Gujarat High Court
Janak vs State on 7 May, 2010
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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SCR.A/707/2010 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 707 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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JANAK
RAMSANG KANZARIYA (MINOR) THRO'MANJUBEN RAMSANG KANZAR
Versus
STATE
OF GUJARAT & another
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Appearance :
MR
HRIDAY BUCH for the petitioner.
Mr.
Shivang Shukla,Additional Public Prosecutor, for
respondents
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 10/05/2010
ORAL
JUDGMENT
1. Draft amendment is granted. To be carried out forthwith. Rule. Service is waived. With the consent of the learned counsel for the parties, this application is taken up for final hearing.
2. On 28th April 2010, the Court has passed the following order:
1 This petition is filed by Minor Janak Ramsang Kanzaria, through her mother and natural guardian, Smt. Manjuben Ramsang Kanzariya, under Articles 21 and 226 of the Constitution of India, with the following prayers:
{A} Your Lordship be pleased to pass an order quashing and setting aside the impugned order dated 30.3.2010 passed by the learned Additional Sessions Judge, Dhrangadhra, in Criminal Misc. Application No.27 of 2010 (Annexure B ) and further be pleased to grant permission to the petitioner-victim to terminate the pregnancy as the continuance of pregnancy would cause grave injury to the petitioner-victim;
{B} Pending admission hearing and final disposal of this petition, Your Lordship be pleased to grant permission to the petitioner-victim to terminate the pregnancy as the continuance of pregnancy would cause grave injury to the petitioner-victim as pregnancy is of 12 weeks presently, in the interest of justice;
2 The petitioner-victim was born on 15.9.1997, aged about 13 years and the victim of rape while she was of about 12 years, pursuant to which, offence under Sections 376 and 506(2) of the Indian Penal Code came to be registered with Halvad Police Station, District Surendranagar, being C.R. No.I-32 of 2010. The criminal case, so registered above, is being investigated and no final report is submitted as required under Section 173(2) of the Code of Criminal Procedure, 1973 [for short, 'the Code']. When the above complaint is pending for investigation, it has come to the notice of the parents of the petitioner-victim that she is pregnant and, with the consent of the petitioner-victim, they have decided to terminate pregnancy and, therefore, they approached the Medical Practitioner but, in view of the pending criminal case, it was decided by the experts and the Doctor to obtain permission of the Court. Accordingly, Criminal Misc. Application No.27 of 2010 was preferred in the Court of the learned Additional Sessions Judge, Dhrangadhra, with a prayer to grant permission for termination of pregnancy of the petitioner-victim. the learned Additional Sessions Judge, Dhrangadhra, after considering the first information report, medical case papers and the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971 [for short, MTP Act ], observed that, prima-facie, the petitioner-victim has failed to prove the child to be born is likely to suffer any physical or mental disability and, therefore, pregnancy cannot be ordered to be terminated and by order dated 30.3.2010, Criminal Misc. Application No.27 of 2010 came to be rejected. Hence, the present petition is filed with the prayers mentioned hereinabove.
3 Mr. Hirday Buch, learned counsel for the petitioner, submits that Minor Janak is aged about 13 years being her date of birth 15.9.1997 and at the time of birth when offence under Section 376 of the IPC was committed, she was aged about 12 years. The factum about the age of the petitioner-victim was also recorded at the time when the Incharge Medical Officer examined the petitioner-victim and the mother of the minor Janak has filed this petition on behalf of minor Janak with a prayer to issue an appropriate direction and permission to undertake termination of pregnancy of the petitioner-victim. In support of the prayer, the learned counsel for the petitioner has referred to the provisions of Sections 3, 4 and 5 of the MTP Act and emphasized Explanation 1 to Section 3 and submitted 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 submitted that, since Minor Janak, aged about 13 years, is the victim of the offence of rape under Section 376 of the IPC, her case is covered by Explanation I and under clause (a) of sub-section (2) of Section 3 of the MTP Act. The learned counsel for the petitioner has referred to Sections 4 and 5 of the MTP Act about the place where pregnancy can be terminated and non-application of Sections 3 and 4 of the MTP Act in certain cases. He invited the attention of this Court to the following decisions:
[i] (2009) 9 SCC 1, Suchita Srivastava and another vs. Chandigarh Administration;
[ii] 1984 CRI. L.J. 446: Komalavalli vs. C.R. Nair and others [iii] 1996 CRI. L.J.3795 : D. Rajeshwari vs. State of T.N. And others [iv] Oral order dated 28.6.2002 passed by this Court in Special Criminal Application No.386 of 2002:Rekhaben vs. State of Gujarat and submitted that, considering the facts and circumstances of the case, statutory provisions contained in MTP Act, and pronouncement of the Apex Court and the High Courts in this regard, right to life and liberty which includes right to live with dignity under Article 21 of the Constitution of India, the impugned order of the Court below deserves to be quashed and set aside on the ground that no reason is assigned qua Explanation 1 to Section 3 of the MTP Act. It is further submitted that the Court below has failed to appreciate the fact about continuance of pregnancy would cause and constitute a grave injury to the mental health of the pregnant woman coupled with the fact that bearing and rearing of a child in the womb would create a great mental agony of the victim for her entire life and may invite other socio-economic problems.
