Gujarat High Court
Chandrakant Jayantilal Suthar & vs State Of Gujarat on 23 July, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
R/SCR.A/4255/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4255 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== CHANDRAKANT JAYANTILAL SUTHAR & 1....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance:
MR PRADIP D BHATE, ADVOCATE for the Petitioners MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 23/07/2015 C.A.V. JUDGMENT
1. Rule. Mr.Mitesh Amin, learned Public Prosecutor, waives service of notice of Rule for the Page 1 of 34 R/SCR.A/4255/2015 CAV JUDGMENT respondent.
2. Sometimes, the Court is confronted with a dilemma where the case before it is such that the legal implications of the decision would have repercussions upon the life of an individual. The present is one such case.
3. One has often heard the phrase, "Beware of a wolf in sheep's clothing". In the present case, an innocent girl, aged fourteen years, fell prey to a predator who wore the garb of a doctor, a person who is supposed to heal the wounds of humanity, and not inflict them. Instead of healing, what was allegedly meted out to the hapless victim was the violation of her person, a trauma of the worst kind for a girl or a woman, both physical, mental and psychological, that would change the course of her life.
4. The petitioners before this Court are the parents of the victim girl, who have challenged the order dated 10.07.2015, passed by the learned Additional Sessions Judge, Sabarkantha, in Miscellaneous Criminal Application No.332 of Page 2 of 34 R/SCR.A/4255/2015 CAV JUDGMENT 2015, whereby, their application for permission to terminate the pregnancy of their minor daughter, came to be rejected.
5. The factual matrix of the case, as discernible from the record, is as follows.
6. The victim girl, aged fourteen years, made a complaint on the basis of which a First Information Report (FIR) being C.R.I60/2015 came to be registered on 29.06.2015, before the Talod Police Station, under Sections 376 and 328 of the Indian Penal Code and Sections 5(4)(2), 6, 9(e) and 10 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act"). The narration in the FIR is to the effect that the victim, who is a student of the tenth standard, was suffering from typhoid; therefore, sometime in February 2015, her mother took her to Ranasan. The clinic of Dr.Jatinbhai K.Mehta (the doctor) is located near the Bus stand at Ranasan and the mother of the victim took her there for treatment, at about 9:30 am on the fateful day. The doctor took the victim into his Page 3 of 34 R/SCR.A/4255/2015 CAV JUDGMENT chamber and asked her mother to wait outside.
After drawing the curtains, the doctor allegedly asked the victim indecent questions and gave her an injection, after which the victim lost her consciousness. When the victim recovered and regained her consciousness she realised that her clothes were in disarray and she was suffering from pain in her private parts. She realised she had been raped by the doctor and asked him why he had done such a thing. The doctor allegedly threatened the victim that if she disclosed the incident to her mother or uncle (who lived in Ranasan), he would ruin her life. The victim, therefore, did not disclose the incident to her mother.
7. When the victim did not get her menstrual periods for two or three months, her mother and her uncle took her for a checkup to Dr.Karshanbhai Patel at Nikoda, on 28.06.2015. After examining the victim, it was found that she was pregnant. The victim then disclosed the incident of rape to her mother and uncle. The FIR was lodged the next day, on 29.06.2015. Page 4 of 34 R/SCR.A/4255/2015 CAV JUDGMENT
8. On 09.07.2015, the parents of the victim, the petitioners herein, filed Criminal Miscellaneous Application No.332 of 2015 in the Court of the learned Additional Sessions Judge, Sabarkantha at Himmatnagar, who is also the designated Special Judge under the POCSO Act, seeking permission to terminate the pregnancy of the victim as the said pregnancy was the result of rape and the victim was not ready to accept the pregnancy. It was stated in the application that the victim, being a minor, is not in a position to physically or mentally go through the pregnancy and was in depression. The family, being financially weak, could not bear the additional burden. It was stated that the studies of the victim would suffer, she would face social stigma and her life would be ruined, if permission to terminate the pregnancy was not granted.
