Gujarat High Court
Aastanaben Sattarbhai Jumabhai ... vs State Of Gujarat & 3 on 24 February, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/1084/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 1084 of 2016
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AASTANABEN SATTARBHAI JUMABHAI KAIYADA....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR MM TIRMIZI, ADVOCATE for the Applicant(s) No. 1
MR HK PATEL, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 24/02/2016
ORAL ORDER
1. This Court on February 18, 2016 had passed the following order :
"The petitioner herein is the complainant who lodged First Information Report on 28th January 2016, being CRI15/2016 with Gondal Police Station, Rajkot for the offence punishable under Sections 376, 344, 144 & 506 (2) IPC alleging that the accused Umedbhai Prakashbhai Makwana, on giving false promises to the petitionervictim, developed physical relation which made her pregnant. On 25th November 2015 also, when she realized that she need to get pregnancy Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Feb 28 03:44:31 IST 2016 R/SCR.A/1084/2016 ORDER terminated, by ensuring her to get it terminated, she was taken away from her home and was confined for about two months. This delay has resulted into pregnancy having become of 18 weeks. It is urged by the petitioner that medical termination of pregnancy is permitted, where the length of pregnancy exceeds twelve weeks, but does not exceed twenty weeks; subject to opinion from the registered medical practitioners that continuance of pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical or mental health, or where there is substantial risk that if the child is born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation I to Section 3 of the Medical Termination of Pregnancy Act, 1971 states that where any pregnancy is alleged by a woman to have been caused by rape, the anguish caused to such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Having heard learned advocate Shri MM Tirmizi appearing for the applicant and learned APP Shri HK Patel appearing for the respondentState, in wake of decisions rendered by the Apex Court and followed by this Court, in the considered opinion of Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Feb 28 03:44:31 IST 2016 R/SCR.A/1084/2016 ORDER this Court, the applicant is required to be referred to the Medical Superintendent, Civil Hospital, Rajkotrespondent no. 3 herein and a detailed medical report needs to be called for before permission of termination of pregnancy is acceded to. And therefore, the respondent no.3Medical Superintendent, Civil Hospital, Rajkot is hereby directed to cause to examine the applicant by a panel of seniormost Gynecologists of the Hospital. The aforesaid team of doctors shall examine the victim on 22nd February 2016 and after an interaction with her, shall give in writing opinion at the earliest, bearing in mind the advanced stage of pregnancy and her physical and mental condition, whether there will be a substantial risk to her life, if the child was born, or that the child would suffer from such physical or mental abnormalities as to be seriously handicapped.
For the purpose of examination of the applicant, as ensured by her learned advocate, she should remain present before the Medical Superintendent, Civil Hospital, Rajkot on 22nd February 2016 at 10:00 am. A copy of this order shall be furnished to the learned advocates appearing for the respective sides for follow up action.
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Intimation of this order shall be sent to the Medical Superintendent of Civil Hospital, Rajkot forthwith by the learned APP Shri HK Patel appearing for the respondentState.
Let this matter appear on 24th February 2016 with the report of the experts, which should be provided in a sealed cover. Direct service permitted forthwith."
2. The report of the Head of the Department, Department of Obstetrics and Gynaecology, P.D.U. Medical College and Hospital, Rajkot, addressed to the office of the Public Prosecutor, High Court of Gujarat, Ahmedabad, is tendered before this Court in a sealed cover, wherein after thorough assessment, the following details have been provided :
"1. From her history and clinical examination it is stated that she is conscious, cooperative and well oriented to time, place and person.
2. From her history and clinical examination she is having 4.5 months of amenorrhea which is corresponding to clinically 18 to 20 weeks of pregnancy.
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3. She is referred to Radiologist for favour of Ultrasonography to know the exact gestational age and fetal viability. As per the Radiologist's opinion Dr.Maulik & Dr.Jagruti she having single live intra uterine fetus with mean gestational age of 19 weeks and 3 days.
4. She is referred to Psychiatrist, Dr.Mukesh Patel who has opined as follows. As per observation she is in sound state to take decision about her unwanted pregnancy.
5. She is referred to Physician Dr.P.J. Dudhrejia, who has examined her cardio respiratory status and her blood reports i.e. Hemoglobin Blood group and urine reports which are within normal range.
6. Hence, considering above panel of doctors opinion it can be stated that she is at present having pregnancy which under MTP Act can be terminated and this may not pose any injury to the mother or the fetus.
7. It is advisable that since pregnancy is 19 weeks and 3 days on 22nd of Feb 2016 she is to be considered urgently within 4 days to report back to our institute for the termination of pregnancy procedure with Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Feb 28 03:44:31 IST 2016 R/SCR.A/1084/2016 ORDER required documents and on consent of the victim and her guardians."
3. Bearing in mind the decision rendered by the Apex Court in the case of Chandrakant Jayantilal Suthar and another v. State of Gujarat, while dealing with Special Leave to Appeal (Criminal) No.6013 of 2015, arising out of Special Criminal Application No.4255 of 2015, so also a decision of the Apex Court in the case of Suchita Srivastava and another v. Chandigarh Administration, reported in 2009 (3) GLH 468, this Court needs to keep in mind the 'best interests' test of the victim. After careful inquiry of the medical opinion as also bearing in mind the social circumstances faced by the victim, who is the victim of a rape, this Court's decision is guided by the interest of the victim rather than those of the society and the guardians of the victim.
4. Even otherwise, the provisions of section 3 of the Medical Termination of Pregnancy Act, 1971 provides for termination of pregnancy by Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Feb 28 03:44:31 IST 2016 R/SCR.A/1084/2016 ORDER registered medical practitioners. It provides that the continuance of pregnancy would involve a risk to the life of a pregnant woman or of grave injury to her physical or mental health, or there is a substantial risk that if a child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Such pregnancy as per Explanation 1 to section 3 provides 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, it is being directed that the team of doctors, who has given the opinion shall on consulting the petitioner decide the termination of foetus she is carrying. As can be noted from the report that the termination of pregnancy, according to the doctors, would be immediately required on once again verifying from the victim if she desires to go through the process of abortion without further waiting for any communication or order.
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5. The doctors shall undertake the exercise of termination of pregnancy forthwith. It is also further directed that the copy of this order be forwarded to the Medical Superintendent, Civil Hospital, Rajkot, forthwith by the Registry of this Court and even a copy of this order be provided to the learned Additional Public Prosecutor Shri H.K. Patel, for them to carry out termination of pregnancy following all the scientific practices and guidelines available. The concerned doctor is also directed to take the sample of tissue from the foetus for DNA analysis/identification and hand over the same to the Investigating Officer, Gondal Taluka Police Station, who in turn shall forward it to the Forensic Science Laboratory for DNA analysis/ identification as per due procedure prescribed. The remaining abortus also be handed over to the Investigating Officer, Gondal Taluka Police Station for carrying out necessary scientific tests.
Let the report be sent to this Court for Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Feb 28 03:44:31 IST 2016 R/SCR.A/1084/2016 ORDER its appraisal and for knowing the wellbeing of the petitionervictim. For this limited purpose, let the matter appear on March 01, 2016. Direct Service is permitted, TODAY. A copy of this order also be provided to the learned Additional Public Prosecutor forthwith.
(MS SONIA GOKANI, J.) Aakar Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Feb 28 03:44:31 IST 2016