4 Learned APP has submitted that the age of minor is verified by the Registered Medical Practitioner/Incharge Medical officer, which appears to have been correct as recorded in the first information report. He has further submitted that the Civil Hospital at Surendranagar run and managed by the Department of Health, Government of Gujarat, is equipped to undertake necessary test about physical and mental health of the victim and to undergo further test as required under the MTP Act.
5 Considering the above, at this stage, I am inclined to direct the In-charge Medical Officer of the Civil Hospital, Surendranagar, to undertake necessary medical test of the petitioner-victim Minor Janak about physical and mental fitness to undergo termination of pregnancy as required under the MTP Act and to submit report to this Court on or before 4.5.2010.
S.O. To 4.5.2010.
Copy of this order be given to the learned APP for further course of action.
3. On 4th May 2010, as desired by the parents and minor, Janakben, the matter was heard in the Chamber. Once again, this Court ascertained the parents consent and willingness to terminate pregnancy of their minor daughter, Janakben, a victim of the act of the accused of the offence punishable under Section 376 of the Indian Penal Code. Minor, Janakben, aged 13 years, studied upto Std. VI having primary education, was also questioned and explained by this Court of various facets about termination of pregnancy and the consequence thereof. Shri Ramsang Kanzariya and Smt. Manjuben, the father and the mother of minor, Janakben, very empathetically reiterated that the unwanted pregnancy of their minor daughter, Janakben, was due to rape for which she suffered great injury to the mental and physical health and, therefore, considering overall facts and circumstances of the case, they have given consent and prayed for issuance of an appropriate writ for the relief as mentioned above. The affidavit in this behalf filed by them on oath on 4th May 2010 is produced on the record.
4. Mr. Hirday Buch, learned counsel for the petitioner, has referred to the judgment of the Apex Court in the case of Sudhita Srivastava and another vs. Chandigarh Administration, reported in (2009) 9 SCC 1, and submitted that the Apex Court was concerned with a case where the victim had expressed her willingness to carry pregnancy till its full term and bear a child. However, in the facts of the present case, minor, Janakben, and her parents expressed their consent for termination of pregnancy coupled with the fact that the minor is the victim of the brutal act of the accused of offence punishable under Sections 376 and 506(2) of the Indian Penal Code and, therefore, to avoid unbearable emotional, mental, physical, social and economical consequences, the impugned order dated 30th March 2010 passed by the learned Additional Sessions Judge, Dhrangadhra, deserves to be quashed and set aside. The learned counsel for the petitioner has vehemently submitted that even the interpretation of Section 3 of the Medical Termination of Pregnancy Act, 1971 [for short, MTP Act ] by the learned Additional Sessions Judge is contrary to what is provided in Explanation 1 - 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 .
4.1 It is further submitted by the learned counsel for the petitioner that the Medical Officer, General Hospital, Surendranagar and Incharge Chief District Medical Officer-cum-Civil Surgeon, vide certificate dated 3rd May 2010, gave opinion that minor, Janakben, is clinically, physically and mentally healthy at the present time to undergo termination of pregnancy. It is, therefore, submitted that this is a fit case to exercise powers under Article 226 of the Constitution of India by this Court.
