Parvat Rupalbhai Bhabhor vs State Of Gujarat on 23 July, 2021

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Gujarat High Court

Parvat Rupalbhai Bhabhor vs State Of Gujarat on 23 July, 2021

Bench: Vipul M. Pancholi

     R/SCR.A/6878/2021                                  ORDER DATED: 23/07/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/SPECIAL CRIMINAL APPLICATION NO.                   6878 of 2021

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                PARVAT RUPALBHAI BHABHOR
                         Versus
                    STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
 for the Respondent(s) No. 2,3,4
MR LB DABHI APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                            Date : 23/07/2021
                                 ORAL ORDER

1. Rule. Learned APP Mr. L.B. Dabhi waives service of notice for respondents.

2. By way of the present petition under Articles 14 , 21 , 226 and 227 of the Constitution of India as well as under the provision of the Medical Termination of Pregnancy Act, 1971 and under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for following reliefs:

       "a. xxx xxx          xxx.

       b.       This Hon'ble Court may be please to issue a

writ of mandamus or any other appropriate writ, order(s) or direction (s) directing to the respondent no.4 authority to terminate the pregnancy of the daughter petitioner/victim girl, at the earliest, as the continuation of pregnancy would cause grave injury to the petitioner/victim as required under the provisions of the Medical Termination of Pregnancy Act, 1971, in the larger interest of justice;

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R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 c. Pending the admission and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent authorities to conduct medical termination of pregnancy to the petitioner/victim with the two qualified surgeons including Gynecologist and Obstetrician and in presence of qualified medical practitioner with proper care and precaution, so as to avoid any likelihood of any type to harm to the petitioner/victim girl, after necessary medical check-up, as required under the provisions of the Medical Termination of Pregnancy Act, 1971, in the larger interest of justice;

d. xxx xxx xxx."

3. Heard learned advocate, Mr. Maulik Soni appearing for the petitioner and learned APP Mr.L.B. Dabhi appearing for the respondents.

4. Learned advocate for the petitioner submits the accused named in the FIR produced at Annexure-B at Page Nos.14-16 of the compilation, after luring, enticing and intimidating, had taken away the minor daughter of the petitioner, for which, the petitioner has lodged aforesaid FIR. It is submitted that recently, the minor daughter of the petitioner (victim girl) and the accused were arrested and when the victim girl was examined by the Medical Officer, it was found that she was pregnant and, thereafter, the custody of the victim was handed over to the petitioner. It is submitted that thereafter after following necessary procedure with the help of concerned Police Officer, the victim girl was taken to Doctor for opinion for termination of the pregnancy and upon examination, the concerned Page 2 of 9 Downloaded on : Sun Jan 16 02:13:54 IST 2022 R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 Doctor, vide his report dated 22.06.2021, opined that the victim girl was having pregnancy of 13 weeks and 3 days as on 22.06.2021. It is submitted that the victim girl is a minor girl aged about 16 years. It is submitted that bearing and rearing of a child in the womb would create a great mental agony to her for her entire life and may invite other socio-economical problems.

5. Learned advocate for the petitioner has placed reliance upon the provision of the Medical Termination of Pregnancy (Amendment) Act, 2021 (hereinafter referred to "MTP Act, 2021" for short) and submitted that in the said provision, it is specifically provided that where there is any pregnancy alleged by the pregnant woman to have been caused by rape, anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Referring to the said provision, it is contended that the case of the daughter of the petitioner - victim girl falls in such criteria and thus, appropriate direction may be issued.

6. Learned advocate for the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in case of Ms. Z Vs. State of Bihar, reported in (2018) 11 SCC 572 as well as the judgment of this Court in case of Janak Ramsang Kanzariya (minor) through Manjuben Knazar Vs. State of Gujarat & Anr., reported in 2011 Cri.L.J. 1306. Relying upon the judgment of this Court, it is contended that in case of pregnancy of 12 Page 3 of 9 Downloaded on : Sun Jan 16 02:13:54 IST 2022 R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 weeks, permission was granted for termination of pregnancy. It is, therefore, urged that this petition be allowed and relief as prayed for be granted.

7. On the other hand, learned APP has taken through the factual aspects of the case and also verified the status of the victim girl. It is submitted that as per the order dated 20.07.2021 passed by this Court, the concerned Investigating Officer has taken the victim girl to Medical Officer, Sola Civil Hospital, Ahmedabad for medical examination on 21.07.2021 and after medical examination, the concerned Medical Officer has submitted his opinion, which is taken on record. It is pointed out by learned APP that the concerned Medical Officer of Sola Civil Hospital, Ahmedabad, after carrying out medical examination of the victim girl, has given positive opinion about the termination of pregnancy. It is, therefore, urged that appropriate order be passed.

8. This Court has heard learned advocate, Mr.Maulik Soni appearing for the petitioner and learned APP Mr. L.B. Dabhi appearing for the respondents. I have also considered the documents produced on record including the opinion given by the concerned Doctor.

