Chandigarh Admin Vs Nemo Judgement Two

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. In C.W.P. No. 8760 of 2009. Date of Decision: 17th July, 2009. Chandigarh Administration Petitioner Versus Nemo CORAM: HON'BLE MR. JUSTICE SURYA KANT. HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Anupam Gupta, Senior Standing Counsel with Mr. Ashish Rawal, Advocate, for U.T., Chandigarh. Mr. R.S. Cheema, Sr. Advocate and amicus-curiae with Ms. Tanu Bedi, Advocate . SURYA KANT, J. The 2nd phase of the non-adversial Public Interest Litigation, embattled on an emotional pitch, has led to the passing of this order which is to be read in continuity with our order dated 9th June, 2009, whereby besides constitution of an expert-body to examine the victim and opine on the medical termination of her pregnancy allegedly caused due to her repeated rape, various directions, to improve the functional conditions of the government run/aided special homes for destitutes, orphans, mentally ill or retarded persons, were also issued. [2] At the cost of repetition, it may be mentioned here that the victim - an orphan, is a mentally retarded young girl of 19-20 years of age and while she was an inmate of a government run institution, namely, Nari Niketan, Sector 26, Chandigarh, was repeatedly raped allegedly by more than one security guards of the institute. She was shifted to another government run institute – Ashreya where her pregnancy was detected on 18th May, 2009. Based upon the recommendation made by the multi-member Medical Board constituted by the Director Principal, Government Medical College & Hospital, Sector 32, Chandigarh for medical termination of the pregnancy of the victim, the Chandigarh Administration has filed this writ petition, statedly in public interest,

seeking permission of this Court for medical termination of pregnancy of the victim. [3]. Having heard learned counsel for the petitioner, learned Advocate Generals for the States of Punjab and Haryana, learned amicus curiae and other members of the Bar, at a considerable length, we have held vide our order dated 9th June, 2009 that literal interpretation of Section 3(4) of the Medical Termination of Pregnancy Act, 1971 (in short 1971 Act) cannot impinge upon the constitutional powers of this Court, especially its parens-patriae jurisdiction to be exercised in the best interest of the guardee. We accordingly declined to accept that “in the case of a mentally retarded major pregnant woman, the medical termination of her pregnancy shall always depend upon her own decision”. [4]. With a view to be inerrant about the mental and physical state of the victim, we decided to obtain a second medical opinion from an Expert Body comprising eminent experts from the Post- Graduate Institute of Medical Education & Research, Chandigarh and nominated a fairly senior Judicial Officer in the rank of Additional District & Sessions Judge as its Member-cum-Co-ordinator. From our point of view, we requested the Expert Body to specifically address 13 issues framed by us but also left it open to the experts to frame any other additional issue[s] as they may deem appropriate and give their categorical opinion in relation thereto. [5]. Our order dated 9th June, 2009 thereafter directed as follows:- “[38]. If the Expert Body forms a bona-fide opinion that the pregnancy needs to be medically terminated in the best interest of the victim, we in exercise of our parenspatriae jurisdiction, direct the petitioner Administration to admit the victim in the Government Medical College and Hospital, Sector 32, Chandigarh, constitute a team of Medical Experts comprising not less than two Gynaecologists and the other related associates, who shall then terminate the pregnancy of the victim forthwith and without any delay as soon as the report of the Expert Body is received. The Authorities of the above mentioned College and Hospital are directed to ensure best of the post-operational medical services to the victim. We further direct that, in such an eventuality, the foetus shall be preserved for the DNA and other scientific tests, especially for the purposes of the criminal case pending investigation. A compliance report to this effect shall be placed on record by way of an affidavit of the Director – Principal of the Government Medical College and Hospital, Sector 32, Chandigarh. [39]. We clarify that if despite acknowledging the present and future implications/consequences, the victim strongly opposes the termination of her pregnancy, in that event the report of the Expert Body along with the expression of views by the victim shall be placed before us before July 01, 2009 for determining as to whether or not the pregnancy of the victim should be medically terminated”.