5 On 11th March 2010, minor, Janakben, filed first information report being CR No.I-32 of 2010 at Halvad Police Station against the accused for offence punishable under Sections 376 and 506(2) of the Indian Penal Code alleging that she is the victim of the rape committed by the accused and also having pregnancy of one and half month. Upon registration of the first information report, the Investigating Agency followed the procedure as envisaged in law and minor, Janakben, was sent for examination by the Medical Officer and medico-legal certificate dated 11th March 2010 was issued by the Medical Officer, Referral Hospital & Community Centre, Halvad. Upon collection of muddamal, the Investigating Agency sent the samples for further analysis to the Regional Forensic Science Laboratory, at Junagadh, on 30th March 2010. The birth certificate issued by the competent authority under the Registration of Births & Deaths Act, 1969 reveals the date of birth of minor, Janakben, as 15th September 1997, so also recorded in the medico-legal certificate dated 11th March 2010. Since the final report of investigation is yet not submitted and the case is subject to trial, further discussion about the materials collected by the Investigating Agency which may form part of the evidence is avoided at this stage.
6 The petitioner herein, being mother and natural guardian of minor, Janakben, approached the Court of the learned Additional Sessions Judge, Dhrangadhra, for seeking a direction to terminate unwanted pregnancy on the ground that minor, Janakben being the victim of the rape if delivers a child, she will have to face various problems, which came to be negatived by the learned Additional Sessions Judge, Dhrangadhra, by observing that powers under Section 3 of the MTP Act can be exercised only when the life of the pregnant woman is in danger or there may be grave injury to her physical or mental health or where there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. The learned Additional Sessions Judge, Dhrangadhra, has not considered the provisions of Sections 3, 4 and 5 of the MTP Act and particularly Explanation I to sub-section (2) of Section 3 of the MTP Act. The above provisions were considered by this Court in the order dated 28th April 2010 while issuing direction to the Medical Officer of the Civil Hospital, Surendranagar for verifying mental and physical fitness of minor, Janakben, to undergo termination of pregnancy.
7 Sections 3, 4 and 5 of the MTP Act read as under:
3. When pregnancies may be terminated by registered medical practitioners:-
[1] Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
[2] Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner:-
[a] where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or [b] where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of the opinion, formed in good faith, that [i] the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or [ii] there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation 1,- 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.
Explanation 2,- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
[3] In determining whether the continuance of a 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 reasonably foreseeable environment.
[4][a] No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.
[b] Save as otherwise provided in clause [a], no pregnancy shall be terminated except with the consent of the pregnant woman.
4. Place where pregnancy may be terminated:-
No termination of pregnancy shall be made in accordance with this Act at any place other than-
[a] a hospital established or maintained by Government, or [b] a place for the time being approved for the purpose of this Act by Government.
5. Sections 3 and 4 when not to apply.-
(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Indian Penal Code, the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.
Explanation: For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by a registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.
7.1 Sub-section [4][a] of Section 3 is amended by Amendment of 2002 in the year 2009 and the word lunatic is replaced by the expression mentally ill person .
7.2 Sub-section (1) of Section 3 of the MTP Act begins with non-obstante clause notwithstanding anything contained in the Indian Penal Code, and provides a canopy to a registered medical practitioner against offence under the above Code or any other Statute in a case of termination of pregnancy in accordance with the provisions of the MTP Act. Sub-section (2) of section 3 begins with subject to the provisions of sub-section (4) viz. about approved hospitals under the Act and provides that a pregnancy may be terminated in two eventualities, namely, as per clause (a), where the length of the pregnancy does not exceed twelve weeks by a registered medical practitioner or, as per clause [b], where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, by two registered medical practitioners, on formation of opinion in good faith that [i] the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or [ii] there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Therefore, Explanation I, by which presumption shall have to be drawn of the anguish caused by pregnancy by rape to constitute a grave injury to the mental health of the pregnant woman, permits termination of pregnancy caused by rape subject to the provisions of the MTP Act. Explanation 1 to Section 3 of the MTP Act provides that, in a case of termination of pregnancy when the same is result of rape or failure of birth control, those eventualities have been put on par with grave injury to mental health of a woman. However, the consent of the pregnant woman is an essential requirement for proceeding with termination of pregnancy and if minor with the consent of parents/guardian. We are not concerned with Explanation 2. Sub-section (3) provides factors to be taken into account by the registered medical practitioner while determining whether the continuance of a pregnancy would involve such risk of injury to the health on the part of the pregnant woman s actual or reasonably foreseeable environment. Sub-section (4)(a) provides that no pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian and sub-section (4)(b) is about obtaining the consent of the pregnant woman before termination of pregnancy in case if she is not covered by clause (a) of Sub-section (4). Section 4 is with regard to place where pregnancy can be terminated in the approved hospital under the Act. Section 5 provides that the provisions of Sections 3 and 4 shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
8. Even the law laid down by the Apex Court in the case of Suchita Srivastava (supra) is perused, after considering the object of the Act and provisions of Section 3 as a whole, the Apex Court in paragraph 20 observed that, 'it is clear that Indian law allows abortion only if the specified conditions are met'. In the context of a woman's right to make reproductive choices vis-a-vis dimension of 'personal liberty' as understood under Article 21 of the Constitution of India, in paragraphs 22, 23, 24 and 25, the Apex Court observed as under:
22. There is no doubt that a woman s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman s right to privacy, dignity and bodily integrity should be respected.
