K.M. Mahima v. State and Ors (2003) - DNA Evidence in Sexual Assault Case

• Bench: J. Kapoor
• Appellant: K.M. Mahima
• Respondent: State and Ors.

Issue

Whether the application for preservation of foetus for conducting the DNA test as a piece of evidence against the respondent-accused is maintainable.

Facts

1. The appellant had moved the magistrate court against the respondent-accused under the provisions of Sections 366A, 376 and 506(2) of the Indian Penal Code, stating that the respondent-accused had raped her.
2. She moved an application before the magistrate to allow her to terminate her pregnancy and also to preserve the foetus for conducting DNA tests in order to provide evidence that she was raped by the respondent.
3. The magistrate dismissed the application with the observation that there is no provision in the aforesaid Act for intervention by the Court as it is the prerogative of the aggrieved party to decide whether she wants to terminate the pregnancy or not.
4. The order of the magistrate was affirmed by the Additional Sessions Judge when the complainant filed a review petition.
5. The matter was now taken up by the Delhi High Court.

Appellant's contentions

1. The appellant challenged the orders given by the magistrate and the sessions court judge denying her the permission to preserve the foetus for conducting DNA tests.
2. The appellant pleaded before the court to allow her to terminate her pregnancy and allow for the preservation of the foetus.
3. The appellant quoted the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971.
4. According to this section, any woman has the option to get the pregnancy terminated by a registered medical practitioner, if it does not exceed 12 weeks.
5. The section also held that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Respondent's contention

1. The respondent-accused quoted the judgment given by the magistrate and the additional sessions judge.
2. The respondent-accused stated that the magistrate dismissed the petition of the appellant on the grounds that there is no provision in the provisions of the Evidence Act for intervention by the Court as it is the prerogative of the aggrieved party to decide whether she wants to terminate the pregnancy or not.
3. The respondent-accused also quoted the view of the additional sessions judge, who had affirmed the view of the magistrate.
4. The respondent-accused requested the court to affirm the views taken up by the magistrate and the sessions court.

Judgment

The court directed the SHO of the concerned police station or any other responsible police officer to accompany the complainant and present her before the Medical Superintendent, AIIMS to get her pregnancy terminated where Board of two medical practitioners would be constituted by the Medical Superintendent on that day itself in accordance with the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971 and preserve the foetus for DNA testing. In case the board finds it impossible to terminate the pregnancy, the court ordered the board to conduct the DNA tests by the prescribed medical modes as a proof of conception by the respondent-accused.

Relevant paragraphs

3. So far as the termination of pregnancy by a woman is concerned, it is governed by Section 3 of the Medical Termination of Pregnancy Act, 1971. According to this any woman has the option to get the pregnancy terminated by a registered medical practitioner, if it does not exceed 12 weeks. If the duration of the pregnancy exceeds 12 weeks but does not exceed 20 weeks such a termination can be done by not less than two registered medical practitioners, who will give the opinion whether the continuance of the pregnancy would involve a risk to the life of the pregnant woman and grave injury to her physical and mental health. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
4. To carry a child in her womb by a woman as a result of conception through an act of rape is not only extremely traumatic for her but humiliating, frightening and psychologically devastating and as a human being she becomes an object of scorn and ostracisation. By not allowing the petitioner from getting her foetus preserved for conducting DNA test as a proof of her having been raped by the accused both the Courts below were not justified. Since the accused was summoned on a complaint filed by the petitioner and not by way of a report lodged with the police, it was all the more essential for the Courts below to allow the petitioner to preserve her foetus for the purpose of conducting DNA test while getting her pregnancy terminated
5. Merely by saying that the petitioner has independent right of getting her pregnancy terminated was not sufficient as her main object was not only to get her pregnancy terminated but also preserve the foetus for conducting DNA test. The time wasted in not giving such direction by the Courts below may cause a situation resulting in injury to the mental health of the complainant as the termination of the pregnancy exceeding 20 weeks may prove dangerous to her life as a consequence of which she would suffer the mental agony and torture of giving birth to a child of rape.