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MP High Court Mandates Swift Disclosure of Termination Details in Rape Victim’s Case

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Case Title: Shri Lucky Bijolia (Representing Advocate) Vs. The State of Madhya Pradesh Principal Secretary Department of Public Health and Family Welfare & Ors.

Case No.: WRIT PETITION No. 9585 of 2024

Dated on: 30th APRIL, 2024

Coram: HON’BLE SHRI JUSTICE SUBODH ABHYANKAR

Facts:

In this case, a writ petition was filed under Article 226 of the Constitution of India by the petitioner, who is the father of a rape victim, seeking medical termination of his daughter’s pregnancy. The victim, a minor, was abducted on January 28, 2024, and recovered on March 1, 2024. On the same day of her recovery, her Medical Legal Case (MLC) was conducted, revealing her pregnancy. However, the petition seeking termination of her pregnancy was filed on April 8, 2024, more than a month after the pregnancy was detected. The court noted that neither the treating doctor nor the police officer informed the petitioner or the victim’s relatives about the pregnancy and the possibility of termination under the law. The victim’s pregnancy was terminated on April 17, 2024, following court directions. Further, the court criticized the apathetic conduct of the investigating officer and the treating doctor for failing to inform the victim’s family about her right to terminate the pregnancy, which it deemed as a violation of her right under Article 21 of the Constitution of India.

Legal Provisions:

  • Medical Termination of Pregnancy Act, 1971: This Act empowers registered medical practitioners to terminate specific pregnancies and addresses related matters or incidental issues.
  • Article 226 of the Constitution of India: It grants the HCs the power to issue writs, orders, or directions for the enforcement of fundamental rights or for any other purpose within their respective jurisdictions.
  • Article 21 of the Constitution of India: It guarantees the right to life and personal liberty.

Contentions of the Appellant:

The contentions of the appellant, primarily revolved around seeking medical termination of his daughter’s pregnancy, who is the victim of rape. The appellant argued that the victim, being a minor, should have been informed about her right to terminate the pregnancy under the law. They emphasized that despite the victim being abducted and subsequently recovered, there was a significant delay in filing the petition seeking termination of pregnancy, which they attributed to a lack of awareness about legal provisions regarding termination of pregnancy resulting from rape. Moreover, the appellant sought to highlight the responsibility of the investigating officer and the treating doctor in informing the victim’s family about their rights in such cases, arguing that their failure to do so infringed upon the victim’s right to live with dignity as guaranteed by Article 21 of the Constitution of India.

Contentions of the Respondents:

The respondents, contended that they informed the court that the petitioner’s daughter’s pregnancy had already been terminated on April 17, 2024, in compliance with the court’s previous directive issued on April 12, 2024. Further, they contended that during the victim’s MLC examination, the victim’s mother was present and consented to the examination, during which the victim was informed of her pregnancy. However, they acknowledged that the affidavit of the treating doctor was not filed as the doctor had been transferred, but they did not deny that neither the victim’s parents nor the victim herself were orally informed about the pregnancy and its termination options. Moreover, they provided documentation showing that the investigating officer had informed the petitioner about the victim’s pregnancy on March 4, 2024, during an ultrasound examination, but the officer’s memorandum indicated only the pregnancy status without any advice on termination.

Court’s Analysis and Judgement:

Upon its critical analysis, the Hon’ble Court issued directions and mandated that in all cases of rape where the victim is found to be pregnant, she or her parents must be immediately advised by the police officer and treating doctor about her right to terminate the pregnancy under the Medical Termination of Pregnancy Act, 1971. Failure to comply with these directions would be treated as contempt of court. Moreover, the court ordered that the information provided to the victim and her family members must be documented in writing by the investigating officer and treating doctor. Furthermore, the court directed the dissemination of this order to all police stations in Madhya Pradesh and government hospitals. With these directives, the court disposed of the petition.

