Gujarat High Court
Chandniben Dineshbhai Hathila (Minor) ... vs State Of Gujarat on 28 January, 2020
Author: S.H.Vora
Bench: S.H.Vora
R/SCR.A/542/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 542 of 2020
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CHANDNIBEN DINESHBHAI HATHILA (MINOR) THRO DINESHBHAI
KHIMABHAI HATHILA
Versus
STATE OF GUJARAT
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Appearance:
MR JAPAN V DAVE(5947) for the Applicant(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4,5,6,7
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 28/01/2020
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 24.01.2020, this Court passed the following order :-
"Leave to add Medical Superintendent, Sola Civil Hospital, Ahmedabad as respondent no.7.
Notice returnable on 28.01.2020. Learned APP waives service of notice on behalf of the respondent - State. Meanwhile, let the victim minor - Chandniben Dineshbhai Hathila be examined by 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 her guardian inclines to terminate her pregnancy. Doctors concerned shall follow settled Page 1 of 5 Downloaded on : Tue Jan 28 23:17:48 IST 2020 R/SCR.A/542/2020 ORDER 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 24.01.2020, learned APP has received report of Associate Professor, Obstetrics and Gynecologists Department, GMERS Medical College, Sola, Ahmedabad dated 27.01.2020 addressed to RMO, Sola, Civil Hospital, Ahmedabad. The said report is ordered to be taken on record. The victim girl viz. Chandniben Dineshbhai Hathila is examined by two panel of Doctors of General Hospital, Sola, Ahmedabad viz. Dr. Pallavi Ninama and Dr. Vijay Kansara.
5 The panel of Doctors in terms have opined as under :-
Victim is psychologically stable as per the psychiatric opinion.
Victim has no medical pathology as per the opinion of concerned specialty.
As per the MTP Act, termination of the pregnancy can be done upto 20 weeks of pregnancy.
As present victim is having 18 weeks 2 days pregnancy.
Pregnancy can be terminated with usual risk associated with such condition / situation. Informed consent of the guardian will be required for performing MTP.
Provision has to be made for collection of sample / material for DNA testing after termination of pregnancy by RMO.Page 2 of 5 Downloaded on : Tue Jan 28 23:17:48 IST 2020
R/SCR.A/542/2020 ORDER
6. This Court has heard both the sides and considered the opinion / report dated 27.01.2020 of Associate Professor, Obstetrics and Gynecologists Department, GMERS Medical College, Sola, Ahmedabad.
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 27.01.2020, pregnancy of 18 weeks and 2 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-44 of 2019 registered with Dahod Police Station for the offence punishable under sections 363, 366, 376 of IPC and under the provisions of Protection of Children from Sexual Offences Act, 2012.
10. The victim is already carrying about 18 weeks and 2 days of pregnancy with specific report / opinion of panel of Doctors that termination of pregnancy is medically feasible. No doubt, pregnancy exceeds 18 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 : Tue Jan 28 23:17:48 IST 2020
R/SCR.A/542/2020 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 Medical Superintendent, Sola Civil Hospital, Ahmedabad forthwith by the learned APP. Copy of this order shall also be sent by the Registry to the Medical Superintendent, Sola Civil Hospital, Ahmedabad.
13. Since the pregnancy of victim exceeds 18 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 General Hospital, Ahmedabad. The said team of Doctors shall examine the victim Ms. Chandniben Dineshbhai Hathila 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 Services Authority, Ahmedabad and on such request being made Page 4 of 5 Downloaded on : Tue Jan 28 23:17:48 IST 2020 R/SCR.A/542/2020 ORDER 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 : Tue Jan 28 23:17:48 IST 2020