[6]. We also issued certain directions to improve the functioning of the government run/aided institutes of social-welfare and also directed (by a separate order of even date) the Senior Superintendent of Police, Chandigarh to place on record a status report of the ongoing investigation in the criminal case registered under Section 376/120-B IPC, etc. in relation to the horrifying incident (s) of rape of the victim which led to her pregnancy. [7]. In compliance to our directions, the Director, PGIMER, Chandigarh constituted an Expert Body, comprising – (i) Prof. Ajit Awasthi, Department of Psychiatry; (ii) Prof. Savita Kumari, Department of Internal Medical; (iii) Prof. Vanita Jain, Department of Obstetrics & Gynaecology; and (iv) Dr. Meenu Singh, Department of Paediatrics who examined the victim thoroughly, jointly as well as separately. [8]. It would be appropriate, at this stage, to reproduce the issues raised by us in our order dated 9th June, 2009 and the response thereto by the Expert Body in the following tabulated form:[i] the mental condition of the retardee She suffers from mild to moderate mental retardation. [ii] her mental and physical condition and ability for self sustenance A case of Mild to moderate Mental Retardation, Pregnant : Single live foetus corresponding to 13 weeks 3 days +/- 2 weeks, Postoperative scars for spinal surgery, HbsAG positive. Her mental status affects her ability for independent socio-occupational functioning and self-sustenance. She would need supervision and assistance. [iii] her understanding about the distinction between the child born out of and outside the wedlock as well as the social connotations attached thereto. As per her mental status, she is incapable of making the distinctions between a child born before or after marriage or outside the wedlock and is unable to understand the social connotations attached thereto. [iv] her capability to acknowledge the presenti and consequences of her own future and that of the child she is bearing. She knows that she is bearing a child and is keen to have one. However, she is unable to appreciate and understand the consequences of her own future and that of the child she is bearing. [v] her mental and physical capacity to bear and raise a child. She is a young primigravida with abnormalities of gait and spinal deformity and Hepatitis B surface antigen positive status. However, she has adequate physical capacity to bear and raise a child. She is a case of mild to moderate mental retardation which often limits the mental capacity to bear and raise a child in the absence of adequate social support and supervision. [vi] her perception about bringing up a child and the role of an ideal mother. She has grossly limited perception about bringing up a child and the role of an ideal mother. [vii] does she believe that she has been impregnated through un volunteered sex? She has a limited understanding of the sexual act and relationship, and even the concept of getting pregnant. She did not volunteer for sex and did snot like the sexual act.

[viii] is she upset and/or anguished on account of the pregnancy alleged to have been caused by way of rape/un-willing sex? She has no particular emotions on account of the pregnancy alleged to have been caused by way of rape/un-willing sex. She is happy with the idea that she has a baby inside her and looks forward to seeing the same. [ix] is there any risk of injury to the physical or mental health of the victim on account of her present foreseeable environment? Her internal environment of pregnancy does not pose any particular risk of injury to the physical health of the victim. Her mental health can be further affected by the stress of bearing and raising a child. Her external environment in terms of her place of stay and the support available thereof is difficult to comment because of our lack of familiarity with the same. She definitely needs a congenial and supportive environment for her as well as for the safety of the pregnancy. [x] is there any possibility of exerting undue influence through any means on the decision making capability of the victim? Her mental state indicates high suggestibility because of her reliance on rote memory and imitative behaviour for learning. Being highly suggestible her decision making can be easily influenced. [xi] Do the over-all surroundings provide reasonable space to the victim to indulge in independent thinking process and take firm decisions on the issues vital to her life prospects? We are not familiar with her over-all surroundings, hence unable to comment. [xii] What is the possible nature of the major spinal surgery alleged to have been undergone by the victim during her childhood? Does it directly or indirectly relate to the bony abnormalities of the victim? Can such abnormalities have a genetic basis to be inherited by the baby? As per the neurosurgeon, spinal surgery during childhood could have been due to neural tube defect or spinal cord tumour. This could have been confirmed by MRI tests, but the same could not be carried through as those were considered to be potentially hazardous for the foetus. There is no history/records available for the spinal surgery, hence, the safety profile issues relevant for the patient undergoing MRI like the possibility of use of any metal screws to fix the spine wherein MRI can be hazardous can not be definitely commented upon in this case. The neural tube defect in the patient can lead to an increased chance of neural tube defect in the baby. However, these defects can be detected by blood tests of the mother and ultrasound. Presence of neural tube defect in the parent is not an indication for termination of pregnancy. It is not possible to comment on the inheritance of spinal cord tumours without knowing the exact nature of the tumour. [xiii] Is there a genuine possibility of certain complications like chances of abortion, anaemia, hyper-tension, prematurity, low birth weight baby, foetal distress, including chances of anaesthetic complications, if the victim in the present case, is permitted to carry on the pregnancy? The possibility of complications like abortion, hypertension, prematurity, low birth weight baby and foetal distress are similar to any pregnancy in a woman of this age group.