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Date of Birth Not Grounds for Disqualification in IBPS Exam Application: Calcutta High court

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Case title: Reshmi Bhagat VS State of West Bengal and others

Case no.: WRIT PETITION No. 5442 of 2024

Dated on: 27th March 2024

Quorum:  Hon’ble. MR Justice Sabyasachi Bhattacharyya

 

FACTS OF THE CASE

The petitioner, a young lady, hailing from interior parts of Jalpaiguri, where internet connectivity is poor according to the petitioner, applied for taking the examinations for the post of Probationary Officers/Management Trainees for banks. The respondent no. 2, that is, the Institute of Banking Personnel Selection (IBPS) was the common online platform conducting the said examinations. The petitioner submits that the petitioner submitted her credentials and duly filled up the requisite application form and submitted the same online for taking part in such examinations through a cybercafé with the help of her father. even after the petitioner passed the prelims and mains, when the petitioner’s turn came to be interviewed, certain discrepancies regarding her date of birth between the various documents submitted by her was apparently detected. According to the petitioner, the concerned banks left the decision as to whether to permit the petitioner to the respondent no. 2, which was in charge of conducting the examinations. Either way, since the age of the candidate was to be between 20 and 30 years at the relevant point of time, the petitioner fully qualified the said age criterion, whichever may be the date of birth taken for the petitioner. The petitioner, thus, challenges the decision of the respondents from letting her sit for the interview on the basis of such discrepancy.

ISSUES

  • Whether the discrepancy in the petitioner’s date of birth, as reflected in different documents, can disqualify her from participating in the interview process for the banking examinations.
  • Whether the eligibility criteria, specifically the date of birth mentioned in the online application, should be considered final and unmodifiable after submission.
  • Whether the petitioner’s limited access to internet facilities, given her background from an interior part of Jalpaiguri, should be taken into account in the scrutiny of her application.

LEGAL PROVISIONS

Article 14 of the Constitution of India: This guarantees equality before the law and equal protection of the laws within the territory of India. The petitioner argues that the discrepancy in her date of birth should not disqualify her as it does not give her any undue advantage and thus should not be treated differently from others who might have similar minor errors.

Article 21 of the Constitution of India: This article extends to the right to livelihood, meaning that arbitrary actions that could deprive someone of their means of livelihood, such as disqualifying a candidate on trivial grounds, may violate Article 21.

CONTENTIONS OF THE APPELLANT

Counsel for appellant is argued that whereas the Aadhaar Card of the petitioner and her PAN Card, in consonance with her declaration in the application, showed her date of birth to be March 30, 2000, the birth certificate of the petitioner and, consequentially, her Indian School Certificate admit card depicted her date of birth as April 23, 2000. Learned counsel for the petitioner cites a judgment of the Supreme Court in the matter of Vashist Narayan Kumar Vs. The State of Bihar and Ors. reported at (2024) 1 S.C.R. 1 for the proposition that if the person concerned gains no undue advantage and the mistake does not constitute wilful misrepresentation or fraud, considering the gravity of the lapse, the candidature can be permitted. Trivial omissions and errors, it is contended, cannot come in the way.

CONTENTIONS OF THE RESPONDENTS

Learned counsel appearing for the respondent IBPS argues that if the petitioner was armed with all the said documents, there was no conceivable reason why the petitioner disclosed her date of birth to be March 30, 2000, which is in contradistinction with her birth certificate and her ISC Admit Card. The rules are clear, it is submitted, to the effect that the eligibility criteria are to be satisfied by the concerned candidate by submission of due documents. It is further pointed out that as per the eligibility criteria, all particulars mentioned in the online application, inter alia including the date of birth of the candidate, will be considered as final and no challenge/modification will be allowed after submission of the online application form. Thus, it is contended that the petitioner loses out on the eligibility criteria itself and as such was rightly not considered for the interview.