9. Section 3 of the Medical Termination of Pregnancy (Amendment) Act, 2021 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 Page 4 of 9 Downloaded on : Sun Jan 16 02:13:54 IST 2022 R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 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 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 to the pregnant woman's actual or reasonable foreseeable environment.

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R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 (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."

10. The opinion given by the Medical Officer of Sola Civil Hospital in pursuance to the order passed by the Coordinate Bench of this Court after medical examination of the victim girl reads as under, "Formation of committee:

Dr. Janki Patel (Assistant Professor) Dr. Pallavi Ninama (Associate Professor) Dr. Komal Modi (Assistant Professor) After carefully reviewing the history and examination, committee was of following opinion,  At present patient is having 17 weeks 3 days pregnancy according to USG dated 21/7/2021.  Pregnancy can be terminated with usual risk associated with such condition keeping in mind age of the patient.

 Informed consent of the guardian will be required for performing MTP after explaining the entire likely outcome.

 Also allied fitness of paediatric, anesthetist and psychriatric is taken after all necessary investigations done.

 After opinion and fitness of allied medical specialties termination can be done.  The medical methods (Mifepristone and Misoprostol) employed for termination of pregnancy at this maturity of foetus may result in failure in which case Hysterotomy will be required which is associated with its own morbidity & mortality and Page 6 of 9 Downloaded on : Sun Jan 16 02:13:54 IST 2022 R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 anesthesia risks.

 Also appropriate guidelines need to be provided and provisions made for testing of Abortus for paternity.

 Conclusion: pregnancy can be terminated with usual risk associated with such condition after honourable judge's permission."

11. Thus from the above provision, it is clear that as per Section 3 of the MTP Act, 2021, where the length of pregnancy does not exceed 12 weeks, the registered Medical Practitioner and where such length of pregnancy exceed 12 weeks but does not exceed 20 weeks, two Medical Practitioners can terminate the pregnancy, however, they have to form an opinion that the continuation of pregnancy would invoke a risk to the life of the pregnant woman or of grave injury to her physical life of the pregnant woman or of grave injury 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. Thus on perusal of Section 3 of the MTP Act, 2021, it is clear that this provision allows abortion only if specific conditions are met with. Therefore on perusal of the opinion given by the Medical Officer after medical examination of the victim girl, it is clear that the Medical Officer has categorically opined that the pregnancy can be terminated. Here in the facts of the present case, pregnancy is of 17 weeks and 3 days, therefore, the Medical Practitioner/s cannot on its own Page 7 of 9 Downloaded on : Sun Jan 16 02:13:54 IST 2022 R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 terminate the pregnancy. If they terminate the pregnancy without the order of the Court, the act of the doctor amounts to an offence punishable under the Indian Penal Code or for any other for time being in force. Further, in this case, the victim girl is pregnant because of forcible rape of incident by the accused. As per the contents of the petition, it is submitted that because of continuation of pregnancy, it would cause or constitute a grave injury to the mental health of the minor - victim coupled with the fact that bearing and rearing of child in the womb would create a great mental agony to her for her entire life and invite many other socio-economical problems. This can be said to be a grave injury to the mental health of the pregnant woman.

12. This Court has also considered the judgment upon which reliance has been placed by learned advocate for the petition in case of Janak Ramsang Kanzariya (supra). In that case also, the Court has granted permission for termination of pregnancy of 12 weeks. This Court has also considered the judgment of Hon'ble Supreme Court in case of Sarmistha Chakraborty Vs. Union of India reported in (2018) 13 SCC 339, where also the Hon'ble Supreme Court has granted permission to terminate the pregnancy of 25 weeks.

13. Considering the contents of the petition, provision of the applicable law, ratio laid down by the Hon'ble Supreme Court in above referred cases, right of privacy of the victim girl, Page 8 of 9 Downloaded on : Sun Jan 16 02:13:54 IST 2022 R/SCR.A/6878/2021 ORDER DATED: 23/07/2021 medical reports and bearing in mind the best interest principle, as discussed hereinabove, this Court is of the view that the present petition deserves to be allowed as prayed for only with a view to save and protect the life of the victim girl.

14. Therefore, the present petition stands allowed.

The concerned Doctors are permitted to terminate the pregnancy of the victim girl with due risk after ANC profile report, as requested by the petitioner. The Medical Superintendent, Sola Civil Hospital, Ahmedabad shall handover, in scientific manner, the tissues drawn from the fetus for DNA identification to the Investigating Officer of the crime registered by the petitioner against the accused at Halvad Police Station, Morbi for onward transmission of the same to the concerned Forensic Science Laboratory.

15. Rule is made absolute to the aforesaid extent.

Direct service today is permitted.

16. Registry to provide a copy of this order to learned APP for onward communication to the learned advocate for the petitioner, to the concerned Investigating Officer and Sola Civil Hospital, Ahmedabad for follow up action.

Sd/-

(VIPUL M. PANCHOLI, J.) Gautam Page 9 of 9 Downloaded on : Sun Jan 16 02:13:54 IST 2022

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