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Synopsis

The Madras High Court recently observed that if a minor approaches a registered medical practitioner for medical termination of pregnancy arising out of consensual sexual activity, it is not necessary to insist on the disclosure of the name of the minor in the report that is normally given under Section 19(1) of the POCSO Act.

"...since there are instances where minors 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," said the division bench comprising Justice N Anand Venkatesh and Justice Sunder Mohan.

Court ordered so in view of the cases involving sexual offence, where the offence leads to pregnancy and the termination of pregnancy becomes an issue.

Court directed that the issue be specifically addressed by the Principal Chief Secretary and a procedure be evolved to strictly comply with the judgment of the Apex Court in X vs. Principal Secretary, Health and Family Welfare Department (2022).

The division bench is monitoring the implementation of provisions of the Protection of Children from Sexual Offences (POCSO) Act and the Juvenile Justice Act on the judicial side.

Regarding the Standard Operating Procedure with regard to the medical test to be conducted on the victim girl in sexual offences, the division bench observed that since two finger test and the per-vaginum examination are now completely barred by virtue of the judgment of the Apex Court, therefore, 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.

"...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," added the court. 

Court also discussed the issue of Archaic Potency Test that is done on a routine basis in all cases involving sexual offence.

Court opined 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," said the division bench.

"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," further clarified the bench. 

The matter will be next taken up for further consideration on September 25, 2023. 

Case Title: Kajendran v Superintendent of Police and others