COURT’S ANALYSIS AND JUDGEMENT

The judgment cited by the petitioner is apt in the circumstances of the present case. The Supreme Court, in no uncertain terms, observed that after a candidate has participated in the selection process and cleared all the stages successfully, his candidature can only be cancelled after careful scrutiny of the gravity of the lapse and not for trivial omissions or errors. In the present case, the petitioner hails from the interior parts of the State where even proper internet facilities are not available. One can very well appreciate the impediments and handicaps under which such a person has uploaded the online application and furnished due details and credentials, which was done through a cybercafé, since the petitioner did not have the means to do the uploading from her own data pack. That apart, the object of such examinations for the banking sector and other public services is not to restrict the participation but to ensure that the participation reaches every nook and corner of the country, to the places which are not so advantaged as large townships or cities. It is not the case of the petitioner merely that she wants to have a modification of her online application. The petitioner places her case on a wider footing inasmuch as either of the dates of birth, if taken to be correct, would make the petitioner eligible as per the eligibility criterion regarding age. The object of a public examination cannot by any means be construed to be so restrictive as to be cruel on the candidates, particularly for brilliant people like the petitioner, who has already cleared the preliminary and mains in the tough banking examination concerned. The endeavor of the authorities ought to be encourage such people and not to shut them out on trivial issues. I do not find from the records that the petitioner could derive any undue advantage or, for that matter, any advantage whatsoever from the discrepancy in her date of birth, as either way, the petitioner would qualify on the eligibility criterion in respect of age. There does not arise any question, thus, of any willful misrepresentation on her part. The petitioner was permitted to take the prelims and mains and already crossed those hurdles and as such made herself eligible with flying colors to have an opportunity to participate in the interviews. Accordingly, the petitioner in the present case comes within the window as provided by the judgment of the Supreme Court, there being no gross anomaly or mala fides in the discrepancies relating to her date of birth. As such, for the purpose of the concerned banking examinations for the post of Probationary Officers/Management Trainees, the petitioner is held to be fully qualified, since the documents submitted by her indicate that she is eligible in terms of age for participating in the said examinations. Since, the published timelines leave it open to the concerned banks to extend the date of interview till the end of this month, it is expected that the petitioner shall be permitted to have an interview with the concerned banks for the purpose of considering her candidature for the concerned posts. Accordingly, WPA No. 5442 of 2024 is allowed on contest, thereby directing the respondent no. 2-IBPS to immediately intimate the concerned banks that the petitioner is fully eligible for participation in the interviews for the examinations being held for the post of Probationary Officers/Management Trainees in banks. Accordingly, the respondent no. 2-IBPS shall publish the name of the petitioner in the provisional allotment list within 24 hours. Hence petition is allowed contest, thereby directing the respondent no. 2-IBPS to immediately intimate the concerned banks that the petitioner is fully eligible for participation in the interviews for the examinations being held for the post of Probationary Officers/Management Trainees in banks There will be no order as to costs.

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Police complaint not a prerequisite for providing medical care at Hospitals to a Pregnant minor : Bombay HC

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Case title: XYZ v. State of Maharashtra & Ors.

Case no.: Writ Petition (L.) No. 12243 Of 2024

Order on: 10th April 2024

Coram: Justice G. S. Kulkarni & Justice Firdosh P. Pooniwalla

FACTS OF THE CASE

The petitioner, filed a writ petition under Article 226 of the Constitution to safeguard the legal rights and health interests of her 17-year-old daughter, who was approximately seven months pregnant. The daughter, along with her partner (also a minor), asserted that their relationship was consensual and declined to disclose further details.

The petitioner encountered obstacles when attempting to secure medical treatment for her daughter, as healthcare facilities demanded a police complaint, which neither the petitioner nor her daughter intended to file.

CONTENTIONS OF THE PETITIONER

Petitioner’s Counsel advocated for medical treatment without the need for a police complaint. Proposed treatment at Sir J.J. Group of Hospitals and admission to St. Catherine’s Home for the daughter.

