
Counsels:
For Appellant/Petitioner/Plaintiff: N. Adithyavijayalayan for D. Venkatesh
For Respondents/Defendant: D. Muruganandam, Addl. Govt. Pleader
ORDER
Dr. S. Vimala, J.
1 . Whether the father/guardian of the minor pregnant daughter can get the fetus 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

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 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 fetus 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 the continuance of the pregnancy would cause
a risk of injury to the health of the girl, as the pregnancy is on account of rape
committed on her. Such unwanted pregnancy would constitute a grave injury to the

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 mental health of the daughter and therefore, it should be ordered to be aborted.
6 . But the contention of the minor daughter is that the pregnancy was not out of
coercion, but out of voluntary sexual intercourse between her and the 5th respondent
and she has the total and complete pleasure in carrying the fetus and therefore, there
should be no order for abortion.
7. In order to appreciate the contentions raised, it is necessary to look into Section
3(2) of the Medical Termination of Pregnancy Act. Before deciding this issue, it is
equally important to find out whether the petitioner's daughter was a minor on the
date of alleged rape and whether the consent of the petitioner's daughter is
mandatory before ordering termination of pregnancy at the request of the father.
"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 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 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 of 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 lunatic, shall
be terminated except with the consent in writing of her guardian. (b) Save as
otherwise provided in C1. (a), no pregnancy shall be terminated except with
the consent of the pregnant woman."
8 . The issue regarding necessity/importance of consent of the minor girl has to be

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 considered in the light of rights made available to children under the International
Conventions and the Indian Law.
9 . The United Nations Convention on the Rights of the Child (UNCRC) providing for
the rights of children cover all civil, political, social, economic and cultural rights of
every child.
a) Right to Survival: A child's right to survival begins before a child is born.
According to Government of India, a child life begins after twenty weeks of
conception. Hence the right to survival is inclusive of the child rights to be
born, right to minimum standards of food, shelter and clothing, and the right
to live with dignity.
b) Right to Protection: A child has the right to be protected from neglect,
exploitation and abuse at home, and elsewhere.
c) Right to Participation: A child has a right to participate in any decision
making that involves him/her directly or indirectly. There are varying degrees
of participation as per the age and maturity of the child.
d) Right to Development: Children have the right to all forms of
development: Emotional, Mental and Physical. Emotional development is
fulfilled by proper care and love of a support system, mental development
through education and learning and physical development through recreation,
play and nutrition.
10. Before deciding the issue regarding the consent of the pregnant girl, whether she
was a minor or major on the date of the alleged occurrence and as on date of
production before this Court are material issues to be considered.
Minority/Majority:
11. During the course of enquiry, this Court directed the parents to produce the Birth
Certificate of the so called victim girl and it was produced. From the Birth Certificate,
it is evident that the date of birth of victim girl is found as 14.05.1998. The date of
her missing was 13.02.2016. The date on which the victim girl was secured was
13.04.2016. On 15.04.2016, a report by the Doctor has been given stating that the
victim girl was pregnant by 14 weeks. Therefore, the occurrence of sexual intercourse
ought to have happened around January, 2016. Therefore, at the time of occurrence,
she might have been approximately aged 17 years 8 months, but on the date of
production before this Court, her age was above 18 years.
11.1. The date of birth of alleged juvenile in conflict with law is 08.08.1998 as found
in the Transfer Certificate. On the date of complaint of missing, he was aged about 17
years 6 months.
11.2. Therefore, on the date of occurrence, both of them were minors and on the
date of production before this Court, both of them were above 18 years of age.
12. Now the next question is, when the victim girl was minor at the time of incident,
and when the victim girl was a major on the date of production before this Court,
when she was pregnant, whether consent of the victim girl is essential in deciding the
issue regarding termination of her pregnancy.
13. Obviously, the victim girl was not in a position to express herself completely and

