Gujarat High Court
Hansaben Darshanbhai Shekha vs State Of Gujarat on 24 February, 2020
Author: S.H.Vora
Bench: S.H.Vora
R/SCR.A/1291/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1291 of 2020
==========================================================
HANSABEN DARSHANBHAI SHEKHA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MEHUL A SURATI(7870) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 24/02/2020
ORAL ORDER
1 With the consent of learned advocate for the petitioner and learned APP, present petition is taken up for final disposal, in view of short but serious issue involved in the application.
2. Present petition is preferred by the mother of the victim minor girl under Article 226 of the Constitution of India read with the provisions of the Medical Termination of Pregnancy Act, 1971.
3. On 19.02.2020, this Court passed the following order :-
"Notice returnable on 24.02.2020. Learned APP waives service of notice on behalf of the respondent - State. Meanwhile, let the minor victim - Himani D/o. Hansaben Darshanbhai Shekha 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 guidelines to know her mental and psychological preparedness.Page 1 of 5 Downloaded on : Mon Feb 24 22:45:20 IST 2020
R/SCR.A/1291/2020 ORDER Copy of this order be provided to learned APP forthwith. Direct service is permitted today."
4. Pursuant to the order dated 19.02.2020, learned APP has received report of panel of Doctors dated 21.02.2020, Civil Hospital, Ahmedabad. The said report is ordered to be taken on record. The victim minor girl viz. Ms. Himani D/o. Hansaben Darshanbhai Shekha is examined by three panel of Doctors of Civil Hospital, Ahmedabad viz. Senior Resident, Dept. of Obst. And Gynecology, B.J.Medical College, Civil Hospital, Ahmedbaad. Assistant Professor, Obsetrics Gynecology Department, Civil Hospital, Ahmedabad and Dr. A.U.Mehta, Professor and Head, Deptt. Of Obst. Gyn. B.J.Medical College, Ahmedabad.
5. Panel of Doctors in terms opined as under :-
(1) Patient named Himani D/o. Darshanbhai Shekha aged 13 years was examined on 21/02/2020 having a pregnancy resulting from alleged history of sexual assault. She was also admitted on 08/02/2020 for medicolegal examination with pus collection in vagina for which she was treated (examination under anesthesia, draining of pus from vagina and anitibiotics on 14/02/2020) (2) As on today, she appears psychologically stable and her physical examination reveals a pregnancy of 23 weeks 03 days with live fetus weighing approximately 562 grams (on ultrasonographic examination done by Radiologist, Civil Hospital, Ahmedabad dated 21/02/2020). Her physical condition is fit for termination of pregnancy and she and her mother are willing to terminate her pregnancy.
(3) The psychologist's and psychiatric evaluation report is enclosed herewith.
(4) Termination of pregnancy could be carried out safely medically, if permission granted, with possibilities of due risk of haemorrhage, incomplete abortion requiring second step surgical evacuation and failure of Page 2 of 5 Downloaded on : Mon Feb 24 22:45:20 IST 2020 R/SCR.A/1291/2020 ORDER medical method of termination requiring surgical removal (due to Teen age pregnancy).
Report of Psychologist and Psychiatry reads as under -
"Patient name Himani D/o. Darshanbhai Shekha aged 13 years was examined on 21.02.2020 having a pregnancy resulting from alleged history of sexual assault. She was examined by Dr. Minakshi N. Parikh, Dr. Pragna M. Sorani found to be psychologically stable, in corroboration with psychologist after doing VSMS "Patient is averagely mature as per her age of 13 year".
She does not understand the impact of the incident that has happened with her and the future impacts on her life due to her pregnancy. She is not expected to be able to take care of herself and of the child independently, her parents also do not wish to continue the pregnancy, so medical termination of pregnancy can be carried out."
6. This Court has heard both the sides and considered the opinion / report duly signed by panel of Doctors, Civil Hospital, Ahmedabad submitted by them through learned APP to this Court.
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 21.02.2020, pregnancy of 23 weeks 03 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, Page 3 of 5 Downloaded on : Mon Feb 24 22:45:20 IST 2020 R/SCR.A/1291/2020 ORDER named in the FIR being C.R.No.I-11191002200061 registered with Ranip Police Station for the offence punishable under section 376(2)(f), 376(2)(n), 376(a)(b), 506(2) of IPC and under section 5(L), 5(M), 5(N), 6 of the POCSO Act.
10. The victim minor girl is already carrying about 23 weeks and 3 days of pregnancy with specific report / opinion of panel of Doctors that termination of pregnancy is medically feasible. No doubt, pregnancy exceeds 23 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 minor girl.
11. At this stage, the Court has considered the decision wherein 'the best interest' theory for the victim minor 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 minor 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 panel of Doctors, Civil Hospital, Ahmedabad forthwith by the learned APP. Copy of this order shall also be sent by the Registry to the Page 4 of 5 Downloaded on : Mon Feb 24 22:45:20 IST 2020 R/SCR.A/1291/2020 ORDER Civil Hospital, Ahmedabad.
13. Since the pregnancy of victim exceeds 23 weeks as of now, the Court directs three senior most Gynecologists of Civil Hospital, Ahmedabad to examine the victim minor girl and also by psychologist attached to the Government Medical College, Ahmedabad. The said team of Doctors shall examine the victim minor girl Ms.Himani D/o. Hansaben Darshanbhai Shekha 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 minor girl to apply for interim compensation before the Chairman, District Legal Services Authority, Ahmedabad and on such request being made 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 : Mon Feb 24 22:45:20 IST 2020