CONTENTIONS OF THE RESPONDENTS

State’s Counsel acknowledged the availability of medical treatment at Sir J.J. Group of Hospitals but required an Emergency Police Report (EPR) from the petitioner as a formality.

LEGAL PROVISIONS

Article 21 of the Constitution guarantees a fundamental right to the petitioner’s daughter, to be provided medical treatment, which in no case can be denied to her.

ISSUE –

  • Whether medical treatment can be provided without insistence on a police complaint?
  • Is the petitioner’s daughter entitled to medical aid under Article 21 of the Constitution?

COURT’S ANALYSIS AND JUDGEMENT

The court found merit in the petitioner’s argument that denial of medical treatment due to the absence of a police complaint violated the daughter’s fundamental right under Article 21. Despite consensual relations, medical aid cannot be withheld. The court emphasized that medical aid is intrinsic to the right to life and must be accessible to all, irrespective of legal proceedings. Consequently, the court directed:

  • Submission of an EPR by the petitioner for record purposes.
  • Provision of medical treatment at Sir J.J. Group of Hospitals under anonymity.
  • Admission of the daughter to St. Catherine’s Home with confidentiality.
  • Open consideration of adoption for the child.

In conclusion, the court’s judgment prioritized the daughter’s health and well-being while respecting her autonomy and confidentiality.

This case sets a significant precedent reaffirming the fundamental right to medical treatment under Article 21, even in sensitive circumstances.

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Judgement Reviewed by – Chiraag K A

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Child marriages in India: Developments in the view of the judiciary and legislations

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Introduction:

A recent study found that one in five girls and nearly one in six boys are married below the legal age of marriage. The study also found that there has been a significant drop in the statistics of child marriages in India from 1993 to 2023. In 1993, the number of girls being involved in child marriages was 49.4% which is now 22.3% and the boys from 7.1% in 2006 and 2.2% in 2021[1].

In India, the current legislation providing for child marriage is The Prohibition of Child Marriages Act, 2006 which states that the legal age for marriage is 18 for women and 21 for men.

The Prohibition of Child Marriages Act, 2006:

The PCMA was an amendment to the Child Marriage Restraint Act, of 1929. In the Act of 1929, the legal age of marriage was 15 for girls and 18 for men. The Act was amended in 1978 to change the legal age for marriage to 18 and 21 to women and men respectively.

The major problem with the 1978 Act was its enforcement. Although it was punitive, it did not create any space for people to complain or capture child marriages on time. A child marriage after solemnised was considered valid and not void or voidable. The only preventive measure that was created was to order a court injunction to stop child marriage before solemnisation[2].

The current legislation provides that:

  • Child marriages are voidable as per Section 3 of the Act at the option of either party. They provided that the man or woman before filing the petition should not have attained 20 years of age.
  • Female children in child marriages are entitled to maintenance by authorizing the district court to pass an order for maintenance or residence. The maintenance should be either paid by the guardian of the groom or himself if he attains the age of 18. The maintenance should be paid during the decree of annulment of marriage, as per Section 4 of the Act.
  • If child marriage is conducted out of immoral practices such as selling the bride or enticing to keep the child away from legal guardians, or marriage through coercion would be considered void as per Section 12 of the Act.
  • The solemnization, promotion and permitting of child marriage is a penal offence unless there’s reasonable proof that the marriage was not child marriage. However, no woman shall be punished. Section 9 provides that if a man above the age of 18 marries someone underage, he would face rigorous imprisonment of 2 years or a fine. The nature of the punishments is non-bailable and cognizable.

Enforcement:

In the matters of child marriages, the question arises of whether the customary law supersedes the Act. The absence of a uniform civil code allows differential treatment of children resulting in discrimination. Some victims of child marriage are thus entitled to better legal protection under the national law while others may remain out of this protective net[3].