9. The Sessions Court directed that the victim be examined by a Gynaecologist. Dr.Anita K.Purohit examined the victim on 10.07.2015. On the basis of the Sonography report dated 10.07.2015, Page 5 of 34 R/SCR.A/4255/2015 CAV JUDGMENT prepared by "Sarita Digital XRay and Sonography Clinic" and signed by Dr.Ketan M.Gadhvi, the Gynaecologist opined that as per the Sonography Report, the pregnancy cannot be terminated in view of the provisions of the Medical Termination of Pregnancy Act, 1971 ("the MTP Act"). However, if the Court so directs, the pregnancy could be terminated after arrangements for providing blood are made.
10. As per the Sonography Report dated 10.07.2015, the foetus was of about 23 weeks and 6 days, that is, about 24 weeks. Taking into consideration the aspect that the pregnancy of the victim was over twenty weeks, the Sessions Court declined to accord permission for the termination of the pregnancy, keeping in view the provisions of the MTP Act. It is this order of the Sessions Court that is impugned before this Court.
11. Mr.Pradip D.Bhate, learned counsel for the petitioners, made an impassioned plea that this Court may set aside the impugned order and grant Page 6 of 34 R/SCR.A/4255/2015 CAV JUDGMENT permission to terminate the pregnancy of the victim, as she is only fourteen years old and is studying in the tenth standard. She is not physically, or mentally, capable of going through the pregnancy. As submitted by him, the victim comes from a poor family who cannot bear the additional burden that the pregnancy would impose, if it is not terminated. The victim is suffering from depression due to the pregnancy. Her whole life would be ruined, she would have problems regarding her marriage and would face social stigma if the child is born. It is submitted that the elder sister of the victim is mentally challenged and there are changes that the child born to the victim may also have some mental abnormality. The victim does not want the pregnancy and has consented to get it terminated and this would be in her best interest.
12. It is further submitted that as per Explanation 1 of Section 3(2)(b)(i) of the MTP Act, the anguish caused to the pregnant woman due to a pregnancy caused by rape shall be presumed to Page 7 of 34 R/SCR.A/4255/2015 CAV JUDGMENT constitute a grave injury to the mental health of the pregnant woman, which is a ground, under Section 3(2)(b)(i), for the formation of an opinion by two medical practitioners, for the termination of a pregnancy. It is submitted that in the present case, the pregnancy having been caused by an act of rape, the victim is in anguish, which constitutes a grave injury to her mental health and is a ground for the termination of her pregnancy.
13. The learned counsel for the petitioners has further submitted that the report of the Gynaecologist shows that the blood report of the victim shows deficiency, which can cause harm to the victim during childbirth. Moreover, though the Gynaecologist has opined that the pregnancy cannot be terminated as per the provisions of the MTP Act, she has further stated in the report that if the Court so directs, the pregnancy can be terminated after making arrangements for blood. It is contended that it is not as though it is medically not possible to terminate the pregnancy. Looking to the age of Page 8 of 34 R/SCR.A/4255/2015 CAV JUDGMENT the victim and the unfortunate circumstances due to which she became pregnant, the economic condition of her parents, her future, her studies and the social stigma attached to such a pregnancy, this Court may grant permission to terminate the pregnancy. The learned counsel for the petitioners has cited several judgments to fortify his submissions, which shall be referred to later.
14. Mr.Virat G.Popat, learned advocate, has sought permission from the Court to address submissions on behalf of Mr.Pradip D.Bhate, learned counsel for the petitioners. He was permitted to advance his submissions. Mr.Popat has submitted that, looking to the provisions of Section 3 of the MTP Act, it is clear that it is not a prohibitory provision. Nowhere does it say that a pregnancy of over twenty weeks cannot be terminated. The only prohibition is contained in subsection (4)(a) of Section 3, which prohibits the termination of the pregnancy of a woman under eighteen years of age or a mentally ill woman, without the consent in writing of her Page 9 of 34 R/SCR.A/4255/2015 CAV JUDGMENT guardian. According to Mr.Popat, this is the only prohibition and except for this, Section 3, as a whole, is discretionary and not mandatory. There is no express bar to the termination of a pregnancy or over twenty weeks. Hence, according to the learned advocate, permission to terminate the pregnancy can be granted even though the pregnancy is over twenty weeks.
