POCSO Act| Doctor Need Not Disclose Name Of Minor U/s. 19(1) When Terminating Pregnancy From Consensual Relationship: Madras HC
The Madras High Court has held that a minor girl seeking to terminate her pregnancy arising out of a consensual relationship is not required to disclose her name to the medical practitioner in the report mandated under Section 19(1) of the Protection of Children from Sexual Offences Act (POCSO Act).
The Court referred to the Supreme Court's Judgement in the case of X vs. Principal Secretary, Health and Family Welfare Department [C.A No.5802 of 2022] and observed that such a measure is put in place to avoid imposing a legal process on minors and their guardians who may not wish to pursue it. The Court emphasised that the termination can be performed without disclosing the minor's identity in such instances.
“It is clear from the above that where a minor approaches a registered medical practitioner for medical termination of pregnancy arising out of a consensual sexual activity, it is not necessary to insist for the disclosure of the name of the minor in the report that is normally given under Section 19(1) of the POCSO Act. This procedure has to be followed, since there are instances where minor and their guardian may not be interested in proceeding further with the case and to entangle themselves with a legal process. In such instances, such termination of pregnancy can be made without the disclosure of the name of the minor. This issue has to be specifically addressed by the 6th respondent and a procedure must be evolved to strictly comply with the judgment of the Apex Court referred supra”, the Bench comprising Justice N. Anand Venkatesh and Justice Sunder Mohan observed.
In the order dated July 11, the High Court had instructed the Director General of Police (DGP) to review the 1274 pending cases and identify those involving consensual relationships. The DGP was then directed to create a separate list of cases involving casual consensual relationships and submit it to the Court along with a report on sexual offence cases, wherein the reference to the Two-Finger Test or Potency Test was made. The DGP submitted five volumes of materials pertaining to 111 cases containing the FIR, gist of the case, 164 statements recorded, medical reports of the victim and the child in conflict, and their age proof. The DGP also submitted data from 36 units and stated that the authorities were still collecting data from 10 more units. (read report)
The Court directed a medical examiner to submit expert opinion on the Two-Finger Testa and Potency Test.
The Court observed that the two-finger test and per-vaginum test are completely irrelevant and should be avoided. The Court referred to a circular issued by National Health Mission-Tamil Nadu of November 2022, which emphasised that "per-vaginum or colposcopy examination should not be done unless it is required for the detection of injuries or for medical treatment".
The Court referred to Supreme Court's judgment in the case of State of Jharkhand vs. Shailendra Kumar Rai and noted that “Apex Court has almost equated two finger test and the per-vaginum examination and therefore, both those test/examination are now completely barred by virtue of the judgment of the Apex Court. If at all, the Doctor needs to find out if there is any injury to the hymen, it can be done only with an instrument and while doing so, the Circular issued by the National Health Mission should be kept in mind which in clear terms states that such examination should not be done unless required for detection of injuries or for medical treatment.”.
Regarding the Potency Test, the Court asserted that the test is not required in sexual offence cases and that to trace the semen, a blood sample of the offender is enough to match DNA. The Courts should assume that the accused person is potent unless impotence is raised as a defence, the High Court noted.
“It is quite evident from the statement made by the Doctor and also the written note submitted by the Doctor that potency test need not be undertaken in a routine manner in all cases involving sexual offence. The Court has to proceed with the presumption that the man is potent. If the accused person raises impotency as a defense, the burden of proof will be upon the accused person to prove that he is impotent. Only in such instances, there is a requirement for conducting the potency test. We make it abundantly clear that potency test must not be confused with the general examination of the accused person that is carried out as a part of the normal procedure”, the Bench noted.
The Court emphasized that the above-mentioned observations should be taken into consideration while preparing the Standard Operating Procedure for conducting medical tests on female victims.
Accordingly, the Court adjourned the case to September 25.
Cause Title: Kajendran v. Superintendent of Police and Others