This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a compelling state interest in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.
23. A perusal of the above mentioned provision makes it clear that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health [as per Section 3(2)(i)] or when there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped [as per Section 3(2)(ii)]. While the satisfaction of one medical practitioner is required for terminating a pregnancy within twelve weeks of the gestation period, two medical practitioners must be satisfied about either of these grounds in order to terminate a pregnancy between twelve to twenty weeks of the gestation period.
24, The explanations to this provision have also contemplated the termination of pregnancy when the same is the result of a rape or a failure of birth-control methods since both of these eventualities have been equated with a grave injury to the mental health of a woman.
25. In all such circumstances, the consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in Section 3(4)(b) of the MTP Act, 1971.
8.1 From the above observations of the Apex Court, it is clear that Explanation 1 to Section 3 contemplates termination of pregnancy when the same is the result of rape or a failure of birth control methods since both of these eventualities have been equated with a 'grave injury to the mental health' of a woman.
8.2 In paragraph 31, the Apex Court again reiterates the facts of the case before it that the victim had not given consent for the termination of pregnancy and, in the backdrop of the above facts in the case of a mentally retarded person, in paragraph 42 certain directions were given. The observations made in paragraphs 31 and 42 read as under:
31. As mentioned earlier, in the facts before us the victim has not given consent for the termination of pregnancy. We cannot permit a dilution of this requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim. We must also be mindful of the fact that any dilution of the requirement of consent contemplated by Section 3(4)(b) of the MTP Act is liable to be misused in a society where sex-selective abortion is a pervasive social evil.
42. In the present case, the victim has expressed her willingness to carry the pregnancy till its full term and bear a child. The Expert body has found that she has a limited understanding of the idea of pregnancy and may not be fully prepared for assuming the responsibilities of a mother. As per the findings, the victim is physically capable of continuing with the pregnancy and the possible risks to her physical health are similar to those of any other expecting mother. There is also no indication that the prospective child may be born with any congenital defects. However, it was repeatedly stressed before us that the victim has a limited understanding of the sexual act and perhaps does not anticipate the social stigma that may be attached to a child which will be born on account of an act of rape.
9. In the facts of the present case, the minor rape victim has expressed her willingness and her parents have also given consent to undergo termination of pregnancy and, therefore, I do not find any restrictions imposed by the Apex Court in the above judgment. On the contrary, as stated hereinabove, the unwanted pregnancy of a rape victim, which may cause anguish, trauma and innumerable sufferings of mental, physical, social and economical, can be terminated.
10. On perusal of the certificate dated 3rd May 2010 issued by the Medical Officer, General Hospital, Surendranagar and Incharge Chief District Medical Officer-cum-Civil Surgeon, it is apparent that minor, Janakben, was examined on 3rd May 2010 and she is carrying pregnancy of about 12 to 14 weeks; she was examined by Gynecologist Dr. Shipla Gupta and Medical Officer Dr. J.N. Rajput, required laboratory tests were carried out in the hospital and she is clinically, physically and mentally healthy at present time and medical termination of pregnancy can be done if she wants as per the Rules. Therefore, as on date, pregnancy of minor, Janakben, is about 12-14 weeks as per the certificate dated 3rd May 2010.
