Gujarat High Court
A B C (Victim) Thro Aapsinghbhai ... vs State Of Gujarat on 19 October, 2022
R/SCR.A/11012/2022 ORDER DATED: 19/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11012 of 2022
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A B C (VICTIM) THRO AAPSINGHBHAI BANDRABHAI RATHAVA
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
MS. MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 19/10/2022
ORAL ORDER
1. The minor daughter of the petitioner is a victim of rape and thereby filed complaint against accused person being F.I.R. No.11821050220223 of 2022 dated 01.10.2022 for the offences punishable under Sections 363, 366, 376(2)(n), 504 and 506(2) of the of the Indian Penal Code read with Sections 6 and 8 of the POCSO Act registered with Sagtala Police Station, Dahod.
2. The minor daughter of the petitioner is carrying pregnancy of more than 17 weeks. After having came to know about existence of pregnancy, termination of pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 contemplated. The experts have opined that considering her reports, it is advisable to undergo MTP under MTP Act which is in her faith and for her well- being.
3. The minor daughter of the petitioner is carrying unwanted pregnancy and thereby at her risk, petitioner approaches this Court for seeking direction upon the respondent authority to termination pregnancy of the victim at her risk.
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4. This Court on 14th October, 2022 while issuing notice, passed the following order.
Issue NOTICE to the respondents, returnable on 19th October, 2022. Ms. Moxa Thakkar, learned Additional Public Prosecutor appears and waives service of notice for and on behalf of the respondents - State.
Considering the fact and keeping in mind with the urgency of the matter, the following interim order is required to be passed:
"A detailed medical report needs to be called for before permission of termination of pregnancy is acceded to. And therefore, the Medical Superintendent, Civil Hospital, Ahmedabad is directed to cause to examine the petitioner by a panel of senior-most Gynecologists of the Civil Hospital. The aforesaid team of doctors shall examine the victim on 17th October, 2022 and after an interaction with her, shall give in writing opinion at the earliest, bearing in mind the advanced stage of pregnancy and her physical and mental condition, whether there will be a substantial risk to the life of the petitioner, if the child was born, or that the child would suffer from such physical or mental abnormalities as to be seriously handicapped. A copy of this order shall be furnished to the learned advocates appearing for the respective sides for follow up action. Intimation of this order shall be sent to the Medical Superintendent of Civil Hospital, Ahmedabad forthwith by the learned APP Ms. Moxa Thakkar, appearing for the respondent-State. Let this matter appear on 19th October, 2022 with the report of the experts.
Direct service is permitted."
5. Today, report dated 18th October, 2022 is produced on record. It appears that the minor daughter of the petitioner was examined by two experts viz. Dr. Swati Patel, Ass. Professor and Gynecology Department and Dr. Ankit Taviyad, Assistant Professor, Obsetrics Gynecology Department and Dr. Archana Sisodia, Assistant Prof. Obstetrics Gynecology, GMERS Medical College, Sola, Ahmedabad, which is taken on record. From the said report, it is evident that the according to LMP, at present the gestational age is 17 weeks 5 days Page 2 of 5 Downloaded on : Fri Oct 21 20:23:34 IST 2022 R/SCR.A/11012/2022 ORDER DATED: 19/10/2022 and according to ultra sonography on 17.10.2022, gestational age is 17 weeks 4 days. As pregnancy is below 24 weeks, so this patient's pregnancy can be terminated with usual risks associated with such conditions keeping in mine the age of the patient. Also allied fitness of pediatrics, medicines psychiatry and anesthesia departments has been obtained and investigations have been done which are within normal limits. Medication termination employed for termination of pregnancy at this maturity of fetus may result in failure in more than 40-5-% of cases, in which case cesarean delivery will be required, which is associated with its own morbidity and mortality and anesthetic risks. Informed consent of the guardian will be required for performing MTP after explaining the entire likely outcome. Also, appropriate guidelines need to be provided and provisions made for testing of aborts for paternity.
6. In view of the aforesaid, issue Rule, returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent - State.
6.1 Considering the peculiar nature of facts, this matter is taken up for final consideration today.
7. Learned advocates appears for both the sides submitted that when doctors have clearly opined that while undergoing MTP procedure there is no risk to the victim, in that event, the minor daughter of the petitioner who is a rape victim, should not be let carrying unwanted pregnancy.
8. On overall consideration of the matter, it appears that the minor daughter of the petitioner is desirous to terminate pregnancy Page 3 of 5 Downloaded on : Fri Oct 21 20:23:34 IST 2022 R/SCR.A/11012/2022 ORDER DATED: 19/10/2022 at her own risk, the minor daughter of the is permitted to undergo medical termination of pregnancy at Civil Hospital, Sola, Ahmedabad.
8.1 Accordingly, Superintendent, GMERS College & Civil Hospital, Sola, Ahmedabad, is requested to arrange for medical termination of pregnancy of the minor daughter of the petitioner at the earliest.
9. Resultantly, it is directed that the best medical facility be made available by ensuring proper care and supervision, termination of pregnancy shall be carried out. The doctors shall take necessary tissue from the fetus for DNA identification by following scientific practice prescribed by the Standard Medical Practice for DNA identification.
9.1 It is, however, clarified that minor daughter of the petitioner shall undergo the procedure of MTP at her own risk and it is further clarified that doctors who have put their opinion on the record, shall have the immunity in the event of occurrence of any litigation arising out of the instant petition.
10. It is further requested the Superintendent, GMERS & Civil Hospital, Sola, Ahmedabad to ensure the best medical treatment through the senior most Gynecologists of his confidence. Once termination of the pregnancy proceedings is over, the Superintendent, Civil Hospital, GMERS Medical College & Civil Hospital, Sola, Ahmedabad shall also depute one senior most Gynecologist to ensure that the periodical treatment as and when required by the victim, be given adequately.
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11. The concerned office of the District Legal Services Authority is hereby directed to see that the victim shall get the interim compensation at the earliest.
12. The Superintendent, GMERS College & Civil Hospital, Sola, Ahmedabad shall discharge the victim after completion of the termination proceedings after examining the victim and finding suitable to do so. Till then, the victim shall be kept in the Hospital.
13. The present petition is disposed of accordingly. Rule is made absolute accordingly. There shall be order as to costs. Direct service today is permitted.
(NIRAL R. MEHTA,J) VISHAL MISHRA Page 5 of 5 Downloaded on : Fri Oct 21 20:23:34 IST 2022