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 freely, as she was depending upon her parents at this crucial stage of pregnancy as
well as in need of moral support. Therefore, she was not in a position to engage a
counsel for herself, though she had a different opinion with regard to retention of her
pregnancy. Therefore, this Court thought of getting assistance to the Court by
appointing an Amicus Curiae. Accordingly, Mr. K.P.S. Palanivel Rajan was appointed
as Amicus Curiae.
14. Learned counsel for the petitioner invited the attention of this Court to Section
4(a)(b) of the Medical Termination of Pregnancy Act, 1971 under which it is stated
that save as otherwise provided in Clause (a) [reference is to Clause 4(a)], no
pregnancy shall be terminated except with the consent of the pregnant woman.
Section 4(a)(b) is already extracted supra.
15. Under the Indian Penal Code, termination of pregnancy is an offence. To save the
registered medical practitioners from the penal offences, Section 3 of Medical
Termination of Pregnancy Act, 1971 provides for exceptions under which termination
is not an offence. In other words, Section 3 of the Medical Termination of Pregnancy
Act, 1971 is an enabling provision/saving provision to save the registered medical
practitioner from the purview of the Indian Penal Code. Termination of pregnancy
under the provisions of the Act is not the rule, but it is only an exception. Under
Section 3(2), there can be no termination of pregnancy, if the length of pregnancy
had exceeded 20 weeks. Only exception is found in Section 5 under which pregnancy
can be terminated to save the life of the pregnant woman, if the opinion of the
medical practitioner is formed in good faith.
16. The entire scheme of the Act show that the provisions are intended to save the
pregnant woman. So far as the medical practitioners are concerned, if they find that
the pregnant woman happens to be a minor, they must take care to get the consent
of the guardian in writing. Whether consent of the minor can be dispensed with, if
she is found to be below 18 years of age is the issue under challenge. In other
words, whether Sub-Section 4(a) can be understood as dispensing with the consent
of the pregnant woman if she is below 18 years of age, is the crucial issue for
consideration.
1 7 . At the time of conception, no doubt, the petitioner's daughter was below 18
years of age, but she had attained 18 at the time of hearing by this Court. This is a
case where, not even a forced pregnancy or unwanted pregnancy is alleged by the
victim girl.
18. It is not the case of the victim that the pregnancy would give her the feeling of
the bearing the violence or aggravating her mental trauma. The victim girl seems to
be mature enough to understand the implication of the pregnancy. Under such
circumstances, whether choice of motherhood can be deprived to her, especially
when her answers to the Court (in front of the parents of both parties and the
respective counsels) gave satisfaction to the Court that the decision taken by her to
retain the pregnancy had been taken on account of informed decision knowing fully
well about the implication of the pregnancy.
19. In English Law, the opinion of the parents or natural guardians in the matter of
abortion is irrelevant and if the minor girl is capable of understanding the
implication, her opinion is quite relevant and important.
19.1. The American Law takes into account the rights of the minor vis-Ã -vis. the
maturity level. In Denforth's case (49 L.Ed. 2d 788), it was held (1) that mature

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 minors have a right to make their own decisions about abortion without parental
involvement; (2) that mature and immature minors must, as a matter of
constitutional law, have the opportunity, through an alternative judicial or
administrative procedure, to obtain an abortion without parental consent or
consultation; and (3) that with respect to immature minors, the sole test must be
their own best interests.
20. The provision under Section 4(a)(b) should be interpreted having regard to the
objective of the Medical Termination of Pregnancy Act and having regard to the
scheme of that, it can never be interpreted as dispensing with the consent of the
minor in case the minor wants to retain the pregnancy.
21. This Court was conscious of the urgency involved in passing orders when the
issue was with regard to termination of pregnancy. But, startling facts were presented
to the Court one after the other. Only during enquiry, this Court decided to spend
some time for enquiry, especially in the medical report itself, it had been mentioned
that the victim girl was not willing to have the pregnancy terminated and this Court
decided to go by that report. At the end of the enquiry, the person responsible for
pregnancy submitted that he had already married the victim girl and produced the
photograph in support of the same. In fact, a memo has been filed on behalf of R5,
submitting that he had married the victim girl on 14.02.2016 in Thiruavinankudi
Murugan Temple at Palani. On hearing this statement made on 22.07.2016, both
parties on both sides agreed that the fetus need not be aborted.
22. On account of twist and turns, this Court was driven to decide the next issue
regarding the validity of marriage in terms of the provisions of The Prohibition of
Child Marriage Act, 2006. Under the provisions of the said Act, the marriage is a void
marriage, only if the circumstances prescribed under Sections 12(a) to (c) exist. It is
the case of the victim girl that such circumstances were not available in her case.
Section 12 is extracted for convenient reference:
"12. Marriage of a minor child to be void in certain circumstances - Where a
child, being a minor-
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go
from any place; or
(c) is sold for the purpose of marriage; and made to go through a
form of marriage or if the minor is married after which the minor is
sold or trafficked or used for immoral purposes, such marriage shall
be null and void."
23. When the marriage itself is not shown to be a void marriage, then the request of
the father to terminate the pregnancy of the daughter without the
consent/concurrence of the daughter cannot be permitted.
24. Under such circumstances, the permission sought for by the father to terminate
the pregnancy of his daughter is declined. Hence, the petition deserves to be
dismissed.
25. Though it was not difficult to take a decision even at the initial stage, because of
the fact that the daughter of the petitioner did not want to get her pregnancy