15. Mr.Mitesh Amin, learned Public Prosecutor, has addressed the Court on behalf of the respondent State of Gujarat and has submitted that, Section 3 of the MTP Act is very clear that permission to terminate a pregnancy can only be granted if the length of the pregnancy does not exceed twelve weeks if a registered medical practitioner forms an opinion in good faith that the continuation of the pregnancy would involve a risk to the life of the pregnant woman or a grave risk to her 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 as to be seriously handicapped. Similarly, if the length of the Page 10 of 34 R/SCR.A/4255/2015 CAV JUDGMENT pregnancy exceeds twelve weeks but does not exceed twenty weeks, the opinion of two registered medical practitioners is required. There is no provision of law in the MTP Act that permits the termination of a pregnancy exceeding twenty weeks. It is submitted that the victim's pregnancy is, admittedly, now of twentyfour weeks, therefore, as per Section 3 of the MTP Act, permission to terminate it has rightly not been granted by the Sessions Court. It is submitted that the intention of the legislature is clear from Section 3 of the MTP Act that the law does not permit the termination of a pregnancy exceeding twenty weeks. The only exception in which Sections 3 and 4 would not apply are enumerated in Section 5, when a registered medical practitioner has opined, in good faith, that the termination of the pregnancy is immediately necessary to save the life of the pregnant woman. Such is not the case here. There is no opinion by any registered medical practitioner that the continuance of the pregnancy poses a grave risk to the life of the Page 11 of 34 R/SCR.A/4255/2015 CAV JUDGMENT victim and its termination is immediately necessary to save her life. Even this section does not permit the termination of pregnancy beyond 20 weeks, on account of its having been caused by rape. The intention of the legislature is amply clear from this section as well. It is submitted that the State would extend all possible help to the victim and her family and this Court can issue appropriate directions in this regard.
16. While advancing his submissions, Mr.Pradip D.Bhate, learned counsel for the petitioners, has brought several judgments to the notice of this Court.
17. The first judgment relief upon by him is Janak Ramsang Kanzariya (Minor) thorough Manjuben Ramsang Kanzariya v. State of Gujarat - 2011 Cr.L.J. 1306. In that case, this Court granted permission to terminate the pregnancy of a twelveyearold girl who had conceived as a result of an act of rape. Taking into consideration the age of the girl, her poor Page 12 of 34 R/SCR.A/4255/2015 CAV JUDGMENT economical status and the social, mental and physical problems the girl would face, such permission was granted. A perusal of the judgment, especially paragraph 10 thereof, reveals that the length of the pregnancy of the girl was 12 to 14 weeks. In other words, the length of the pregnancy was under twenty weeks, therefore, permission to terminate it could have been granted as per the provisions of Section 3 of the MTP Act.
18. The second judgment referred to on behalf of the petitioners is of this Court, dated 21.06.2013, rendered in Special Criminal Application No.1786 of 2013 (Jankiben Ronakbhai Patel v. State of Gujarat And Anr.). In that case, the pregnancy of the petitioner (who was not a minor) was permitted to be terminated as having occurred due to rape. The length of the pregnancy was nineteen weeks. Thus, in this case as well, the length of the pregnancy was under
twenty weeks, therefore, it was permissible, under the provisions of Section 3 of the MTP Act, to permit its termination.
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19. The third judgment upon which reliance is placed on behalf of the petitioners has been rendered by the High Court of Madras in D.Rajeshwari v. State of Tamil Nadu and Others - 1996 Cr.L.J. 3795. In that case, a minor girl aged thirteen years, became pregnant due to acts of rape and was permitted to terminate the pregnancy. In that case as well, the duration of the pregnancy was eighteen weeks, and did not exceed twenty weeks.