11. A bare perusal of the first information report filed by the petitioner alleging offence under Sections 376 and 506(2) of the Indian Penal Code reveals that she has been subjected to rape by the accused. Besides, she was threatened with dire consequences including to kill her and family members and later on, when she apprised her parents, she was carrying pregnancy of one and half month. In the present petition filed by her through her mother and natural guardian, it is stated that she does not want to carry pregnancy any further as it would cause innumerable mental, physical, social and economical problems. As stated earlier, on 4th May 2010, this Court questioned Minor Janakben, studied upto Std. VI and is able to understand the pros and cons of termination of pregnancy, about certain factual aspects related to the incident and so also about her parents and she with all her firmness determined to undergo termination of pregnancy. She being minor, on further inquiry by this Court, her parents also expressed consent and willingness to terminate pregnancy on their behalf as well as on behalf of minor, Janakben. It is also reiterated by filing affidavits. Minor Janakben as well as her parents have submitted that the pregnancy is against her will, she is unable to bear and rear the child in the womb and unless it is terminated, the minor girl would suffer trauma and psychological set back and, considering likelihood of unforeseen circumstances including social and economical issues, it is prayed by them that this Court may grant relief as prayed for.
12. The investigation is on the verge of completion and the final report of the FSL is awaited, but the fact remains that minor, Janakben, carries pregnancy of about 12 weeks from the gestation period.
13. Considering the above, the case on hand fulfills the following legal and factual requirements:
[a] Minor, Janakben, is aged about 13 years, studied upto Std. VI; her date of birth is 15th September 1997 as per the birth certificate issued by the competent authority; and she is a victim of rape as per the investigation papers.
[b] As provided in Explanation I to sub-section (2) of Section 3 of the MTP Act, if the pregnancy is alleged to have been caused by rape; the anguish caused by such pregnancy shall be presumed to constitute a grave injury as per section 3(2)(a)(b)(i) of the Act to the mental health of the pregnant woman.
[c] As provided in sub-section (3) of Section 3 of the MTP Act as to foreseeable environment, the parents of minor, Janakben, hail from the poor strata of the society and are likely to face innumerable mental, physical, social and economical problems in future.
[d] As provided in sub-section (4)[a] of Section 3 of the MTP Act, written consent is given by the parents of minor, Janakben, by filing affidavit dated 4th May 2010 and so also expressed before this Court.
[e] The Government General Hospital, Surendranagar, a hospital established and/or maintained by the Government of Gujarat and a place for the time being approved for the purposes of the MTP Act, is the place where pregnancy is to be terminated, as provided in Sections 3 and 4 of the MTP Act.
14. Considering the above and keeping in mind the best interest of minor, Janakben, and her parents and likely consequences and innumerable mental, physical, social and economical problems in future if pregnancy is not allowed to be terminated and resulted into birth of a child, this Court has come to the conclusion that the present case falls within the parameters of Sections 3 and 4 of the MTP Act. There is no bar, as provided in Explanation I to sub-section (2) of Section 3 of the MTP Act, for termination of pregnancy in case of a rape victim if such pregnancy is caused by rape.
15. Having regard to the factual and legal position as discussed hereinabove and not disputed by Mr. Shivang Shukla, learned Additional Public Prosecutor for the respondent-State, the provisions of the MTP Act, and considering the judgment of the Apex Court in the case of Sudhita Srivastava [supra], this Court is constrained to issue the following directions:
[i] The Civil Surgeon, Government General Hospital, Surendranagar, is directed to conduct medical termination of pregnancy of minor, Janakben, with two qualified surgeons including Gynecologist, Obstetricion in presence of a qualified physician with due care and precaution so as to avoid any likelihood of untoward harm to the physical or mental health of minor, Janakben, after carrying out necessary medical check-up, forthwith;
[ii] It is clarified that if the concerned panel of doctors are of the opinion that termination of pregnancy would affect the life and safety of minor, Janakben, they shall not terminate the pregnancy, otherwise, they shall terminate the pregnancy.
[iii] The blood group of minor, Janakben, is B+ as per the medical report and, therefore, special arrangement be made for providing adequate quantity of blood in the event of necessity.
[iv] The foetus be preserved to enable the Investigating Agency to send it for DNA test.
[v] Minor, Janakben, be discharged from the hospital after termination of pregnancy only if she is found to be medically fit to reside with her parents and, thereafter, she may be called for periodical check-up to know about status of her health as and when required and found necessary and she be provided medicine, proper diet and nutritious food as may be necessary for her health.
16. With the above directions, this petition is allowed. The impugned order dated 30th March 2010 passed by the learned Additional Sessions Judge, Dhrangadhra, is quashed and set aside. Rule is made absolute. Direct service is permitted.
(ANANT S. DAVE, J.) (swamy) Top