The abortion of the girl is decided by her and her parents. Compensation is given by the state or is taken by the accused too.
Even after the abortion it can be proven that the aborted child was of the accused. That is ordered by the presing judge.
How a Criminal proceeding happens in a POSCO court
Hi Sir, In a Rape case of a underage girl(16.5 years old), in which accused is booked under charges of IPC 376, POSCO 3 and 4. The girl is 18 weeks pregnant. Today, after ~14 days of FIR(13/5/2020), her statement was recorded in front of lady magistrate under section 164 crpc. Whose permission is required for abortion and DNA test of fetus with the Accused such that after abortion there is no loophole for the accused to deny that baby isn't his. and for protection we have already filed the complaint with NCPCR and CWC. Can we expect some compensation for the girl under DLSA?
Asked 5 years ago in Criminal Law
Religion: Hindu
17 Answers
HC has powers to give directions to terminate the pregnancy. Yes pocso court has powers to award compensation for victim
1. Without the permission of high court thd pregnancy can not be terminated.
2. So the victim will have to first file writ petition seeking such permission and in the same proceeding she can ask for preservation of DNA sample of the fetus for its sampling with the accused person.
3. In the criminal case itself the court while awarding sentence after conviction can grant appropriate sum of compensation.
May seek permission from the trial court for abortion and DNA test.
Apply to same trial court for compensation.
You can claim compensation in civil court separately.
Since pregnancy is due to rape you can apply directly to govt approved district level committee for grant permission for abortion.
Or alternatively get opinion of two registered medical practioner regarding abortion is to protect injury to mental health because of rape and if both doctor advise it is so necessary, obtain a certificate to this effect and with this victim can get abortion in any private or govt Medical Service places.
Do this before pregnancy exceeds 20 weeks. After that you shall need approval of court .
- Under Section 3(2)(b) of the Medical Termination of Pregnancy (MTP) Act prohibits abortion of a foetus after 20 weeks of pregnancy.
- Further, Section 164A of the CrPc , mandates collection of human material from the victim of a rape case for forensic testing.
- And further, Section 53 of the CrPc , authorises a police officer to get the assistance of a medical practitioner in examining the person accused of rape, in good faith for the purpose of the investigation.
- Further, the CrPc also authorises , the I.O. of the case to collect DNA sample from the body of the accused and the victim with the help of medical practitioner.
- Hence, the family member of the minor should move an application for passing an order for the same under the supervision of the I.O. of the case , before the same court where her statement was recorded under section 164 CrPc.
- As per Supreme Court judgement , A minor victim would be entitled to a minimum sum of Rs 4 lakh as compensation , and further In case of death followed by rape or gang-rape, the victim or kin will be entitled to a sum of Rs five lakh, extending upto Rs 10 lakh.
- Hence for getting compensation of 4 lac rupees, one should approach National Legal Services Authority (NALSA),
You need court permission for abortion of foetus and DNA test
2) The Rajasthan High Court reiterated that a woman’s “reproductive choice” is a fundamental right, and asserted that the fundamental right of a child rape victim to abort her pregnancy “heavily outweights” the right of the foetus to be born.
3)
The bench ordered the state government to frame guidelines for timely medical and legal assistance for pregnant rape victims. It ordered that any abortion application by her must be processed by the authorities within 3 days and if a court considers the case, then consent from the girl’s guardian should be considered sufficient.
The court also directed that if the pregnancy crosses the 20 week threshold, as per the Medical Termination of Pregnancy Act, 1971, the District Legal Services Authority should assist the girl in approaching the high court for an abortion
Respected sir/mam....
As above mentioned by you in the question the girl is minor and for that DLSA will surely grant compensation apart from that you can seek... Compensation from the accused at the time of final judgement in which court have power tu to grant compensation in favour of that girl apart from punishment provided to that accused...
Thank you
DLSA m8ght not give any compensation, but try it.
DNA permission can be taken from the Sessions judge of the district where this case is going on
No permission required till 20 weeks of pregnancy. Not sure about DNA test can be done without child being born. Consult doctor on this.
Rspe victim entitle to compensation and abortion do not barred her entitlement of abortion.
Go ahead with doctor advice
1. Permission of court is required. Under Section 3 of the Medical Termination of Pregnancy Act, 1971, a pregnancy exceeding 20 weeks cannot be terminated except with the consent of the pregnant woman.
2. The medical board will be constituted on the orders of the court, and if the board states in its report that there is no threat to the life of the girl in case of abortion, the court will allow abortion.
3. If protection is not awarded by NCPCR then protection petition may be filed in the High Court.
It depends from case to case.
Hi
1) You should approach the POSCO judge for permission of aborting the child and also obtain permission for conducting the DNA test on the foetus.
2) For claiming compensation,the victim can claim compensation under 357 A either through the police station or directly to the DLSA along with Form ‘I’ , a copy of the First Information Report (FIR).
3)DLSA has powers to grant both interim and final compensation to the victim from Women Victims Compensation fund.
Hope this information is useful.
1. DNA test can be done with the permission of sessions court that is special posco court and still it's 18 weeks so abortion can be done without permission of court.
2. The authorities may grant some compensation and relief.
Dear querist,
If the pregnancy crosses the 20 week threshold, as per the Medical Termination of Pregnancy Act, 1971, the District Legal Services Authority should assist the girl in approaching the high court for an abortion.
In the various decided case, by the High courts and Supreme court they have decided that Minor rape victim’s right to abort outweighs foetus’ right to be born". Therefore, the application for abortion is to be made before the POSCO courts. Which is dependent upon the pregnancy time period and other factors.
If the trial has not begun till now, you can approch the High court for the immediate order of abortion and also for an order conducting the DNA test of the accused.
You can contact me for consultation or on linkedin, in case you need my assistance in the matter.
https://www.linkedin.com/in/yuganshu-sharma-655091183/
Regards,
The child if minor, her parents may decide about getting her aborted after which they can submit the medical records before magistrate to confirm this.
However a DNA test of the fetus may be obtained and secured post abortion in order to establish the parenthood of the biological father.
You can apply for compensation from the concerned trial court itself through the public prosecutor
1. You should make an application for special judge POCSO act for abortion of minor rape victim and DNA sampling of fetus.
2. If trail judge refuse to grant permission then you should approach High Court for getting the permission.
3. For compensation you should approach DLSA and make application for compensation under rehabilitation of Victims scheme of state govt.
Court permission required for Abortion.
In order to start the process of requesting a DNA test, the parent of the child needs to get in touch with a lawyer who can draft and submit the proper petition to the court. Either the mother or the father of the child can begin the process of establishing paternity
The parents should submit the application for compensation before DLSA officials and requested them to initiate the proceedings under the Victim Compensation Scheme.
