Dimpalben Mohanbhai Luhar Thro ... vs State Of Gujarat on 20 January, 2020

[Cites 7, Cited by 0]

Gujarat High Court

Dimpalben Mohanbhai Luhar Thro ... vs State Of Gujarat on 20 January, 2020

Equivalent citations: AIRONLINE 2020 GUJ 22

Bench: S.H.Vora

        R/SCR.A/296/2020                                  ORDER



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 296 of 2020
==========================================================
  DIMPALBEN MOHANBHAI LUHAR THRO MOHANBHAI SHANKARBHAI
                           LUHAR
                            Versus
                     STATE OF GUJARAT
==========================================================
Appearance:
MR ANVESH V VYAS(5654) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MR MANAN MEHTA, APP (2) for the Respondent(s) No. 1
==========================================================
 CORAM: HONOURABLE MR.JUSTICE S.H.VORA

                           Date : 20/01/2020

                            ORAL ORDER

1. With the consent of learned advocate for the applicant and learned APP, present application is taken up for final disposal, in view of short but serious issue involved in the petition.

2. Present petition is preferred by the father the victim girl under Article 226 of the Constitution of India read with the provisions of the Medical Termination of Pregnancy Act, 1971.

3. On 15.01.2020, this Court passed the following order :-

"Notice returnable on 20.01.2020. Learned APP waives service of notice on behalf of the respondent - State.

Meanwhile, let the victim minor - Dimpalben Mohanbhai Luhar be examined by the empaneled Doctors at Civil Hospital, Palanpur. She should be admitted immediately and medical examination shall be carried out to let this Court know as to whether termination of pregnancy is medically feasible considering the fact that she is allegedly Page 1 of 5 Downloaded on : Mon Jan 20 21:56:11 IST 2020 R/SCR.A/296/2020 ORDER victim of rape and her guardian inclines to terminate her pregnancy. Doctors concerned shall follow settled guidelines to know her mental and psychological preparedness.

Copy of this order be provided to learned APP forthwith. Direct service is permitted today."

4. Pursuant to the order dated 15.01.2020, learned APP has received report of Chief District Medical Officer cum Civil Surgeon, Banaskantha General Hospital, Palanpur dated 18.01.2020 addressed to this Court. The said report is ordered to be taken on record. The victim girl viz. Dimpalben Mohanbhai Luhar is examined by three panel of Doctors of General Hospital, Palanpur viz. Dr. Asim Musa, Dr. M.H.Gadhavi and Dr. Samyaben Mansuri.

5 The panel of Doctors in terms have opined as under :-

1. Dr.Asim Musa Psychiatric, BMCRI, Palanpur opinion

- At present patient (victim) does not have any psychological problem / issue reported or noted. No past H/O psychological issue / problem reported too. Patient is intellectually and emotionally sound. She is able to understate nature and consequence of act and further consequence of the act for MTP.

2. Empaneled of Gynecologist opinion -

1. Dr. H.M. Gadhavi Gynecologist, G.H.Palapur

2. Dr. Samyaben Mansuri BMCRI, Palanpur Patient is examined and sonography done for estimation of gestational age, so according to USG reports, gestational age is 12 wks 4 days on dt.

1/01/2020 and termination of pregnancy is medically feasible."

Page 2 of 5 Downloaded on : Mon Jan 20 21:56:11 IST 2020

R/SCR.A/296/2020 ORDER

6. This Court has heard both the sides and considered the opinion / report dated 18.01.2020 of Chief District Medical Officer cum Civil Surgeon, Banaskantha General Hospital, Palanpur submitted to this Court.

7. Learned advocate for the petitioner submitted that the termination of pregnancy is permissible upto 20 weeks and at the time of examination by concerned Doctors on 01.01.2020, pregnancy of 12 weeks and 4 days is noted.

8. Learned APP has urged the Court that the Court may in given set of circumstances of case, issue direction for termination of pregnancy. However, the tissues from foetus may be directed to be handed over for the purpose of DNA sampling in scientific manner to the Investigating Officer.

9. On hearing both the sides, this Court has noticed that the victim is alleged to have been abducted by the accused, named in the FIR being C.R.No.I-52 of 2019 registered with Dhanera Police Station for the offence punishable under sections 363, 366, 376(2) of IPC and under the provisions of Protection of Children from Sexual Offences Act, 2012.

10. The victim is already carrying about 12 weeks of pregnancy with specific report / opinion of panel of Doctors that termination of pregnancy is medically feasible. No doubt, pregnancy exceeds 12 weeks, but considering the provisions of Section 5 of the Medical Termination of Pregnancy Act, 1971 and opinion of registered Medical Practitioners, termination of pregnancy is immediately necessary to save mental and physical health of the victim.

Page 3 of 5 Downloaded on : Mon Jan 20 21:56:11 IST 2020

R/SCR.A/296/2020 ORDER

11. At this stage, the Court has considered the decision wherein 'the best interest' theory for the victim girl is settled and considering her trauma, mental agony and possibility of social ostracism, the Court is of opinion that when the medical opinion issued by the Panel of Doctors is taken into consideration, let termination of pregnancy be carried out at the earliest with medical facilities available to the victim girl and on ensuring proper care in pre-termination and post termination period. The Doctors shall take necessary tissue samples from the DNA identification by following scientific practice for DNA identification and such samples shall be handed over to the Investigating Officer concerned.

12. Intimation of this order shall be given to the Chief District Medical Officer cum Civil Surgeon, Banaskantha General Hospital, Palanpur forthwith by the learned APP. Copy of this order shall also be sent by the Registry to the Civil Surgeon, Banaskantha General Hospital, Palanpur.

13. Since the pregnancy of victim exceeds 12 weeks as of now, the Court directs three senior most Gynecologists of Civil Hospital, Palanpur to examine the victim girl and also by psychologist attached to the General Hospital, Palanpur. The said team of Doctors shall examine the victim Ms.Dimpalben Mohanbhai Luhar and after having interaction with her, undertake the procedure of surgery on urgent basis along with other required expert Doctors like Physician, Anesthetic etc., if otherwise, there is unanimity amongst the Doctors to the effect that such termination would be carried out safely,

14. Liberty is reserved in favour of the victim girl to apply for interim compensation before the Chairman, District Legal Page 4 of 5 Downloaded on : Mon Jan 20 21:56:11 IST 2020 R/SCR.A/296/2020 ORDER Services Authority, Banaskantha at Palanpur and on such request being made by the victim in this regard, the concerned Chairman, District Legal Services Authority after following prescribed procedure shall award interim compensation in accordance with law.

15. With above directions, present petition stands disposed of.

Direct service today is permitted.

(S.H.VORA, J) SATISH Page 5 of 5 Downloaded on : Mon Jan 20 21:56:11 IST 2020

Unlock Advanced Research with PRISMAI

Gujarat High Court