Category: Case Law

Meera Santosh Pal v Union of India SCC/SC/462/2017

The petitioner’s foetus was diagnosed with anencephaly (a severe medical congenital condition in which a large part of the brain is absent) Meera Santosh Pal, a 22-year-old woman, had petitioned before the Apex Court under Article 32 of the Indian Constitution, requesting the Court to allow her to have her pregnancy terminated medically. She had realised that she was in grave danger after learning that her pregnancy had been diagnosed with anencephaly, a condition that causes the foetal skull bones to remain unformed and was both untreatable and guaranteed to result in the infant’s death during or shortly after birth. This disorder is also known to put the mother’s life in jeopardy. In the 24th week of her pregnancy, the petitioner had approached the Supreme Court of India. he Court observed that despite the fact that the pregnancy was in its 24th week, it would be reasonable to allow the petitioner to terminate the pregnancy due to the risk to the mother’s life and the foetus’ incapacity to live outside the womb. The most important aspect is that she has the right to take any and all measures required to protect her own life from needless harm. Given the threat to her life, there is no doubt that she has the right to defend and preserve her life, especially because she has made an educated decision. Her freedom to exercise it appears to be within the bounds of reproductive autonomy The Supreme Court ruled in favor of the petitioner while placing reliance on the Suchita Shrivasta case that this choice of a woman falls under the protection guaranteed by Article 21 of the Constitution. The Court also emphasised the point of the consent of a woman in both termination and continuation of pregnancy.  Justices  L. Nageswara Rao, S. A. Bobde

State of Jharkhand v Shailendra Kumar Rai and Others SCC/SC/1294/2017 

The Supreme Court has ruled that all women, regardless of their marital status, are entitled to benefits of safe and legal abortion up to 24 weeks of pregnancy, in another historic verdict. They declared that discrimination against women based on their marital status is against their right to equality. The Prosecution filed and appeal before the Supreme Court in order to overturn a man’s conviction and sentence for rape and murder of young girl in Jharkhand in November 2004. The victim alleged that the accused pushed her the ground and raped upon her and victim has been set on the fire by the accused after she shouted for the help and her grandfather, mother and villages residents came to her room and the accused was fled upon seeing upon them. The girl was afterwards taken to a hospital in Deoghar, where she underwent the ‘two finger test’. The SC gave the following  guidelines and declared that the persons found conducting the test would be guilty of misconduct. 

• Ensuring that all public and private hospitals receive the guidelines created by the health ministry and family welfare.
• The holding of workshops for medical professionals or employees to explain the correct procedure to be taken when examining rape and sexual assault survivors.
• Review the medical school curriculum to make sure that the ‘two finger test’ or per vaginum examination is not listed as one of the methods to be used when assessing rape and sexual assault survivors.
• The copy of the judgment must be given to the secretary, the ministry of health, and the government of India. Copies must also be sent to every state’s department of health.
• The responsibility for seeing that these rules are followed rests with each department’s main secretaries.

Justices DY Chandrachud and Hima Kohli

S. Amalraj v Kanikkaimarry, Crl.O.P. (MD) No. 15704/2018, Madras High CourtThe above petition was filed by the husband under S. 482 CrPC to quash the FIR filed against him u/s 31 of the Protection of Women from Domestic Violence Act (DV Act) stating non payment of maintenance does not amount to breach of protection order. The Court held that S.31 is a key provision and heartbeat of the DV Act to regulate the violator of protection orders passed under S. 18. The question as to whether the law enforcing authority has jurisdiction to register a Criminal Case under S. 31 of the Act for non-payment of maintenance allowance which is deemed to be breach of protection order under S. 18 of the Act, is answered affirmatively and the law enforcing authority has jurisdiction to register the case and proceed in accordance with law for every breach of order without any legal bar for the reason that each breach of order amounts to a continuing offence‘ The court held that registration of the FIR by the police could not be faulted with. This Court without any ambiguity held  that non-payment of maintenance allowance would amount to economic abuse and the same will very well come under the umbrella of breach of protection order.