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 terminated, still, it presented a lot of difficulties having regard to the issue raised
regarding constitutional validity of certain sections of POCSO Act.
26. Originally, the age of consent with regard to forcible sexual intercourse was 16
under Section 375 of the Indian Penal Code, which was later raised to 18. Under the
POCSO Act, the consent of victim is immaterial up-till her age of 18. Apprehension
was expressed that many parents, who do not accept marriage of their daughter are
likely to prefer false cases against the partner of the girl. The study by the National
Law School, Bangalore was brought to the notice of the Court and it is appropriate to
extract important observations in the report.
"The study by the National Law School, Bangalore, has shown that in 10
percent of the cases filed under the Protection of Children from Sexual
Offences Act, the accused was in a relationship with the victim. In another 19
percent, the two said they were already married.
In a significant number of cases, we found that the girl had left her house
and gone away with her boyfriend, after which the (girl's) parents turned to
the law. The tragedy of Pocso is that under the guise of protecting children,
minors are being dragged into the criminal justice system and the resulting
trauma, "said Swagata Raha, one of the authors of the study."
27. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), defines
a 'child' to mean 'any person below the age of eighteen years' and raised the age of
consent from 16 years under the Indian Penal Code (IPC) to 18 years. The Act
adopted a protectionist approach under the assumption that a uniform age of consent
would be in accordance with the UN Convention on the Rights of the Child, 1989.
28. In the UK, the age of consent is 16 years. In the US, it varies from 16 to 18
across states. It is 14 years in Germany and Italy, and 15 in France.
29. The National Law School team examined judgments, court proceedings and also
spoke to the lawyers and the victims. In absolute numbers, 555 cases ended in
acquittals and only 112 led to convictions.
29.1. The National Commission for Protection of Child Rights had in 2010 proposed
that any consensual sexual act should not be an offence when it involves two persons
who are both above 14 and are either of the same age or the age difference is not
more than three years.
30. In Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional
Development MANU/SACC/0029/2013 : [2013] ZACC 35, the Constitutional Court of
South Africa confirmed that provisions of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007, which criminalised consensual sexual
conduct of adolescents above 12 years and below 16 years, were unconstitutional.
The imposition of criminal liability on adolescents engaging in consensual sexual
conduct was opposed to the right to dignity, right to privacy, and contrary to the
best-interests principle. It observed that the provisions '... criminalise a wide range
of consensual sexual conduct between children: the categories of prohibited activity
are so broad that they include much of what constitutes activity undertaken in the
course of adolescents' normal development....the existence of a statutory provision
that punishes forms of sexual expression that are developmentally normal degrades
and inflicts a state of disgrace on adolescents.'