20. The fourth judgment cited on behalf of the petitioners is that of the High Court of Punjab and Haryana dated 07.10.2014, passed in CWP No.20783 of 2014 (Vijender v. State of Haryana and others). In that case, the Court issued directions to follow a previous order in the case of minor rape victims who do not want the pregnancy and desire to terminate it. There is nothing in this judgment that suggests that the pregnancy of the concerned victim exceeded twenty weeks, or that permission to terminate it was granted even though it exceeded such time period.
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21. The fifth judgment referred to by the learned counsel for the petitioners is rendered by the Supreme Court in the case of Suchita Srivastava and Another v. Chandigarh Administration - (2009)9 SCC 1. In that case, the judgment of the Punjab and Haryana High Court, directing the termination of the pregnancy of a mentally retarded orphan girl of about nineteen to twenty years (as per the ossification test), caused by rape was set aside. While doing so, the Supreme Court took into consideration the difference between "mental retardation" and "mental illness" and the aspect that, though the girl was mentally retarded, she had given her consent to have the baby and was physically capable of going through the childbirth.
22. In the present case, though pregnancy of the victim has been caused by rape, she is neither mentally retarded nor mentally ill and is desirous of terminating her pregnancy. This judgment would not come to the aid of the petitioners in the context of the present case. Page 15 of 34 R/SCR.A/4255/2015 CAV JUDGMENT
23. The sixth, and last, judgment referred to by the learned counsel for the petitioners is of this Court dated 16.04.2015, rendered in Special Criminal Application No.1919 of 2015 (Ashaben w/o. Dineshbhai Jasubhai Talsaniya (Devipujak) v. State of Gujarat and Others). In that case, this Court declined to give permission to the rape victim therein, who was a married lady having children, to terminate the pregnancy which was over twenty weeks in duration. This judgment would, in fact, aid the reverse proposition to that expounded by the petitioners, that Section 3 of the MTP Act does not permit the termination of a pregnancy the length of which exceeds twenty weeks (it was about twenty seven weeks as on 31.03.2015).
24. In the above background, this Court has heard learned counsel for the respective parties at length, perused the material on record and accorded deep and thoughtful consideration to the factual and legal issues that emerge for decision.
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25. This Court would have to admit that, to arrive at a decision in a case such as the present one involving a minor victim of rape, saddled with an unwanted pregnancy with all its physical, mental, emotional and social implications on the one hand and the statutory provisions of law on the other hand, is a difficult task. There is not the remotest doubt that the law of the land is to be upheld, obeyed and applied and every judge of the High Court is bound by a constitutional oath to do so. However, there are times when a poignant situation arises in a case where the application of the law gives rise to a situation that would have physical, mental and social connotations upon the life of an innocent girl. Nevertheless, the law is the law, and has to be obeyed.
26. The legislature has enacted the MTP Act after due deliberation, taking into consideration all surrounding and relevant factors. The intention of the legislature in enacting the statute is evident from the language employed. The first and foremost rule in construing a statutory Page 17 of 34 R/SCR.A/4255/2015 CAV JUDGMENT provision is the rule of literary construction. If the provision of the statute is unambiguous and the legislative intent is clear from it, no other rules of interpretation are required to be resorted to and the statutory provision is to be followed as it is.
27. In the present case, the relevant statutory provision is Section 3 of the MTP Act, which is reproduced hereinbelow, for ready reference:
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 subsection (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, Page 18 of 34 R/SCR.A/4255/2015 CAV JUDGMENT of 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.
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(b) Save as otherwise provided in clause
(a), no pregnancy shall be terminated except with the consent of the pregnant woman.