Due to the spinal abnormality and gait defect she has a higher chance of operative delivery and associated anaesthetic complications. Spinal and gait abnormalities are not an indication for termination of pregnancy. Pregnancy in women with Hepatitis B surface antigen positive status is usually uneventful. The prenatal transmission from mother to infant can be prevented by giving immunoprophylaxis to the neonate. Acute or chronic Hepatitis B infection during pregnancy is not an indication for termination of pregnancy. [xiv] What can be the most prudent course to be followed in the best interest of the victim? Her physical status poses no major physical contraindications to continue the pregnancy. The health of foetus can be monitored for any major congenital defects. Her mental state indicates limited mental capacity [intellectual, social adaptive and emotional capacity] to bear and raise the child. Social support and care for both the mother and the child is another crucial component. Therefore, any decision that is taken keeping her best interests as well as her unborn child has to be based on the holistic assessment of physical, psychological and social parameters. [9]. Though vide para 38 of our order dated 9th June, 2009, the Expert Body was explicitly authorized to go ahead with the medical termination of the pregnancy of the victim upon its satisfaction, nevertheless, the Expert Body has expressed its hesitance to take a final decision and has submitted its report[s]. The learned Judicial Officer, while compiling the opinion of the subject experts, has also loaded the report with her own opinion against termination of the pregnancy. [10]. The victim being mentally retarded, the expert opinion of Prof. Ajit Avasthi, Department of Psychiatry, PGIMER, Chandigarh is of immense value and crucial for the formation of a final view in the matter. We, therefore, deem it appropriate to reproduce Prof. Avasthi’s opinion in extenso, which reads as follows:“General Physical Examination: BP-100/70 mm Hg; Pulse -90 per min, regular; Height – 4 feet 10 inches; Weight – 48 kg, Head Circumference – 52 cms. Depressed nasal bridge with broad nares, no abnormality/gross deformity of skin, palate, ears, neck, Eyes-incased intercanthal distance, Feet increased gap between first two toes. Sense organs intact, no sensory abnormality or impairment. Cardio Vascular System and Respiratory system – no abnormality, Central Nervous System-conscious, cranial nerves intact, speech unclear, no abnormality of tone or power of muscles, scoliosis present, no abnormality of cerebella system, reflexes bilaterally brisk and symmetric, No gross motor or sensory abnormality, two vertical midline scars on the back at the spinal region (postoperative scars). On mental state examination no perceptual abnormality, no evidence of psychotic features, appears somewhat anxious with wringing of hands, no gross motor abnormality, no symptoms suggestive of depression. Attention can be easily aroused and sustained, rapport is established, short term memory intact, long term memory patchy, no gross behavioural abnormality, no

evidence of hyperactivity, compulsive/impulsive behaviour or self injurious behaviour. Patient displays social smile which is appropriate and also displays range of emotions like being anxious, shy and happy during the period of examination which are all appropriate. No echolalia, echopraxia, perseveration or stereotypes/mannerism. Speech relevant, somewhat difficult to comprehend because of lack of clarity (lisping), however, with little effort she can be understood. Patient can follow simple instructions and her comprehension for simple commands is intact. Language development is devoid of use of metaphors, symbols and concepts. It is just adequate for simple every day purposes but not sufficiently developed to hold conversations. Behaviour and learning is largely imitative and rote memory is used for basic understanding and functions. There is very poor understanding of life-phase demands and expectations eg. In the areas of social reactions, social roles including marriage and child bearing roles, understanding of cultural traditions and her capacity to cope with those. Patient is properly groomed and displays adequate skills for basic self care (eating, washing, dressing, bowel and bladder control). Practical and domestic skills are rudimentary and not adequately acquired or developed. Resultantly, there is evidence for impaired social and test judgment and significant emotional immaturity. She has not acquired functional math and reading skills and has grossly limited idea of personal health and safety. To illustrate with some examples:Able to identify pieces of jewellery, could name different pieces of clothes, name their colours, could name some fruits, vegetables, sweets, identification of common items like table, fan, watch, chair etc. However, she had no idea of time, how vegetables are grown, how cooked, how sweets are prepared, mixing of colours, types and colouring of textiles etc. She could identify the place but could not convey what is meant by a hostel, hotel or a hospital. She could name doctor but had no conceptual understanding of the roles and functions of a doctor. She acknowledged that she had a child inside her but had no idea of how conception takes place, the development of pregnancy or even the duration of pregnancy, age of child inside her, how will it come into the real world, chances of any harm to or abnormality to her unborn child, what is expected of her in child rearing, how to provide succor and sustenance to child. To the extent that in her unborn child she saw the possibility of having a brother to her. She even had no clear idea of female and male, sexual act and its attendant emotions, concept of marriage, her role as a wife except that she would cook for the “bhaiya”) (refers to matrimonial partner as a bhaiya or possible to every man as a bhaiya). She had poor idea of her sexual role and expectations in marriage. Her simple mental operations are reflected by her anguish at a preferred suit being torn during what she narrates attempt to undress her rather than an unwilling sexual encounter and its consequences thereof. Most mental operations are guided by rote memory and imitative behaviour e.g. She can write English alphabets in a sequence but not out of sequence. She can draw a square and a circle but cannot draw the shape of a given or imagined