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 Child marriage prohibition:
3 1 . The Prohibition of Child Marriage Act, 2006 (PCM Act) seeks to prohibit the
solemnization of marriages of girl below the age of 18 years and boys below the age
of 21 years. The Act prescribes penalties for the solemnization, promotion, and
allowing of child marriages. A male above 18 years of age can be punished under the
Act for contracting a marriage with a girl under 18 years. The Act is, however, silent
on sexual relations in a child marriage. It extends legitimacy to children born of child
marriages thus indirectly acknowledging sexual intercourse within a child marriage.
Under the Indian Penal Code, 1860 (IPC), sexual intercourse by a man with his wife
above 15 years of age, is an exception to rape. The Criminal Law Amendment Act,
2013 raised the age of consent to 18 years but did not disturb this exception. As a
result, sexual intercourse with a wife above 15 years of age and below 18 years of
age will not amount to rape under the IPC.
3 2 . Even though legitimacy is attached to children born of child marriages, the
Complications and dangers of teenage Pregnancy/Negative impact of child
marriage/unintended/unplanned/unwanted/unwarranted pregnancies caused on
account of sexual relationship, cannot be ignored:
33. The teenage pregnancy has a serious impact not only on the pregnant woman,
but also on parents and the effect is very grave and long-lasting. The medical,
psychological, economical and social impact of early child bearing are significant
especially when the pregnant woman remains unmarried. Early child bearing harms
the health of both the mother as well as the child. It goes to the extent of causing
maternal mortality. It is reported that teenage deliveries are complicated by
obstructed labour and other problem. The children born of such pregnancy suffer low
weight, low educational facilities, abandonment, caught in a cycle of poverty and
thereby loosing development, upliftment and social recognition.
34. Therefore, it is time that child marriage should be prohibited, but the question is
what should happen to the marriage which is already performed due to lack of
awareness?
35. Learned counsel appearing as Amicus Curiae to assist the Court pointed out that
the attention of the Standing Committee was invited on the aspect of consent and the
Committee expressly rejected the suggestion on the following reasoning:
"6.9. The Committee has also a word of caution. By having the element of
consent, the focus would be on the victim which would invariably lead to
revictimisation of the victim in the hands of the justice delivery process and
would be especially problematic when dealing with children. The Committee
would like to point out that a great deal of jurisprudence supports the theory
that law should move away from this classical approach of trials in such
cases and focus on the conduct of the accused and the circumstances
surrounding the offence rather than the conduct of the victim thereby
obviating the necessity of lengthy cross-examination of the victim on the
issue of consent."
36. This Court, in the case of T. Sivakumar vs. Inspector of Police, Thiruvallur Town
Police Station, Thiruvallur District and Others, reported in (2011) 4 ML J (Crl) 315,
gave a finding that until a female child of child marriage elects to accept the marriage
on attaining the age of 18 years, her custody cannot be entrusted to the male party to
the marriage. There is also a finding that the minor girl, who entered into the

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 marriage, which is prohibited under Section 3 of the Prohibition of Child Marriage Act
is not an offender.
3 7 . The problems associated with teenage is manifold, which is in the form of
teenage love, teenage marriage, teenage suicide and teenage murder all on account
of so called teenage romance. When the teenage boys and girls have the barrier to
discuss it with their family members, it is appropriate that there should be a team of
experts consisting of Doctors/Lawyers/Psychologists/Psychiatrists/Welfare
Experts/Welfare Counselors, who would be in a position to confidentially guide them
and counsel them. This body is the need of the hour in every school and college. This
Court endorse the view expressed by the District Judge of Delhi by name Dharmesh
Sharma, who made a clarion call for creating public awareness about the impact of
girl or boy marrying at a tender age or indulging in unsafe sexual activities.
38. Learned counsel appearing for the Government has also highlighted the efforts
taken by the Government to create awareness regarding the evils arising on account
of child marriages.
39. The right to autonomy to the woman and to decide what to do with their own
bodies, including whether or not to get pregnant, and if pregnant whether to retain
the pregnancy and to delivery the child, i.e. the right to motherhood is towards their
empowerment and it is in accordance with the International Covenant on Human
Rights. Considering the right to life, which includes the right to beget a life and the
right to dignity, the right to autonomy and bodily integrity, the fetus cannot be
ordered to be aborted against the wishes of the victim girl.
40. Whether the fetus carried is a pain or pleasure is the subjective opinion of the
minor girl and the girl has formed an opinion that it is the total delight, when India
has ratified the conventions on the rights of the Child and when the consent of the
victim girl cannot be dispensed with while aborting pregnancy, this Court has no
option except to decline permission to terminate pregnancy, leaving it open the
question, who is to bear the cross?
41. In the result, this Writ Petition is dismissed. No costs.
42. These contradictions/controversies/conflict, which touch upon the constitutional
validity of POCSO Act cannot be decided by this Court sitting single, as the matter
involves constitutional validity or to be decided by the Division Bench as ordered by
the Hon'ble Chief Justice of this Court. If deemed appropriate, the Hon'ble Chief
Justice would consider posting this matter before the Division Bench for deciding the
constitutional validity of POCSO Act.
43. This Court places on record its appreciation to Mr. D. Muruganandam, learned
Additional Government Pleader appearing for the respondents 1 to 3, Mr. K.P.S.
Palanivel Rajan, learned counsel appearing as Amicus Curiae, Mr. N.
Adithyavijayalayan learned counsel for Mr. D. Venkatesh, learned counsel for the
petitioner and Mr. C. Bethana Samy, learned counsel appearing for R5 for having
rendered their valuable assistance in arriving at the truth and also in disposing of this
case.
44. Fee of Rs. 10,000/- (Rupees Ten Thousand only) payable to the learned Amicus
Curiae shall be paid by the Legal Services Authority attached to this Court within a
period of two weeks from the date of receipt of a copy of this order.

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