28. A bare reading of the entire section makes it clear that the language is straightforward, clear and unambiguous. The section begins with a nonobstante clause, overriding the provisions of any other law in force. It states that no registered medical practitioner shall be held guilty of an offence under the IPC or any other law, if any pregnancy is terminated by him in accordance with the provisions of this Act. Therefore, the legislature intended that the termination of pregnancy by any registered medical practitioner has to be in accordance with the provisions of the MTP Act. Section 3(2) of this Act permits the termination of pregnancy [subject to subsection (4)] only on two grounds, namely, when (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 Page 20 of 34 R/SCR.A/4255/2015 CAV JUDGMENT abnormalities as to be seriously handicapped. Only under the above two situations can an opinion be formed for the termination of the pregnancy. If the length of the pregnancy does not exceed twelve weeks, the opinion of one registered medical practitioner is required. If the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, the opinion of two registered medical practitioners is necessary. There is no provision in Section 3 that permits the termination of a pregnancy, the length of which exceeds twenty weeks. As per subsection (4) of Section 3, the written consent of a guardian is necessary in the case of a woman below eighteen years or a mentally ill woman. Section 5 of the MTP Act permits the termination of the pregnancy in case a registered medical practitioner is of the opinion formed in good faith, that the termination of the pregnancy is immediately necessary to save the life of the pregnant woman. This section, as well, nowhere states a pregnancy exceeding twenty weeks can be Page 21 of 34 R/SCR.A/4255/2015 CAV JUDGMENT terminated.
29. An argument has been advanced by the learned counsel for the petitioners that the unwanted pregnancy that is a result of rape and has caused great anguish to the victim and, therefore, constitutes a grave injury to her mental health in terms of explanation I to Section 3(2) of the MTP Act. Therefore, as per Section 3(2)(b)(i), this is a ground for the termination of the pregnancy, especially when the parents of the minor girl have given their consent.
30. This Court is unable to accede to this proposition, as Section 3(2)(d)(i), read with Explanation1, specifically state the duration of the pregnancy, which duration does not exceed twenty weeks. Had the length of the pregnancy not exceeded twenty weeks, the argument of the learned counsel for the petitioners could have been accepted. However, as it is an admitted fact that the pregnancy is now a little over twentyfour weeks, this Court is unable to Page 22 of 34 R/SCR.A/4255/2015 CAV JUDGMENT accept the submissions of the learned advocate for the petitioners.
31. The legislative intent running through the MTP Act, especially Section 3 thereof, is clear and unambiguous. The maximum length of pregnancy permissible of being terminated is twenty weeks. Had the Legislature intended that a pregnancy, the length of which exceeds twenty weeks can be terminated, it would have clearly stated so, while enacting the provision. The Court cannot read into the provisions of a statute something that is not there or is not intended to be there by the Legislature. It is bound to follow the law as it is. As stated earlier, there is no ambiguity in the provisions of Section 3, so as to make it necessary to follow any other rule of interpretation, except the literal rule of construction. The Court cannot legislate under the garb of interpretation [B.Premanand And Others v. Mohan Koikal and Others (2011) 4 SCC 266].
32. Mr.Virat G.Popat, learned advocate, who has made Page 23 of 34 R/SCR.A/4255/2015 CAV JUDGMENT additional submissions on behalf of the learned advocate for the petitioners, has contended that the language of Section 3 of the MTP Act is not prohibitory. That the only prohibition is contained in subsection (4) of Section 3 and that relates to the written consent to terminate the pregnancy, by the guardian of a woman below the age of eighteen years or a mentally ill woman. According to Mr.Popat, there is no express bar in Section 3 regarding the termination of a pregnancy, the length of which exceeds twenty weeks. As per his submission, the provisions of Section 3 are discretionary and not mandatory.
33. As this Court has observed earlier, the provisions of a statute, if clear and unambiguous, are to be read as they are and the plain and unambiguous meaning, which is indicative of the legislative intent, is to be given effect. There is nothing in Section 3 of the MTP Act which provides for the termination of a pregnancy, the length of which exceeds twenty weeks. If the Legislature had intended Page 24 of 34 R/SCR.A/4255/2015 CAV JUDGMENT so, it would have been so enacted. The function of the Court is only to expound the law and not to legislate. It cannot read into the law what has not been either enacted, or intended. Section 3 of the MTP Act is a clearcut provision of law which specifically provides for the termination of a pregnancy, clearly specifying the length of such pregnancy, not exceeding twenty weeks. The proposition advanced by Mr.Popat that Section 3 is not a mandatory provision, is not convincing. The clear and unambiguous provisions of a statute are to be followed as they are, being the law of the land. No discretion has been granted to any Court or authority in Section 3, to deviate from its provisions. The submission that Section 3 of the MTP Act is a discretionary provision, is untenable.