object which has a shape different from square/circle. She can recognize her name written in English alphabets but not make a phonetic sense of any other simple word. She can identify some of the Indian currency notes but cannot sum up or subtract in even simple mathematical tasks. Cannot use money for any meaningful purpose. In view of the simple nature of mental operations wherein much of the adaptation is a consequence of imitative behaviour and rote memory, there is high propensity for suggestibility. Conclusion:- Clinically, she meets the psychiatric diagnosis of Mild to Moderate Mental Retardation. This impression is based on her adaptive and intellectual impairments including impairments in cognitive and social skills, emotional adaptation, community living skills, and use of language; minor physical anomalies and possibility of a corrective surgery for neural tube defect. [11]. Dr. Rama Malhotra from the Department of Psychiatry appears to have evaluated the IQ level, adaptive nature and age of the victim and has opined as follows:“Patient was referred for IQ assessment. She was cooperative as well as communicative, though she was having slurred speech. She was oriented to place and person and could not elaborate or detail the answers. During the assessment, she was sitting with her feet up on the chair. She was asked to sit comfortably. Concept of body parts, colours, numbers were present. She could recognize money but did not knew the value of it. When asked she could write her name in English as well as in Hindi. She could not read time from the clock. Following tests were administered. Gesell's Drawing Test: On Gesell's Drawing test, her mental age was 7 yrs. Sequin Form Board Test: On Sequin Form Board Test, her mental age was 9-9.5 yrs; with performance quotient-66 (standard chronological age was 14). Vineland Social Maturity Scale: On Vineland social maturity scale, her social age was estimated as 7 yrs. With social quotient=50. Malin's intelligence scale for Indian Children:- On Malin's intelligence scale for Indian children, her score profile was as follows:Verbal Intelligence:Information 4/60 G. Comprehension 2/57 Arithmetic 5/66 Digit span 3/61 Verbal quotient: 61 Performance Intelligence:Picture completion 7/72 Block Design: 10/69 Performance quitrent: 71 Mean IQ=66 (falls in the category of Mild Mental Retardation, being lowest score on general comprehension). Sequin Form Board test =66 Vineland Social Maturity scale: 50

Malin's Intelligence scale for: 66 Indian children Mean IQ=61 (Mild Mental Retardation) Vineland Social Maturity Scale:On Vineland Social Maturity Scale, her social age was estimated as 7 yrs., with social 50 quotient. In different areas of Vineland social maturity scale, her profile was as follows. Self-Help General: Fail to tell time from a clock for practical purposes (Lowest age < 7.28). Self Help Eating can look after her needs on the table, helps self according to needs (LA<9.03) Self Help Dressing: Can dress undress herself, comb and brush hair and bath self unaided (LA<8.85). Locomotion: Can not look after self outside immediate neighbourhood on her own, can go with friends, but needs help to direct her. (LA<5.83.). Occupation: Can not draw with pencil and produce simple recognizable forms. Can not take care of self unsuper-vised outside her own living space. Can help at simple tasks, such as dusting, arranging, cleaning, washing dishes, cleaning table etc. under supervision. Communication:- Can not read or write; can simply write her name in Hindi and English legibly. Can have simple accounts of experiences without details or eleborations (Lowest age < 6.15) Self Direction: Can not be trusted with money. Socialization: Can do simple routine jobs for others like fetching objects, peeling vegetables but can not be engaged in competitive exercise or complex tasks (LA<5.13). To conclude, her activities of daily living for self are intact; can give simple account of experiences can be engaged in simple tasks”. [12]. The matter, however, did not end there. The compiled report and the response given by the Expert Body to some of the issues formed by us suggest that the victim “wants to keep the child” and that “she likes children” and does not “want to be deprived of the child”. This has led to yet another marathon round of a highly educative, knowledgeable but somewhat emotionally charged contentions between the learned counsel, who have also mustered support for their eloquent contentions from a series of books and articles, especially by the experts in the fields of psychiatry, mental and behavioural disorders, mentally retarded persons, their rehabilitation in social mainstream and parenting rights. Learned counsel for the petitioner, while highlighting the mental incapacities of the victim as reported by the subject-experts, urged that this Court should avert the tragedy of a “child” bearing another ‘child’ and feverishly argued that the victim being totally unable to understand the sexual behaviour or social connotations of a child born ‘out’ of and ‘outside’ the wedlock, is mentally incapable to give “consent”, what to talk of an informed consent. According to him, the so-called consent given by the victim for retention of her pregnancy is no consent, either in law or on facts.

