Gujarat High Court
Bhavnaben W/O. Bhagwanbhai Kalaji ... vs State Of Gujarat on 26 November, 2019
Author: S.H.Vora
Bench: S.H.Vora
R/SCR.A/9960/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9960 of 2019
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BHAVNABEN W/O. BHAGWANBHAI KALAJI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS URMILA N DESAI(5609) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 26/11/2019
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 petitioner - victim girl aged 22 years under Article 226 of the Constitution of India read with the provisions of the Medical Termination of Pregnancy Act, 1971.
3. On 19.11.2019, this Court passed the following order :-
"Notice returnable on 22.11.2019. Learned APP waives service of notice on behalf of the respondent - State.
Meanwhile, let the petitioner - Ms.Bhavnaben w/o. Bhagwanbhai Kalaji Parmar be examined by Page 1 of 6 Downloaded on : Wed Nov 27 00:48:12 IST 2019 R/SCR.A/9960/2019 ORDER the empaneled Doctors at Civil Hospital, Ahmedabad. 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 victim of rape and she 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 19.11.2019, learned APP has received report of panel of Doctors dated 25.11.2019, Department of Obstetrics and Gynecologists Department, GMERS Medical College, Sola, Ahmedabad addressed to the Deputy Registrar of this Court. The said report is ordered to be taken on record. The victim girl viz. Ms. Bhavaben w/o. Bhagwanbhai Kalaji Parmar is examined by two panel of Doctors of GMERS, Medical College, Sola, Ahmedabad viz. Dr. Nidhi Patel and Dr.Vijay Kansara.
5. Panel of Doctors in terms opined as under :-
(1) The victim Bhavnaben w/o. Bhagwanbhai Kalaji Parmar aged 22 years is pregnant. The gestational age of pregnancy is 19 wk 1 day carrying twins (according to USG dated 22/11/19).
(2) MTP can be carried out as per MTP law as the weeks of pregnancy is below 20 weeks. She will be approaching 20 weeks on 28/11/19.Page 2 of 6 Downloaded on : Wed Nov 27 00:48:12 IST 2019
R/SCR.A/9960/2019 ORDER
(3) As the gestational age is before the age of viability,
there is no question of child survival and fetal rights.
(4) As per the Psychiatrist reference :-
Counselling done Patient can be taken for MTP.
As patient does not wish to continue her current pregnancy, she wishes to get termination. Diagnosis - Mild depression with anxious distress and prescribed medication for it.
(5) The victim is medically fit for MTP as per opinion given by Physician.
(6) MTP can be performed with usual risk associated with such type of case. As she is carrying twin pregnancy, the risk is higher compared to single on pregnancy.
6. This Court has heard both the sides and considered the opinion / report duly signed by Assistant and Associate Professors / Panel of Doctors, Obstetrics and Gynecologists Department, GMERS Medical College, Sola, Ahmedabad submitted by them through learned APP to the Deputy Registrar of 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 22.11.2019, pregnancy of 19 weeks 1 day 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 Page 3 of 6 Downloaded on : Wed Nov 27 00:48:12 IST 2019 R/SCR.A/9960/2019 ORDER 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-126 of 2019 registered with Kathlal Police Station for the offence punishable under sections 494, 498(A), 120(B), 34, 376(2), 376(2)(f), 376(2)(k), 376(2)(n) and 376(D) of IPC.
10. The victim is already carrying about 19 weeks 1 day of pregnancy with specific report / opinion of panel of Doctors that as gestational age is before the age of viability there is no question of child survival and fetal rights and MTP can be performed with usual risk associated with such type of case and as she is carrying twin pregnancy, the risk is higher compared to single on pregnancy. No doubt, pregnancy is below 20 weeks, but considering the provisions of Section 5 of the Medical Termination of Pregnancy Act, 1971 and opinion of two registered Medical Practitioners, termination of pregnancy is immediately necessary to save mental and physical health of the victim.
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 Page 4 of 6 Downloaded on : Wed Nov 27 00:48:12 IST 2019 R/SCR.A/9960/2019 ORDER 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 GMERS Medical College, Ahmedabad forthwith by the learned APP. Copy of this order shall also be sent by the Registry to the Assistant Professor, Obstetrics and Gynecologists Department, GMERS Medical College, Ahmedabad.
13. Since the pregnancy of victim is below 20 weeks as of now, the Court directs three senior most Gynecologists of Civil Hospital, Ahmedabad to examine the victim girl and also by psychologist attached to the Government Medical College, Ahmedabad. The said team of Doctors shall examine the victim Ms.Bhavnaben w/o. Bhagwanbhai Kalaji Parmar 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 petitioner - victim girl to apply for interim compensation before the Chairman, District Legal Services Authority, Ahmedabad 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.
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15. With above directions, present petition stands disposed of. Direct service today is permitted.
(S.H.VORA, J) SATISH Page 6 of 6 Downloaded on : Wed Nov 27 00:48:12 IST 2019