The Hindu Marriage Act, of 1955 stipulates that both parties must be of legal age to consent. A marriage in which consent is acquired by coercion is void and subject to nullity decrees.  Both the bride and the groom must provide their verbal and written agreement to the marriage by Islamic law. According to the Indian Christian Marriage Act of 1872, parental consent is required before marriage if one of the parties to the marriage is a minor. If the father is still alive, the consent of the guardian of the minor, or the mother’s consent in the absence of a guardian, is required[4].

The problem that arises in implementation is that only the parties in the marriage can declare the child marriage voidable, which rarely happens. It should be such that all child marriages are void ab initio. The result of such is that the deterrence purpose of the Act is not justified and becomes purposeless. The officers that are appointed through the provisions of the Act are usually the District magistrates, who on the other hand have so many other responsibilities on their own.

Case laws:

On the protection of the dignity of women, the Supreme Court in the case of  Independent Thought v Union of India[5], a landmark judgement, held that any act of sexual intercourse during child marriage would be considered rape under Section 375 of IPC.

The court in furtherance, held that the Prohibition of Child Marriage Act applies to all and the act will prevail over the Hindu Marriage Act and the Muslim Marriages and Divorce Act.

The apex court in the case of Hardev Singh v Harpreet Kaur[6] held that if at the time of marriage if the bride is above the majority, then no punishment would apply to men marrying if he is 18-21 years old.

The court stated that “male adult above eighteen years of age, contracts a child marriage” to mean “male adult above eighteen years of age marries a child”. Further, it held that there is no requirement for consent if both parties are above the legal age.

In the conflicting case of Shalini @ Janvi V State of Uttar Pradesh[7], the bride’s father was trying to sell her and her grandmother had threatened to kill her. At that time, she was 16 years old and she married a man of her own will. She testified to the court that she married the man wilfully.

The court held that the marriage is not void under PCMA as she wilfully married the guy and she was neither abducted or kidnapped. It stated that :

“She hails from a disturbed and broken family. It is under such circumstances; she got married to Anil and wants to live with him as his wife. She has neither been kidnapped nor abducted. In such circumstances, it would be against the interests of substantial justice to rule that petitioner No.1 had been kidnapped or abducted by accused Anil/petitioner No.2”

The primary issue of most cases is whether the consent of a minor child is significant. The court in the case of “Ranjeet Singh vs State of Punjab and Ors” analysed the facts as the bride ran away from home and married a man of her own volition. The high court held that the consent of a minor in a case of child marriage is insignificant. However, she refused to go back to her parent’s house. Therefore the court directed to stay at her husband’s house but if she wishes to go back to her parent’s house, such should be allowed until she attains a majority.

The pattern of prosecuting men for child marriages solely rely on the testimonies given by the brides. It will be challenging to take back the allegation and then try to reach a compromise if she is accused of sexual assault. As a result, the girl’s evidence and oral declarations are crucial in situations when her parents can pressure her to make up a case against her husband. Consent should be taken into account as a mitigating element in situations involving allegations of statutory rape, and the judiciary should have more opportunities to clear young men who have eloped with adolescents who are near to reaching adulthood on their own free will.

The Prohibition Of Child Marriage (Amendment) Bill, 2021 :

The bill was passed in the Lok Sabha in December 2021. The key highlights are:

  • The bill amends the Act in the provisions of legal age. The minimum age of marriage for both men and women is said to be 21.
  • The bill also ensures that upon enforcement, it will override any other law, custom and practice.
  • For annulment of marriages, the parties are entitled to file an application for 5 years (23 years) of attaining majority as opposed to 2 years[8].

 

The conflict that comes to light is the fundamental right to marry after attaining majority. The Indian Majority Act stipulates that a person attaining the age of 18 is a major. There is no clear rule on which of the two Acts should be followed in the instances of marriage. The Supreme Court has held that the right to marry is a fundamental right under Article 21 of the Constitution[9]. In another case, it was held that when two adults consensually choose each other as life partners, it is a manifestation of their choice, which is recognised under Articles 19 and 21 of the Constitution[10].   If this Bill were passed, it would be legal to have sexual relations but illegal to marry for those between the ages of 18 and 21 years as consensual intercourse is not prohibited by law.