[13]. Per-contra, and propounding the theory of pro-life and pro-choice, the learned amicus curiae reminded us that even as per the report of Dr. Avasthi, the victim is a mentally retarded person (and not a mentally ill person) and she being major, her pregnancy cannot be terminated without her consent, as mandated by Section 3 (4) of the 1971 Act and since the victim has expressed her desire to keep the child, this Court is now left with a limited choice, especially in view of para 39 of our previous order dated 9th June, 2009. The learned amicus took us through a fine literary odyssey to impress upon us that in her lost world the victim has now got a ray of hope of having someone as her own and it would be exhibiting gruesome cruelty to deprive her of what she now cherishes to come out of her and make her life meaningful. Besides asserting the right of self determination for persons with intellectual disabilities, the learned amicus-curiae also relied upon two Division Bench decisions of Madras and Kerala High Courts in the cases of [i] V. Krishanan vs. G. Rajan @ Madipu Rajan and others, and (ii) Mrs. Usha Abraham v. Abraham Jacob, AIR 1988 Kerala 96, respectively. [14]. We have given our thoughtful consideration to the rival contentions raised at the bar in a continuous hearing for over ten days; have also gone through the relevant parts of the referred books, literature and articles and have also had the advantage of an interaction with Ms. Veena Sharma, an eminent Social Worker and Human Rights Activist of impeccable integrity, who had an occasion to interact with the victim for hours. Vide our previous order dated 9th June, 2009 we have already held, though with a caveat, that Section 3[4] of the 1971 Act can not be interpreted in abstract to mean that in the case of a mentally retarded major pregnant woman, her own consent alone shall determine the fate of the pregnancy. We say so for the reason that the social environ as well as the attending circumstances of the said mentally retarded pregnant woman shall guide as to what extent and how far the State or the Court, would be required to step forward to exercise their parens-patriae jurisdiction to decide as to whether or not she is fully capable to give consent after acknowledging the consequential implications. In other words, the guardian ad-litem shall have to ascertain that the “consent” is free from any type of undue influence, distress and is realistic in the sense that the mental capacity of the person giving consent is beyond doubt. [15]. Should we not permit the petitioner - Administration to medically terminate the victim's pregnancy solely on the ground that the victim wants to keep the child as she likes children or should we adopt a holistic approach after taking into consideration several other factors which have a direct bearing on the future of the victim as well as of the foetus in her womb!, is the core issue to be determined. [16]. Some of the following factors are undeniably of paramount consideration on the child bearing capacity of any major woman including the victim:[i] PHYSICAL CONDITION OF THE MOTHER:-