34. Another relevant aspect is that in the present case, there is no opinion of any registered medical practitioner that the continuance of the pregnancy of the victim would involve a risk to her life or grave injury to her physical or Page 25 of 34 R/SCR.A/4255/2015 CAV JUDGMENT mental health. Nor has it been opined that if the child were born, it would suffer from any physical or mental abnormalities as to be seriously handicapped. In any case, even under the above situations, an opinion to terminate the pregnancy can only be formed if the length of the pregnancy does not exceed twenty weeks. In the present case, the length of the pregnancy now exceeds twenty four weeks. There is no medical opinion that the termination of the pregnancy is immediately necessary to save the life of the pregnant woman as per Section 5 of the MTP Act. Viewed from every angle, the provisions of the MTP Act do not permit the termination of the pregnancy of the victim.
35. It has been submitted by the learned counsel for the petitioners that the victim's elder sister is mentally challenged and there may be a possibility that the child, when born, would suffer from mental abnormalities. When the victim, herself, is mentally and physically sound, such a submission is, at best, only a conjectural one. The Sonography Report dated Page 26 of 34 R/SCR.A/4255/2015 CAV JUDGMENT 10.07.2015 states "no obvious congenital fatal anomalies are seen". The Haemogram profile shows that the haemoglobin of the victim is below the required level. That situation, however, can be rectified with proper diet and medicines and cannot be said to constitute a serious threat to the life of the victim, in the context of her pregnancy.
36. It has been pointed out to the Court by the learned counsel for the petitioners that in the report of the Gynecologist, it has been stated that, though the pregnancy of the victim cannot be terminated as per the MTP Act, however, if the Court so directs, it can be terminated after making proper arrangements for blood. With due respect to the Gynecologist, the Court is required to see what is legally permissible and not what is possible dehors the legal provisions. A thing that may be possible medically, may not be permissible legally. One such example is the sex determination of a foetus. It may be medically possible but it is prohibited by law. Therefore, to say that what Page 27 of 34 R/SCR.A/4255/2015 CAV JUDGMENT cannot be done in terms of the MTP Act can be done if the Court so directs, is a contradiction in terms. The Court cannot direct anything to be done that is not permissible in law.
37. As regards the legal position, the above discussion leads only to one conclusion, and that is that since the length of the pregnancy of the victim is over twentyfour weeks, this Court cannot permit its termination in view of the provisions of Section 3 of the MTP Act.
38. Under the circumstances, the impugned order dated 10.07.2015, passed by the learned Additional Sessions Judge, Sabarkantha, does not suffer from any error of law. Consequently, the application cannot be accepted.
39. Having arrived at the above conclusion, this Court is painfully conscious of the implications of the decision on the life of the victim. The girl is only fourteen years old, is a student of StandardX and has her whole life ahead of her. The economic condition of the petitioners (her parents) is weak and they can illafford the Page 28 of 34 R/SCR.A/4255/2015 CAV JUDGMENT additional burden of the child. The pregnancy is unwanted and is the result of rape. The physical, mental, emotional and psychological trauma faced by the victim is formidable.
