KUM LATHA K Vs. DIVISIONAL MANAGER

JUDGEMENT

(1.) Learned Government Advocate to accept notice for respondent Nos. 1 and 2. He is permitted to file memo of appearance in four weeks. The petitioners are before this Court assailing the notice dated 01.11.2013 issued by the first respondent, whereby the first respondent has directed the petitioners not to terminate the pregnancy of the first petitioner and failing to comply with the same, action has been proposed against the petitioners.

(2.) The brief facts are that the first petitioner is a minor being born on 01.01.1996. The petitioner Nos. 2 and 3 are the parents of the first petitioner. It is alleged that the first petitioner went missing on 04.06.2013 and a complaint was lodged and a FIR was registered in Crime No. 136/2013. It is further alleged that on investigation it was found that one L. Bhutesh had abducted the first petitioner and had committed the offence under Section 366A of the Indian Penal Code. The matter is proceeding in that regard. Since, the petitioners did not want to extend the agony of the first petitioner in going through the unwanted pregnancy had at the first instance made an application before the JMFC seeking leave for termination of the pregnancy. The application no doubt was dismissed on the ground that it did not have the jurisdiction to pass such orders and such application can only be considered by the Court of Sessions. The petitioners are yet to take a decision in that regard to file an appropriate application in accordance with law.

(3.) However, when this was the position, the first respondent has issued the impugned notice dated 01.11.2013 directing the petitioner not to terminate the pregnancy. In that regard, the reason put forth by the first respondent is that the DNA test to be conducted would be in the interest of the prosecution to prove the case alleged against the accused. Even if that be so, what is necessary to be noticed is that if the petitioners make out a right and comply with the procedures under the Medical Termination of Pregnancy Act, 1971, the petitioners cannot be prevented only on the ground that the unwanted pregnancy is to be gone through by the first petitioner only to aid the proof of the case. Even otherwise, it would be open for the respondent Nos. 1 and 2 to gather such materials and evidence to prove the alleged offence in accordance with law. Even, if under the Act the procedure is followed and the pregnancy is terminated, it would still be open for the first respondent to seek to preserve the foetus for necessary action in that regard. Therefore, the notice as issued would not be sustainable and accordingly the same is quashed. However, the petitioners shall follow the procedure as contemplated under the Act before taking any steps for termination of the pregnancy. If in the event of the certification being made by the Doctors enabling the termination of pregnancy, the petitioner Nos. 2 and 3 shall intimate the first respondent and any termination procedure to be carried out by the Doctors would be on information to the first respondent or such other authorized Police Officer, who may request for preserving the foetus and the Doctor shall oblige the first respondent in that regard.