Gujarat High Court
Manubhai Ramjibhai Sodarva vs State Of Gujarat on 4 May, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/4291/2022 ORDER DATED: 04/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4291 of 2022
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MANUBHAI RAMJIBHAI SODARVA
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2,3,4,5,6
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 04/05/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. Petitioner has preferred this petition seeking issuance of writ of habeas corpus directing the respondents to produce the Corpus aged 16 years and 6 months. On the first returnable date, the Corpus is brought before this Court. She had shown her willingness to join her parents, who are also present before this Court. They are made to understand that she will not be married of anywhere before she turns 18 years of age and she will also pursue her formal studies or vocational guidance training.
2. Her medical examination is completed. The Statement under Section 164 of the Code of Criminal Procedure is also recorded.
Page 1 of 7 Downloaded on : Thu May 05 20:55:46 IST 2022R/SCR.A/4291/2022 ORDER DATED: 04/05/2022 2.1. According to the Police Officer, the Corpus is carrying the pregnancy of three days. Considering the provisions of termination, she being the minor and this being a case of alleged rape and the offences are under the provisions of POCSO Act, it will be in the fitness of the things to direct the termination of pregnancy. While so doing, it is reminded that this Court in number of matters had rendered the decision for termination of pregnancy looking to the betterment of the corpus. One such interim order is passed by this Court in Special Criminal Application No. 632 of 2022 dated 104.02.2022:-
"4. Considering the provisions of Termination of Pregnancy Act, which provides for such termination when the person is victim of rape, she being extremely young and a victim of rape and victim under POCSO Act, we deem it appropriate to consider such request.
5. This Court in case of Maltidevi Gambhirsingh Sahani vs. State of Gujarat [Special Criminal Application No. 4921/2020] in case of victim of rape had directed the process of termination of pregnancy to be undertaken.
5.1. Section 3 of the Medical Termination of Page 2 of 7 Downloaded on : Thu May 05 20:55:46 IST 2022 R/SCR.A/4291/2022 ORDER DATED: 04/05/2022 Pregnancy Act, 1971 provides that where length of pregnancy does not exceed 12 weeks and where the length of pregnancy exceeds 12 weeks, but, not 20 weeks and if, not less than two registered medical practitioners are of the opinion, formed in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury, physical or mental health or there is a substantial risk that, if, the child were born, it would suffer from such physical or mental abnormalities, the termination can be directed. However, the very section in the explanation 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. Sub-section (3) of Section 3 of the Act also provides that in determining, whether the continuance of pregnancy would involve such risk of injury to the health, as is mentioned in sub- section (2), account may be taken of the pregnant woman's actual or reasonable foreseeable environment.
5.2. This Court in case of Rekhaben vs. State of Gujarat [2019 SCC OnLine Guj 3239] has discussed Page 3 of 7 Downloaded on : Thu May 05 20:55:46 IST 2022 R/SCR.A/4291/2022 ORDER DATED: 04/05/2022 the 'best interest test' which the Apex Court has given in case of rape victim urging for termination of pregnancy and also her social circumstances, provides that, the Court needs to ascertain the course of action which would serve the best interests of the person concerned. The Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim and the victim's interest alone shall be a guiding factor for the Court and not of any other stakeholders such as guardians or society in general.
"19. As evident from its literal description, the 'Best interests' test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will Page 4 of 7 Downloaded on : Thu May 05 20:55:46 IST 2022 R/SCR.A/4291/2022 ORDER DATED: 04/05/2022 in turn entail some costs. However, that cannot be a ground for denying the excise of reproductive rights. Bearing in mind the decision of the Apex Court and keeping the 'Best interests' test as the parameter, in the opinion of this Court, in the present set of circumstances, careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim, if are considered, this Court is of the opinion that termination of pregnancy requires to be permitted, which is in the best interest of the victim. It is to be noted that the team of Doctors have on 18th February 2016 submitted report and opined, thus - After reviewing history and detailed examination, blood reports and sonography done at Civil Hospital, Sola, our opinion is as follow : Psychiatric evaluation suggest patient is not suffering from any psychiatric disorder and patient is psychiatrically fit. Considering involuntary pregnancy and unwillingness of victim to continue pregnancy her mental trauma may increase if pregnancy continues. Anesthetic evaluation suggest that slightly more risk of anesthesia if pregnancy will terminated at present. Medical and surgical evaluation suggest that if proper nutrition and Page 5 of 7 Downloaded on : Thu May 05 20:55:46 IST 2022 R/SCR.A/4291/2022 ORDER DATED: 04/05/2022 care is maintained through feeding jejunostomy, there is no physical harm in continuation of pregnancy or termination of pregnancy at present. There is same or slight increase risk to victim if pregnancy is terminated before term than physiological normal delivery at term. As per MTP Act, termination of pregnancy can be done up to 20 week of pregnancy. At present, patient had 24 week live pregnancy."
2.2. Let the termination be carried out, once the team of doctors, minimum two in number, is of the opinion that it is feasible to so do it, without further reference to this Court. Unless otherwise opined by the medical experts needing indulgence of this Court, the process of termination shall be expedited and scientifically collected tissues be handed over to the police officer present which shall also be sent for DNA test. Once sent to the FSL, the report shall go to the concerned Court conducting the trial under the POCSO Act for the same to be considered as scientific evidence.
2.3. The report of termination shall be placed before this Court.
3. For compensation to the victim under the Gujarat Victim Compensation Scheme, 2019 let the same be done by the Chairperson of District Legal Services Authority, Surat in Page 6 of 7 Downloaded on : Thu May 05 20:55:46 IST 2022 R/SCR.A/4291/2022 ORDER DATED: 04/05/2022 consultation with the Member Secretary, Gujarat State Legal Service Authorities. The amount of compensation shall be fixed deposited in the name of the victim where her mother can be a joint account holder and such amount shall be used for her further studies and welfare. Any amount if needed for pursuing her studies or for vocational training, the interest can be parted with, for which, the parents can approach the District Legal Service Authority.
4. Let her be given the legal aid bearing in mind the directions given by the Apex Court in case of Delhi Domestic Working Women's Forum v. Union of India & Ors. reported in (1995) 1 SCC 14 as the legal assistance will be necessary right from the time the FIR is lodged in this respect till completion of the trial.
5. The counseling shall be provided to the victim from a recognized counselors or institute of counseling which shall be arranged by District Legal Service Authority.
6. Petition is disposed of. However, in the event of any difficulty, parties are permitted to revive the petition.
(SONIA GOKANI, J) (MAUNA M. BHATT,J) NAIR SMITA V. Page 7 of 7 Downloaded on : Thu May 05 20:55:46 IST 2022