[17]. In the case in hand, we are satisfied with the medical reports placed on record by the petitioner – Administration and the report of the Expert Body of the PGIMER that notwithstanding the abnormalities of gait and spinal deformity or some other physical abnormalities with possibility of corrective surgery for Neural Tube defect, the victim is not suffering from any serious physical disability of such a degree which may prevent her from carrying on with the pregnancy or delivering the child. [ii] THE MENTAL CAPACITY OF THE MOTHER:[18]. The victim is admittedly a mentally retarded person. While she was categorized as a “mild” mental retardee by the first set of experts, Prof. Awasthi of PGIMER has categorized her between “mild to moderate” mental retardee. She has no idea as to how conception takes place, the development of pregnancy or even the duration of pregnancy. She does not know as to how the child in side her will come into the real world. She does not know the child rearing or how to provide succour and sustenance to the child. She even has no “clear idea of female or male sexual act and its attendant emotions, concept of marriage”-etc. Most of the mental operations of the victim are guided by rote memory and imitative behaviour. Prof. Awasthi has opined that since much of the adaptation by the victim is a consequence of imitative behaviour and rote memory, there is high propensity for suggestibility. The victim has no idea of time, how vegetables are grown, how sweets are prepared or mixing of colours etc. The victim's language development is devoid of using metaphoric symbols and concept and is insufficient to hold conversations. There is poor understanding of life phase demands and expectations in the areas of social reactions, social roles including marriage and child bearing roles, understanding of cultural traditions and her capacity to cope with those; though she is properly groomed and displays adequate skills for basic self-care but practical and domestic skills are rudimentary due to which she has impaired social and test judgment of significant emotional immaturity. She has grossly limited idea of personal health and safety. The maturity of the victim is of 7-8 years. While assessing the IQ level and age etc. of the victim, Dr. Rama Malhotra has opined that the victim can do self-help eating and dressing but “can not look after herself outside or immediate neighbourhood of her own - can go with friends but needs help to direct her”; has been assessed capable of doing simple occupation like dusting, arranging and cleaning tables etc. and that too under supervision and is unable to read and write and can not be trusted with money. Similarly, for socialization, the victim has been found to do simple jobs like fetching objects or peeling vegetables but can not be engaged in competitive exercise or complexed tasks. [19]. We may mention here that according to the Experts as well as the Social Worker, who had an occasion to interact with her, the victim has absolutely no knowledge as to how a woman becomes pregnant and obviously has no idea

about her own pregnancy. For her “a child” is a “toy” with whom she likes to play and, therefore, she wants the child inside her to come outside so that she can play with him. Prof. Awasthi has found that the victim has no understanding of a mother-child relationship as according to her the child in her womb is her “Bhaiya” [brother] like any other male to whom she probably addresses as 'Bhaiya'. [III] SOCIAL CONDITIONS AND SURROUNDING ENVIRONMENT:[20]. In our considered view, the social surroundings and the atmosphere in which a pregnant woman nurtures the child in her womb have a direct bearing on the mother and the child both. In the case in hand, the victim is an orphan who was apparently abandoned by none else than her own parents. She has grown up in the Government run/aided institutions, like the Missionaries and the Nari Niketan. At present also she is living in Ashreya, which is primarily a shelter home for the mentally retarded and mentally ill persons. [IV] FINANCIAL CONDITIONS:[21]. Financial conditions has an impact on the capacity to bear and raise a child as notwithstanding the loud claims of various welfare Schemes made by the States, a vast majority of children belonging to the poor sections of society are mal-nutritioned and even their bare necessities are seldom fulfilled. The victim herein is an illiterate mentally retarded young girl who does not possess any occupational skills. She already being in the age group of 19-20 years, her IQ level can improve no more. Would she ever be able to work and earn independently for self-sustenance is a highly debatable issue. [v] SOCIAL OR FAMILY SUPPORT:[22]. There can indeed be no doubt that an intellectually impaired pregnant woman, suffering from other disadvantageous conditions illustrated above, can legitimately discharge parenting responsibilities given the social or family support needed during those anxious times. “Family” is the most vibrant tool of emotional ties, social security and can protect a pregnant woman from hundreds of discomforts. The absence or lack of family support, to a large extent can be adequately met with by responsible, caring and vigilant social Institutions or social groups. Our desperate search for an Institution where the victim or the future child could be emotionally compensated, socially protected and groomed well to survive on selfhelp basis, has turned futile as it would be too far fetched to equate a government run/aided Institution with an ideal model. [23]. To conclude, we find that except her physical ability, the victim is neither intellectually nor on social, personal, financial or family fronts, is able to bear and raise a child. We are satisfied with the reports of the Experts that the victim is incapable of understanding the concept of motherhood or of pregnancy or pre

