Gujarat High Court
A B C vs State Of Gujarat on 8 November, 2023
NEUTRAL CITATION
R/SCR.A/14889/2023 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 14889 of 2023
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ABC
Versus
STATE OF GUJARAT
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Appearance:
MR PV PATADIYA(5924) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
MR DHAWAN JAISWAL, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 08/11/2023
ORAL ORDER
1. The mother of the victim has approached this Court seeking following relief:-
"Your Lordships may be pleased to issue appropriate writ or order or direction to the respondent authority to terminate the pregnancy of the petitioner who is aged 12 years and 6 months, at the earliest, as the same being in the best interest of the victim, considering her very young age, physical health and incident of rape causing grave injury to her mental health and further be pleased to direct the respondent no. 3 to hand over, in scientific manner, the tissues drawn from the fetus for DNA identification to the Police Inspector, Rajpipla Police Station, Narmada for onward transmission of the same to the concerned Forensic Science Laboratory, interest of justice."
2. Since minor is the victim of sexual abuse, her identity has not been disclosed in this order and she has been referred to as the 'minor' or the 'victim' in the entire order.
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3. The facts taken out from the petition, are as under:-
3.1 That the petitioner submits that her father has died before 1 year and her widow mother is residing at her parent's house.
That due to financial crises and other social issues, the petitioner used to reside with her aunt's (Faiba) house situates at Vadiya, Rajpipla, Narmada District and from there the minor- petitioner was pursuing her study. That periodically mother of petitioner used to visit with the petitioner and providing necessary articles such as clothes, money etc. 3.2. That uncle (Fuva) of the petitioner named Jayeshbhai Nipalbhai Vasava- (accused in FIR) used to abuse the petitioner physically and also make exploitation to the petitioner-minor, and therefore, petitioner got pregnant and when the petitioner's mother visited the house of her sister-in-law, at that time it was perceived looking to the stomach that the petitioner-minor is pregnant, and therefore petitioner- victim was brought at Civil Hospital, Rajpipla for medical check up, wherein the petitioner- minor was found to be pregnant and pregnancy was running about 7 months.
3.3. As soon as it was came into knowledge of the petitioner's mother that an offence under the provisions of POSCO Act, has committed against the minor- petitioner, immediately FIR came to be lodged from the Civil Hospital, Rajpipla itself which was registered as FIR No. 11823017231558 of 2023 for the offence u/s. 376 (2) (f), 376 (2) (h), 376 (2) (k), 376 (2) (n), 376 (2) (j), 376 (3) and 506(2) of the IPC and u/s 4, 5(L), 5(q) and 6 of the POCSO Act.
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4. On 6.11.2023, this court has passed following order:-
1. Notice returnable on 08.11.2023. Learned APP waives service of notice on behalf of the respondent - State. 1.1 Meanwhile, let the victim minor be examined by the empaneled Doctors at Sir Sayajirao Gayakwad General Hospital, Vadodara, consisting of Medical Superintendent, Senior Female Gynecologist and Psychologist. The victim 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. Moreover, the concerned Doctor shall also examine the viability of fetus as the pregnancy is at an advanced stage. Doctors concerned shall follow settled guidelines to know her mental and psychological preparedness.
The investigating officer shall made all necessary arrangements to see that before next date of hearing, the victim is examined.
Copy of this order be provided to learned APP forthwith. Direct service is permitted today. "
5. Learned advocate Mr. PV Patadiya for the victim, after reiterating the fact of the case would submit that the minor is the victim of sexual abuse, she is the victim of alleged offence of rape registered with Rjpipla Police Station, Narmada. It is further submitted that the minor has developed pregnancy of 26 weeks as on the date of the application. It is painfully submitted that she was sexually abused by the accused Jayesh Nepalbhai Vasava. It is further submitted that because of the sexual abuse, the minor has become pregnant and continuance of pregnancy would defame her in the society. It is also submitted that the minor would not be in a position to maintain the child as her mental and physical conditions are too feeble and weak and she is not fit either physically or mentally due to the Page 3 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023 NEUTRAL CITATION R/SCR.A/14889/2023 ORDER DATED: 08/11/2023 undefined incident in question. She is in trauma being result of the incident. It is also stated that considering the immature age of the minor, it is neither possible nor permissible to nurture and maintain the child and also considering that such aspect will tarnish the image and reputation in the society, it is urged to permit to terminate her pregnancy in accordance with law.
6. The mother of the victim present in the Court stated that it would be in the best interest of the victim to undergo termination of the pregnancy.
7. Section 3 of the Medical Termination of Pregnancy Act, 1971 (in short "the Act") reads as under:-
"SECTION 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 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 Page 4 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023 NEUTRAL CITATION R/SCR.A/14889/2023 ORDER DATED: 08/11/2023 undefined 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 subsection (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."
8. Before proceeding further to decision on issue, let refer opinion of the medical experts, which reads as under:-
"3. While doing Psychiatrist interview and evaluation it is found that she is having average intelligence, currently she is under stress due to unwanted catastrophic event and pregnancy. Her mother feels continuation of pregnancy will be stressful and embarrassing for her and their family. She has expressed her desire for termination of pregnancy of her daughter. She (abc) needs mental health professionals help in ongoing care.
4. At this gestational age, the risk of termination of pregnancy is higher than delivery at term.
5. At present she is having uncomplicated ongoing pregnancy. However like any other normal pregnancy, risks of development of complications in future and further course of pregnancy cannot be predicted at this stage.