40. Rape is a crime not only against a woman but against humanity at large as it brings out the most brutal, depraved and hideous aspects of human nature. It leaves a scar on the psyche of the victim and an adverse impact on society. In the present case, the rape suffered by the victim has left a more visible impact an unwanted child. Only the sufferer knows the extent of the suffering. But sometimes, there is no other option but to go through the trauma, such as in the present case. It is heart wrenching to imagine the situation of the victim and what lies ahead of her. Her welfare is, therefore, the paramount consideration for this Court. It would be in the best interest of the victim if she manages to continue with her studies after the child is born. The State Government can be requested to provide help for herself and her child and its upbringing. There Page 29 of 34 R/SCR.A/4255/2015 CAV JUDGMENT is also the factor of social stigma, society being as it is. This has to be countered boldly by all concerned. Whatever has happened to the victim and whatever its consequences, are not her fault at all. She cannot, and should not, be blamed for it. She needs the support of the authorities and enlightened citizens of society, more than anything else. She, too, deserves to be educated, dream her dreams, and, in times to come, have a home and family of her own, just like any other young girl. Humanity and society should assist, her and others like her, in this regard.
41. It is highly unfortunate that the victim has been made to undergo this trauma, allegedly at the hands of a person who professes to be a doctor and a healer. If the allegations are proved, it would be a case where the healer has turned predator, a blot on the noble profession to which he belongs. While satisfying his lust, the doctor had little regard for the consequences of his bestial and depraved act upon the life of the hapless and innocent Page 30 of 34 R/SCR.A/4255/2015 CAV JUDGMENT victim. It is something she has to live with for the rest of her life. The concerned authorities ought to take note and take the strictest action in such cases.
42. There is also the issue of the child that is yet to be born. Whatever be the circumstances in which the child was conceived, whatever the trauma of the young mother, the fact remains that the child is also not to blame for being conceived. It did not ask to be born. When the child is born it should not be abandoned or neglected. Proper provisions are required to be made for its welfare, education and upbringing. The child is innocent, just like the victim, its mother.
43. The Court is fully aware of the hard realities of life that the victim is facing and would face, in future. The trauma, mental agony and fear of social ostracism can take a toll of any person, what to speak of an innocent fourteen year old girl. As stated hereinabove, there is no other legal option but for her to go through Page 31 of 34 R/SCR.A/4255/2015 CAV JUDGMENT with the pregnancy, which is over twentyfour weeks in length.
44. In giving birth to the child, the victim and her parents are required to be given full assistance and cooperation by the Government authorities, at every level. To this end, this Court considers it appropriate to issue the following directions:
1) The Collector, Sabarkantha, shall ensure that arrangements are made to provide proper diet, medical supervision and medicines as may be necessary, to the victim throughout the duration of her pregnancy. When the time for delivery arrives, proper medical facilities be made available to effect a safe delivery.
2) Though the studies of the victim are bound to be interrupted for some time, however, the Collector, Sabarkantha, shall try to ensure that she continues her studies even after the birth of the child, maybe as a private student, if it is not possible for Page 32 of 34 R/SCR.A/4255/2015 CAV JUDGMENT her to study as a regular student for some time.
3) The Collector, Sabarkantha, shall ensure that the child, when born, is not abandoned or neglected. He should also keep a watch to ensure that no harm comes to the child. If the victim and her parents so permit, efforts can be made for the child to be adopted in case the victim does not want to, or is unable to, bear the burden of its upbringing. The services of a reputed NGO can be availed of in this regard.
4) In addition to the amount of Rs.25,000/ ordered to be given to the victim by the Sessions Court as interim compensation, the State Government shall pay her an amount of Rs.1,00,000/.
5) The court is informed that Dr.Jatinbhai K. Mehta, the accused in connection with the FIR, being IC.R.No.060/2015, registered with the Talod Police Station, District:
Sabrakantha, has been arrested. If not, steps be taken to arrest him. The District Page 33 of 34 R/SCR.A/4255/2015 CAV JUDGMENT Superintendent of Police, Sabarkantha, shall supervise the investigation of the case and ensure that it is completed expeditiously.
6) A copy of this order, along with the details of the accused Dr.Jatinbhai K. Mehta, be sent to the Medical Council of India for information and further necessary action, as required.
45. With the above directions, the petition stands rejected. Rule is discharged.
(SMT. ABHILASHA KUMARI, J.) sunil Page 34 of 34