and post delivery implications. The victim, notwithstanding her innocent emotional expressions, is not mentally in a position to bear and raise the child. Asking her to continue with the pregnancy and thereafter raise the child would be a travesty of justice and a permanent addition to her miseries. The “toy” with which she wants to play, would want her to invest hugely which she is incapable of. [24]. We also can not over-look the fact that if allowed to be born, the child's own life, grooming and future prospects may itself be highly disappointing. There would be no choice but to keep the child in Ashreya where the victim is living, in the company of other mentally ill inmates. There shall, thus, be a consistent risk to the innocent life. His mother's own mental age being 7-8 years, the learning process of the child would be highly inadequate. The grooming and education of the child would again be at the mercy of the Government run/aided institutions whose dismal performance or the severely negligent behavioural attitude towards the inmates has already prompted us to issue various reformatory directions and to monitor their implementation in future. If born, the child would not only be deprived of the care and protection of a father, but, on account of the mental handicap of the victim, the mother also. [25]. There is no consensus or unanimity worldwide in respect of the parenting abilities of mentally retarded persons. The expression “parenting abilities” has been broadly understood to mean that the parents must be able to meet the physical needs of the child, preserve his/her health and safety, meet the emotional needs of the child and promote his/her intellectual growth. While one school of thoughts professes that a condition of arrested or incomplete development of mind characterized by impairment of skills manifested during the development period would not necessarily preclude adequate parenting, equally strong is the opposite view which accepts the mild or moderately mentally retarded adults self sufficient only who are unable to deal with the most complexed tasks like the parenting of a child as according to them, mentally retarded persons are unlikely to know the specifics of the child care tasks and their unfamiliarity with such tasks. While the pro-parenting school of thought has reasoned out that the greatest threat to the health and safety of children is the physically and sexually abusive parents as against the mentally retarded parents, the opposite camp relies upon “the preponderance of evidence” which points out towards increased risk of maltreatment when the parents are mentally retarded and lack of social, cognitive and wage earning skills. Even the pro-parenting school of thought admits that “the mentally retarded parents may have difficulty in providing an ideal environment for the maximized intellectual growth of their child. While laying emphasis that the mentally retarded persons “can learn methods to improve their comprehension and memory, they can, in fact, learn to learn”, the subject experts have candidly admitted that “the difficulty in teaching mentally retarded parents seems to stem more from the lack of adequate programmes and properly trained teachers than from the limitations of the students”.

[26]. We also find that the codified laws worldwide, in the context of parental abilities of the mentally retarded persons, not only expect but also insist that they should be measured “standing alone”. The pro-parenting school of thought has criticized such laws as according to it “familial support” in particular, is important to mentally retarded persons and it is unjust to judge the capabilities of a mentally retarded person, standing alone, as a parent. They advocate that the mentally retarded person, as the label has defined him, does not, and should not, stand alone. [27]. Nearer home, “The National Policy for Persons with Disabilities” does realize that “a majority of persons with disabilities can lead a better quality of life if they have equal opportunities and effective access to rehabilitation measures”. The policy acknowledges that “women with disabilities have serious difficulties in looking after their children. The Government will take up a programme to provide financial support to women with disabilities so that they may hire services to look after their children……” [28]. Prof. Awasthi has assessed the victim to be a mild to moderate mental retardee and since the learned amicus-curiae with his brilliant acumen has attempted to dismantle that kind of categorization, in respect whereto we do not intend to express any opinion, it would be suffice to strengthen our conclusion with the Expert’s opinion that if there is noticeable emotional and social immaturity, “the consequences of the handicap, e.g., inability to cope with the demands of marriage or child–rearing ………., will be apparent”. The research findings indicate a greater probability of mental retardation and the development of medical, emotional or cognitive problems amongst the children of mentally retarded parents. The inadequate parental skills, financial problems, inadequate housing, lack of independence skills, insufficient attention to the child, family conflicts, poorly developed basic social and linguistic skills and maltreatment of children etc. are some of the adversities identified by the subject specialists in the parenting abilities of the mentally retarded persons. The studies reveal that “when the children grow older, the problems increase as the balance between protection and encouraging new skills becomes more difficult”. [29]. We would now advert to the facts and circumstances of the case in hand in the context of some-what broadly acceptable globalised view point. The victim neither has family support, financial help, capacity to secure and earn livelihood nor is she physically and mentally capable to perform except a few simple manual jobs like dusting etc. Her IQ and maturity level has already been referred to in extenso. She, notwithstanding her physical age, is just a child mentally. In the existing system where, with no other choice, she is forced to live, we have no hesitation in observing that she is extremely vulnerable to all types of deceptive, dishonest and immoral offers even at the hands of those whom the law bestowed with the duty of looking-after her. It would be far removed from reality to assume that behavioural attitude of the society can be changed in days and nights,

