Signature Of A Minor Does Not Supply The Consent Required Under MTP Act: Delhi High Court
The Court held that the Doctor's alleged response "marwaoge kya ise 20 saal karo" on being shown victim's true date of birth discloses prima facie failure to report under Section 19 POCSO Act.
Justice Purushaindra Kumar Kaurav, Delhi High Court
The Delhi High Court has held that a minor's signature on a hospital consent form, even if genuine, is incapable in law of constituting the consent contemplated under Section 313 IPC, since Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971 mandates the written consent of the minor's guardian. Refusing to quash criminal proceedings against a doctor, the Court held that termination of a sixteen-year-old rape survivor's pregnancy without verifying her age or obtaining the guardian's consent, along with the prescribed Form I and Form C under the MTP Rules, 2003, warranted trial.
It held that where the prosecution's case is that the doctor was shown the victim's true date of birth on an admission slip and allegedly responded "Marwaoge kya ise 20 saal karo", which constitutes a case of actual disclosure rather than mere constructive or inferred knowledge, sufficient to sustain a prima facie charge of failure to report under Section 19 read with Section 21 of the POCSO Act.
A Single Judge Bench comprising Justice Purushaindra Kumar Kaurav observed, “The MTP Act does not regard a minor as capable of independently consenting to termination, but the statute itself declares it insufficient. In the present case, no guardian consent was ever sought because no one at TMC turned their mind to whether one was required. The signature of a minor does not supply the consent the MTP Act mandates…Authenticity of the signature and validity of the consent are two different questions. A genuine signature by a person legally incapable of giving valid consent on her own does not become valid consent merely because it is genuine. On the footing that the victim was, in fact, a minor, her signature on the TMC’s form, however authentic, did not constitute the consent the law required, in the absence of any guardian consent that was never sought”.
Advocate Faraz Maqbool appeared for the petitioner and Shubhi Gupta, APP appeared for the respondent.
In the matter, an FIR was registered at PS Saket after the prosecutrix alleged she was intoxicated, sexually assaulted, and impregnated by the main accused. On July 26, 2019, accompanied by a co-accused posing as her aunt, she was examined by the Petitioner at Bhatia Medical Centre and referred to Talwar Medical Centre, where the Petitioner performed a termination of pregnancy.
Initial records, including the victim's MLC, her Section 164 CrPC statement, and two Section 161 statements from 2019, contained no allegations against the Petitioner.
In a February 2020 protest petition and a November 2020 supplementary statement, the victim alleged she filled out an admission slip noting her real birth date (September 3, 2003). She claimed that upon seeing this, the Petitioner instructed staff, "Marwaoge kya ise 20 saal karo".
During interrogation, the Petitioner admitted that no age or identity proof was obtained and that Form-I (the statutory certified medical opinion) was never completed. The initial chargesheet date December 13, 2019 named three accused persons and listed the Petitioner only as a prosecution witness.
Following the protest petition, the Trial Court ordered further investigation on September 29, 2020, to determine if doctors at Talwar Medical Centre colluded with the main accused or failed to report the minor's case under Section 19 of the POCSO Act.
A supplementary chargesheet (February 19, 2021) subsequently arraigned the Petitioner under Sections 313 and 201 IPC and Section 7 of the MTP Act. On July 31, 2021, the Trial Court took cognizance, added Section 21 of the POCSO Act, and summoned the Petitioner, who was later granted bail.
“The supplementary chargesheet does not allege that the petitioner failed to ask; it alleges that she was shown the answer, in the victim’s own handwriting on the admission slip, and is recorded as having responded, “Marwaoge kya ise 20 saal karo.” If that allegation is accepted, it is not a case of inferred or constructive knowledge eat all rather it is a case of disclosure, of exactly the kind that placed the doctor in Dr. Maroti (supra) and the doctor in Dr. Ditto Tom P. (supra) outside the protection the law extends to the deceived and within the liability the law imposes on the informed. Additionally, specific, first-hand attribution of a verbal instruction to falsify prosecutrix’s recorded age is qualitatively different from the generalised suspicion, retrospective inference, or bare failure-to-investigate”, it noted further.
The Court noted that the 70-day delay between the termination and the FIR was "the very harm Section 19 of the POCSO Act was written to prevent". On Section 313 IPC, it ruled that a minor's signature alone cannot substitute for required guardian consent, as signature authenticity and legal consent are distinct.
Cause Title: Dr. Poonam Mishra v. State of NCT of Delhi & Anr. (Neutral Citation: 2026:DHC:6344)
Appearances:
Petitioner: Faraz Maqbool, A Sahitya Veena and Deepshikha, Advocates.
Respondent: Shubhi Gupta, APP, with SI Rahul Lamba, PS Saket, for the State.