Conclusion:

There is a slow decrease in the number of child marriages day to day but the evil still exists. The conflict of the age of majority should be addressed by the lawmakers. If for example, marriage under muslim law is a contract and the legal age to enter into a contract is 18. But if the Act stipulates 21 as the age of marriage, the provisions of law contradict each other.

The implementation of the PCMA is still something that should be worked upon. Most people do not recognize child marriage as an offence and aren’t aware enough to oppose it. Unless the contracting parties contend it, the marriage is valid as per the Act. It is highly important to understand the health and overall implications child marriage has on the young population. Child marriages should be prohibited irrespective of customary practices.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Sanjana Ravichandran

[1] Anuradha Mascarenhas, One in 5 girls in India still married below legal age, finds new study, INDIANEXPRESS (Dec 17,2023) https://indianexpress.com/article/cities/pune/one-5-girls-india-married-legal-age-find-new-study-9070841/ .

[2] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf

[3] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf

[4] Enakshi Ganguly Thukral and Bharti Ali, Child Marriage in India: Achievements, Gaps and Challenges, OHCHR, https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WRGS/ForcedMarriage/NGO/HAQCentreForChildRights1.pdf

[5] 2017 SCC 10 800

[6] AIR 2020 SC 37

[7] 2019 SCC ONLINE ALL 4310

[8] The Prohibition of Child Marriage (Amendment) Bill, 2021, PRSINDIA (https://prsindia.org/billtrack/the-prohibition-of-child-marriage-amendment-bill-2021)

[9]  Shafin Jahan vs Ashokan and Others, (2018) 16 SCC 368

[10]  Shakti Vahini vs Union of India and Others, (2018) 7 SCC 192

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Article 21 Of The Constitution Of India Provides Inherent Right To Every Individual In Exercising Personal Choices, Especially In Matters Relating To Marriage: High Court of Delhi 

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Title: MD NEMAT ALI AND ANOTHER v. THE STATE AND OTHERS 

Decided on: 17th October 2023 

W.P.(CRL) 3045/2023 

Coram: HON’BLE MR. JUSTICE SAURABH BANERJE 

Introduction  

Delhi high court has directed to give protection to a major couple who are under threat for getting married against the will of their families on the basis of Article 21 of the Constitution of India, which gives Protection to Life and Personal Liberty to all persons whereby it is the inherent right of every individual to exercise personal choices, especially in matters relating to marriage. 

Facts of the case  

The petitioners are majors who got married to each other on 06.10.2023 according to Muslim rites and ceremonies. The Nikah Nama was duly registered by a Quazi in accordance with Muslim law. Respondent no.4 and 5 threatened the petitioners & petitioner no.1’s family members of dire consequences as the marriage was solemnized against the wishes of respondent no.4 and 5. A petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been filed by the petitioners seeking issuance of a writ in the nature of mandamus directing respondent nos.2 and 3 to provide protection to the petitioners against life and liberty threats given by respondent no.4 and 5 (father and uncle of the petitioner no.2). 

Court Analysis and Decision 

The court finds that the petitioners in the present case are both major and are well within their rights to marry each other. Respondents no. 4 and 5, though family members of petitioner no.2, cannot be allowed to threaten the life and liberty of the petitioners, who do not require any social approval for their personal decisions and choices. Article 21 of The Constitution of India gives Protection of Life and Personal Liberty to all persons whereby it is the inherent right of every individual to exercise personal choices, especially in matters relating to marriage. Thus, the petitioners are well and truly entitled for protection under Article 21 of The Constitution of India. Accordingly, the petition was allowed, and the petitioners are free to call or get in touch with the officers of Jahangir Puri Police Station, Delhi, as and when the need arises. The station house officer and Beat Constable concerned were directed to take all possible steps to provide adequate assistance and protection to the petitioners, in accordance with law. 

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Written by- K R Bhuvanashri 

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