congenial infrastructure can be implanted in months or the social acceptability of parental rights of the intellectually disabled persons can be enforced by a court’s order even without ensuring radical and sweeping social reforms. [30]. It supports popularism to say that the case in hand be tested and tried and be made an example to awaken the society to change its stereotyped perceptions and shed its prejudices. Suffice it to add here that misconceptions and prejudices do not grow in a day’s span nor can they be eliminated within a night. Would it not be mere poetic justice if we, notwithstanding our profound belief, are swayed by the emotional hue and cry made on behalf of a physically grown but mentally weak person who does not understand the consequences of what she is asking for, and allow that unborn child to enter this world even with the possible risk of physical deformities and an inadequate mother, or should we allow the victim to liberate herself from the forced physical, mental, moral and social responsibility which she is neither capable of shouldering nor aware of as to how has she been burdened with it? We firmly hold that notwithstanding the ambiguous responses given by the victim to some members of the Expert Body, who have erroneously though bona-fidely believed as if she is keen, with full informed knowledge of the present and future consequences, on bearing the child, the victim in the case in hand deserves to be liberated from this agonizing responsibility which has been forced upon her, by way of brutal acts of her mental childhood having been ravished. [31]. It needs equal emphasis that the case in hand unequivocally certifies the ingredients of Explanation-1 to Section 3 [2] of the 1971 Act. We say so on the basis of over-whelming material on record in support of such conclusion. The Evaluation Report dated 25th May, 2009 submitted by the Board comprising a Psychiatrist, Clinical Psychologist and an eminent Social Worker reveals that at the time of her examination, the victim had stopped enjoying “watching TV etc. as she used to earlier”. She would even feel bad when forced to watch TV and ‘SHE ALSO CRIES ALMOST DAILY’. The fact that she informed the Expert Body constituted by us that “she did not like the sexual act” and the manner in which she expressed her anguish when her clothes were torn during the unwilling and fully resisted sexual encounter. It is pertinent to mention that the victim has been able to exhibit her anguish even when she has no clear idea of a female or a male form, a sexual act or its attendant emotions. [32]. The victim has expressed her anguish and strong resentment against the assault on her person, however, due to her inability to understand the sexual act or as to how the conception or development of the foetus takes place and how a child is born, that she could not co-relate her anguish with the act of the rape committed on her. It is in this back-drop that the so-called consent given by the victim for retention of her pregnancy has to be evaluated. What she has consented for is something which she has absolutely no knowledge of. In our view, the victim can not be said to have consented for retention of the pregnancy caused by the brutal act of rape for the obvious reason that she does not know

as to how conception takes place. What she has consented for is only to havea child not knowing the meaning of pregnancy and how has it taken place or how a child is born. She can not make any distinction between her own child or of someone else’s and just needs a child to play with. The inference of consent drawn from such innocent expressions of the victim is, thus, highly deceptive and not based upon her knowledge regarding the present or future implications, responsibilities and the social fall-outs. An un-informed statement like that is no ‘consent’ in the eyes of law. [33]. Contrary to it and given the mental condition of the victim or her suspected physical disability, we have no reason to doubt that the continuation of the pregnancy shall constitute a grave injury and may lead to more deterioration in the mental health of the victim. [34]. In V.Krishanan’s case [supra] , the Madras High Court rejected a father’s plea to terminate the pregnancy of his daughter whom he claimed to be 16 years old, after taking notice of the fact that as per the report of the radiologist, the girl was aged between 20 to 25 years; she had performed love marriage; she had been impregnated by her husband and the girl as well as her husband both had strongly opposed the girl’s father’s prayer. In Mrs. Usha Abraham’s case [supra], a Division Bench of the Kerala High Court dismissed the husband’s petition for divorce sought on account of lunacy or idiocy of his wife. The Division Bench found that the wife was suffering from mild retardation; was not seriously abnormal and was “able to keep up with the obligations of marital life”. The facts of the case in hand are entirely different from that of the cited decisions. [35]. For the reasons stated above and in continuity of our previous order dated 9th June, 2009, we direct the petitioner– Administration to act promptly and forthwith medically terminate the pregnancy of the victim in terms of Para 38 of our previous order dated 9th June, 2009. [36]. We adjourn the matter for 3rd August. 2009 to report compliance and to consider the desirability of issuing further directions in the light of very valuable submissions and suggestions given by the learned amicus-curiae. [37]. Let a copy of this order be supplied to learned counsel for the Chandigarh Administration and the learned amicus-curiae under the signatures of the Bench Secretary during the course of day. (SURYA KANT) JUDGE July 17, 2009. [AUGUSTINE GEORGE MASIH] dinesh JUDGE