KOCHI: Kerala High Court has suggested that the State and Central governments consider enacting appropriate legislation or amending existing laws to mandate the preservation of the foetus in Medical Termination of Pregnancy (MTP) cases involving minor victims where offences under the Protection of Children from Sexual Offences (POCSO) Act are established.
"Until such legislation is in place, to protect the interests of minor victims and to prevent the accused from evading trial due to the absence of crucial evidence, a directive shall be issued to the Director of the Health Department, State of Kerala, to communicate this order through a circular to all doctors in the State," stated Justice A. Badharudeen.
"The circular shall mandate the preservation of the fetus of minor victims and prohibit its destruction. If a hospital intends to dispose of the fetus, the doctors must obtain written permission from the Investigating Officer or the District Police Superintendent concerned," Justice A. Badharudeen added.
The court issued the order while quashing a case against Dr. Hafeez Rahman PA, Chairman and Medical Director, Sunrise Hospital, Kakkanad for aborting the pregnancy of a victim illegally and allegedly destroying the fetus without being preserved for investigation.
According to the petitioner, he reported the matter to the police on April 13, 2021. So he has no intention to screen the offender since he rightly reported the crime.
The MTP was done on the next day. However, the police sent a letter to the hospital only on April 16, 2021, informing that if the MTP of the victim was carried out, the fetus was to be preserved for DNA examination.
The petitioner reported the crime without much delay, but he did not preserve the fetus as there is no legal mandate to preserve the fetus voluntarily by the doctor and such preservation would be done, only when there was instruction.
To a query regarding guidelines in this regard, the prosecutor informed the court that there are no standing rules or laws or guidelines, which would prescribe automatic preservation of fetuses in cases of MTP involving minor victims.
The court said that when there is no mandate in the form of law or rule, the doctor, who bonafide did MTP and destroyed the fetus, could not be held as a person, who caused the disappearance of evidence of the offence to screen the offender. Hence, the prosecution against the Doctor is unwarranted.
The court also directed the Registry to forward a copy of the order to the law secretaries of the State and Central governments for taking further steps.