6. As per recommendation of MTP amendment bill 2020 pregnancy upto 24 weeks can be terminated in Vulnerable women.
7. With regards to the fetus, it is a 26 weeks and 6 days fetus with estimated fetal weight of 986 grams and if delivered at this stage is likely to be live and viable. The baby has a fair chance of survival if given optimum care. However compared to a child delivered at full term, he/she has much greater risk of complications which may require intensive care support. This may also result in significant and serious permanent neuro- developmental sequel.
Final Opinion: Considering the emotional and social trauma Page 5 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023 NEUTRAL CITATION R/SCR.A/14889/2023 ORDER DATED: 08/11/2023 undefined associated with continuation of pregnancy and the desire of the victim and her mother; termination of pregnancy can be done with due risk."
9. This Court in the case of Suchita Srivastava vs. Chandigarh Administration reported in 2009 (3) GLH 468 in paragraph no. 19 observed thus-
''19. As evident from its literal description, the 'Best interests' test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.''
10. This Court in the case of Bhavikaben vs. State of Gujarat reported in 2016 (3) RCR(Cri) 362 while deciding a similar issue has observed thus-
''16... If the opinion of the team of Doctors is taken into consideration, it could be noticed that her mental status will adversely be affected, if pregnancy continues. She, therefore, falls under the criteria set out in the MTP Act. This continuance of pregnancy since involves grave injury to her mental health as her pregnancy being the result of rape, the anguish caused also is to beconstituted as a grave injury to the mental health of the victim, and therefore also, termination of pregnancy is permitted."
11. Explanation to the statutory provision u/s 3(2) of the Act spells 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.
12. In the facts and circumstances of the case on hand, this Page 6 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023 NEUTRAL CITATION R/SCR.A/14889/2023 ORDER DATED: 08/11/2023 undefined court finds that the right of bodily integrity calls for a permission to allow her to terminate her pregnancy. The opinion of the Doctors clearly warrant the inference that the continuance of the pregnancy involves the risk of a possible grave injury to her mental health as required by Section 3 (2)(i) of the Act. Section 5 of the Act permits termination of pregnancy beyond 20 weeks. The courts have expansively interpreting section 5 of the Act, to permit termination of pregnancy beyond 20 weeks, in circumstances where it is considered imperative to save life of the victim. Rule 3(b) of Medical Termination Pregnancy Rules, 2023 may also be pressed into service. One should not forget that the victim is minor. The Medical Board has opined that the victim is mentally and physically fit to undergo termination of the pregnancy and it will be safe to perform the termination. In these circumstances, it would be poignant to continue with the pregnancy for the minor, which is involuntary in nature. The unwillingness of parents and minor to continue the pregnancy is explicit and expected trauma both physical and mental shall be increased if such pregnancy is allowed to continue and may cause major risk to the body of the minor. In fact, it is her right to terminate the unwanted pregnancy. Therefore, it would be just and proper to permit termination of the pregnancy under the provisions of the Act.
13. 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 given by the Panel of Doctors is taken into consideration, let Page 7 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023 NEUTRAL CITATION R/SCR.A/14889/2023 ORDER DATED: 08/11/2023 undefined 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.
14. In report, it is submitted that the fetus if delivered at this stage, is likely to be alive and viable. The baby has a fair chance of survival if given optimum care. The pregnancy is at advanced stage of 26 to 28 weeks. There is unborn child, whose chance of surviving is fairly good. The MTP Amendment Bill permitted to terminate pregnancy upto 24 weeks for vulnerable woman. But, in the present case, the victim is aged about 13 years old. It is stated that the victim has been sexually assaulted by her near relative as her father has expired about one year. Since the family of the victim is coming from backward area, her mother was never knowing about the pregnancy as well as reaching of the pregnancy at advanced stage. There is risk, but in view of the report by the Medical Board and more particularly, considering emotional and social trauma associated with the victim, which is 13 years old, continuation of pregnancy is more problematic than terminating it.
15. For the foregoing reasons, this petition is allowed in terms of permitting termination of the pregnancy of the minor to be carried out by the concerned Civil Hospital at the earliest with medical facilities available to the victim girl and on ensuring proper care in pre-termination and post termination period. Since present victim is having more than 26 weeks pregnancy as of now, this court directs three senior most Gynecologists of concerned Civil Hospital to examine the victim girl with Page 8 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023 NEUTRAL CITATION R/SCR.A/14889/2023 ORDER DATED: 08/11/2023 undefined psychologist attached to the Hospital. The said team of Doctors shall examine the victim and after having interaction with her, undertake the procedure of surgery on urgent basis along with other required expert Doctors like Physician, Anesthetic etc. The Doctors performing termination procedure shall take necessary tissue from the fetus for DNA identification in scientific manner and shall hand it over to the Investigating Officer concerned for onward transmission of the same to the concerned FSL for analysis. If post termination of pregnancy, the victim requires to take treatment, the concerned Civil Hospital is directed to provide all necessary treatment and facility. Necessary permission shall be obtained by the concerned authority and investigating officer before going for termination. If the fetus delivered alive, the pre-natal care shall be given by the concerned Hospital and the entire cost shall be borne by the Government.
16. It would be open for the victim to move the Chairman of concerned District Legal Services Authority/Presiding Officer of POCSO Court, who in turn, after following prescribed procedure, shall award interim compensation in accordance with law.
17. In case if the fetus survives, it would be open for the learned APP to move the Court for necessary orders.
18. With above observations and directions, present petition stands disposed of. Direct service today is permitted.
19. Copy of this order also be provided to learned APP for Page 9 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023 NEUTRAL CITATION R/SCR.A/14889/2023 ORDER DATED: 08/11/2023 undefined onward transmission to the concerned Civil Hospital for taking necessary action.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 10 of 10 Downloaded on : Wed Nov 08 20:52:19 IST 2023