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Case Name | Jocob George(vs)State of Kerala |
Citation | A.I.R 1988 S.C.2127 |
Quorum | HANSARIA B.L, SAHAI R.M |
Count Name | Supreme Court |
Appellant | Jocob George |
Respondent | State of Kerala |
By: Sivarjun Saripudi,
SVD Siddhartha Law College
Background or Facts:
· Thankamani was married to Sathyam. After one and half years, they gave birth to their first “son”. After six months from birth of first son, Satyam deserted the Thankamani, later because of reconciliation thankamani rejoined with satyam.
· Again, Thankamani become pregnant for second fire here, Satyam continued to insult & ill threat thankamani in energy matter. Due to the bad behaviour of satyam towards thankamani, that she doesn’t want to carry the second preganancy.
· She decided to go for approach.
· Her mother and brother-in-law admitted in clinic (hospital being run by the appellant in nilambur, where abortions were being done.
· On 15-1-1987, the appellant has done. The abortion to thankamani at 10:00 pm on that day. Here, the doctor charged a fee of Rs.600 for abortion.
· After the abortion, thankamani became unconscious. On 16-1-1987, at 5:00 am, she became conscious. She asked for a glass of water, but her mother gave her a cup of tea instead of a glass of water. Thankamani could drink with difficulty and started shivering. Froth come out from her mouth and leads to death of thankamani.
· Her Mother and police gave complaint on Dr.Jocob. Police filed charge sheet on PW1 as mother and PW2 as brother. Here the trial count accused the appellant.
The High Court punished the Dr.Jocob under sec (314/of IPC with 24 years of Imprisonment and fine of Rs.500.
Issues:
1.Whether a woman in this country has a right to go for abortion?
2.What are the provisions regarding abortion contained in IPC, 1860 and the MTP act,1971?
3.Ifso, Whether the consent of the women is a valid offence to the doctor who commit the act of causing abortion and such other consequences followed there by?
Arguments as Respondent:
· Here in Accordance with brief facts started Dr. Jocob (Appellant) has done the abortion to women, by using machinery equipment. Here, he has no knowledge of machinery equipment, for to do abortion.
· Eventhough ,the Dr.Jocob has no knowledge on machinery equipment, he done abortion, it leads to damage of “uterus” of a woman and as well as result to death of that women.
· Here, according to sec (314) of IPC, “A Death caused by act done with an intent to miscarriage, he shall be liable for up to “10 Years of Imprisonment & fine liable to pay fine also.
· Here, Dr.Jocob shall be punishable under sec (314) of IPC.
· Here, we can see the medical negligence from the side of Dr.Jocob
Hedral Negligence is the failure to do what a reasonable healthcare provider would have done under similar circumstances. Reasonable healthcare providers usually follow the national/regional/local standards of care and their own policies and procedures. |
· In India, Abortion is legally valid, when it is subject to satisfy the conditions which are prescribed under medical termination of pregnancy act, 1971. (MTP Act)
The conditions which are following:
Ø According to sec 3(2) of MTP Act, abortion should be done by the medical practitioner, who is authorized by Government.
Ø According to sec (4) of the MTP Act, abortion should be done in a hospital which is established and maintained by the Government.
· And 80, Here the doctor has violated the provisions of MTP Act.
So, Her According to above conditions, Abortion invalid, which is done by the Dr.Jocob (Who is an unauthorized medical practitioner).
· Based on the facts, reasons for abortion to that woman all are invalid reasons.
· According to MTP Act, sec (5) of MTP Act, it allows to termination of pregnancy in following reasons:
Ø Termination of pregnancy is immediately necessary to save the life of the women.
Ø When the pregnancy is caused due to rape
Ø When pregnancy is caused due to its failure of contraceptive's used by married woman.
· Based on the above Reasons, MTP Act allows for termination of pregnancy.
· Although, the women have given, here free consent to doctor for abortion.
Ø Here, we must consider free consent is not a valid defence to Dr.Jocob(Appellant). Because he is a just homeopath (as well as he is not authorized medical practitioner)
Ø Eventhough, he is not an authorized medical practitioner, but he has done Abortion (Termination of Pregnancy) only for seeking monetary benefits from the women.
Appellant Arguments:
· It is clear from the facts of the case that the women (Thankamani) didn't decide to carry second child in the womb at middle of the continuous insult & ill treatment she was facing from her husband, which lead to mental distress.
· According to sec 3(2) medical termination of pregnancy Act “Act allows termination of pregnancy”
Ø To save women’s lives.
Ø Prevent gave injury to her physical or mental health.
Ø Substantial Fetal abnormalities.
· So, here thankamani was will willingly approached Dr.Jocob and she agreed to abort her child.
· In the light of provisions of MTP Act, 1971 and one of the grounds for termination pregnancy being injury to mental health.
· Here, the scope of the act, legalise a women’s right to go for abortion in this country.
· Here, doctors shall not be punishable under sec (314) of IPC. Because women have given free consent to him for abortion.
Decision:
Court held that Appellant liable for 2 years of Imprisonment and fine with Rs.1 Lakh.
Here, appellant must deposit that fine amount in the victim's guardians bank account within six months from today onwards.
Conclusion:
In India, abortion is legal, when they subject to satisfy the conditions which are prescribed in medical termination of pregnancy Act, 1971.
According to Article (21) of Indian Constitution, “No Person shall be deprived of his & liberty except procedure established by law”.
Here, life of a person is not only meaning a person who is existence of a growing fetous in a womb.
So, here we can observe that according to Indian Constitution, abortion is illegal, unless it is accordance to situations.
Commentaires