Gujarat High Court
Minor Bhagwati D/O Madanlal Khatik Thro ... vs State Of Gujarat on 31 May, 2019
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/SCR.A/5859/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5859 of 2019
===========================================================
MINOR BHAGWATI D/O MADANLAL KHATIK THRO INDIRABEN W/O
MADANLAL KHATIK
Versus
STATE OF GUJARAT
================================================================
Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS URMILA N DESAI(5609) for the Applicant(s) No. 1
MR L B DABHI APP (2) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 31/05/2019
ORAL ORDER
1. By way of filing the present petition under Article 226 of the Constitution of India, the petitioner - minor Bhagwati, daughter of Madanlal Khatik through her mother and natural guardian Indiraben - wife of Madanlal Khatik, has prayed for following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, permitting the petitioner to get the pregnancy of minor daughter terminated, after taking medical opinion from any Governmental Hospital, as may be deemed fit by this Hon'ble Court, considering the minor age, mental and physical non-fitness and other factors, in the interest of justice;
(B) YOUR LORDSHIPS be pleased to direct the respondent No.2 i.e. the Medical Officer of the Civil Hospital, Ahmedabad or any other Government Hospital to undertake necessary medical tests of the minor daughter about physical and medical fitness to undergo termination of pregnancy as required under the Medical Termination of Pregnancy Act, 1971 and to submit the report thereof to this Hon'ble Court with immediate effect for its subjective satisfaction;
(C) YOUR LORDSHIPS be pleased to direct the respondent No.2 i.e. the Medical Officer of the Civil Hospital, Ahmedabad or any other Government Hospital to examine the Victim by 2 registered medical practitioners so also the Page 1 of 5 Downloaded on : Wed Jul 03 02:24:17 IST 2019 R/SCR.A/5859/2019 ORDER opinion be formed in good faith with certificate, to be reported to the Hon'ble Court as required under Section 3(2)
(b) of the Medical Termination of Pregnancy Act, 1971;"
2. The broad facts of the present case are that the petitioner victim minor was born 23.06.2004 and is aged about 15 years. She is victim of rape. It is stated that the petitioner complained of having stomach pain and upon medical check up, the concerned doctor opined that she is carrying two months' pregnancy. The victim was thereafter taken to the Municipal General Hospital, Maninagar, Ahmedabad for medical check up and examination. As per the medical certificate issued by the Medical Officer, the Doctor has opined that she is carrying 28 weeks' pregnancy. In the above stated facts and circumstances, the petitioner has approached this Court by way of filing the present petition seeking permission for termination of pregnancy of minor in respect of her well being future and life.
3. Heard learned advocate for the petitioner and learned APP for the respondent State.
4. At this stage, it would be fruitful to refer to Section 3 of the Medical Termination of Pregnancy Act, 1971, which reads as under:-
"3. When Pregnancies may be terminated by registered medical practitioners.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), 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:-Page 2 of 5 Downloaded on : Wed Jul 03 02:24:17 IST 2019
R/SCR.A/5859/2019 ORDER
(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 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 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 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.
(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 lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman."
5. On 27.05.2019, this Court passed following order:-
"1. Rule, returnable on June 31, 2019. Learned APP waives service of notice of Rule on behalf of the respondent-State.Page 3 of 5 Downloaded on : Wed Jul 03 02:24:17 IST 2019
R/SCR.A/5859/2019 ORDER
2. In the meantime, learned APP shall instruct the Medical Board, Civil Hospital, Ahmedabad to undertake necessary medical tests of the prosecutrix and submits its opinion to this Court with regard to the mental and physical fitness of the prosecutrix.
3. Copy of this order shall be given to learned Additional Public Prosecutor for onward communication and due implementation of the order, FORTHWITH. Direct service is permitted."
6. In pursuance of above-referred order, the R.M.O., Civil Hospital, Ahmedabad has forwarded the opinion vide letter dated 30.05.2019 of the concerned doctor in respect of victim petitioner, which reads as under:-
"The patient (victim) is having a history of 7 months amenorrhea. She has no other medical symptoms at present.
Her LMP (Last menstrual period) is 13.10.2018 Accordingly her expected date of delivery is 20/7/2019 The patients is hemodynamically stable at present. Her routine blood investigations are are within normal range. Her ultrasound is suggestive of intrauterine fetus of approximate maturity of approximately 29 weeks and whose growth is appropriate for gestational age. The expected fetal weight at present is 1424 gm.
Her psychiatric and psychological assessment done at Civil Hospital Ahmedabad suggests that the patient is suffering from depressive disorder along with symptoms of Post Traumatic Stress Disorder.
She is not having any other medical ailment at present.
In response to High Court a panel of the following gynecologists was formed :
# Dr. Shirish Toshniwal (Assistant Professor) # Dr. Pravin Jadav (Assistant Professor) With regards to termination of pregnancy it is opinion of this panel :Page 4 of 5 Downloaded on : Wed Jul 03 02:24:17 IST 2019
R/SCR.A/5859/2019 ORDER
- The gestational age of this pregnancy is 29 weeks
which is beyond permissible gestational age limit when pregnancy can be permitted under MTP act of India
- The fetus is viable (i.e. beyond 28 weeks of gestation) but preterm (i.e. < 37 weeks)
- Preterm termination of pregnancy is theoretically possible by induction of labour (i.e. by using medicines to artificially stimulate the labour pain) with inherent risks of normal delivery. However this has a significant risk of failure at this gestational age - to put it simply, the preterm cervix (neck of womb) may not respond adequately to allow for successful vaginal delivery. Moreover the young age of patients ( i.e. 15 years) also increases the risk of abnormal labour.
In such circumstances the patient may then require a caesarean section (i.e. surgical removal of fetus through abdominal route) with inherent risks of surgery and anesthesia.
- While there is a possibility that continuation of pregnancy may cause psychological morbidity to patients (i.e. affect mental health of patient), the affect of preterm delivery on new born may also need to be weighed in. Preterm delivery of a viable fetus increases the risk of its mortality and in case of survival increases risk of both its short term and long term morbidity."
7. Under the circumstances, considering the peculiar facts of the present case and opinion given by the concerned Doctor of Civil Hospital, Ahmedabad, respondent No.2-Medical Officer, Civil Hospital, Ahmedabad is directed to undergo termination of pregnancy of the petitioner after undertaking necessary medical tests about her physical and mental fitness as required under the Medical Termination of Pregnancy Act, 1971.
8. With the above direction, this application is allowed.
9. Rule is made absolute to the aforesaid extent.
(R.P.DHOLARIA, J) chandrashekhar Page 5 of 5 Downloaded on : Wed Jul 03 02:24:17 IST 2019