Sonu Bhaveshbhai Zalavadiya Thro ... vs State Of Gujarat

    R/SCR.A/2356/2023                                  ORDER DATED: 20/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 2356 of 2023

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 SONU BHAVESHBHAI ZALAVADIYA THRO ASMITABEN BHAVESHBHAI
                       ZALAVADIYA
                          Versus
                    STATE OF GUJARAT
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Appearance:
S M KIKANI(7596) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 20/02/2023

                               ORAL ORDER

1. On 17.02.2023, this Court passed following order:-

"1. Notice, returnable on 20.02.2023. Ms. Jhala, learned APP waives service of Notice for the respondent - State.

2. Meanwhile, a detailed medical report needs to be called for before permission of termination of pregnancy is acceded to and therefore, the Medical Superintendent/RMO, New Civil Hospital, Surat, is directed to examine the victim (minor) by a panel of senior-most Gynecologists of Civil Hospital, Surat. The aforesaid team of doctors shall examine the victim tomorrow i.e. on 18th February, 2023 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 victim, if the child would born as well as to ascertain whether termination of pregnancy medically feasible considering the fact that, she allegedly victim of rape and her guardian intent to terminate her pregnancy. The doctors Page 1 of 4 Downloaded on : Mon Feb 20 21:04:47 IST 2023 R/SCR.A/2356/2023 ORDER DATED: 20/02/2023 concerned shall follow settled guidelines to know her mental and physiology mental preparedness.

3. Copy of this order be mailed to learned advocates appearing for both the sides for onward communication. Registry is directed to mail this order to Medical Superintendent/RMO, New Civil Hospital, Surat and Gadodra Police Station, Surat City today itself. It is directed that, Police Inspector, Gadodra Police Station shall depute one woman constable escorting the victim for necessary examination at Hospital.

Direct service is permitted today."

2. As per the above order, a report dated 18.02.2023 is prepared by the Asst. Professors, Dept of OBS and GYN, Government Medical College, Surat, which is taken on record. From the said report, it is evident that the petitioner is having 20 weeks and 6 days pregnancy.

3. Rule. Learned APP waives service of rule for and on behalf of the respondent-State.

4. Ms. Mehta, learned APP has pointed out that medical advice is against the present petitioner since the pregnancy is at advance stage and it would be injurious to both the petitioner and the child.

5. However, Mr. Kikani, learned advocate for the petitioner strongly urged, upon the instructions of his client that the petitioner is a victim and she may be allowed to abort the child at her own risk, and he has placed reliance upon the judgment dated 13.08.2019 passed by Hon'ble Bombay High Court in Writ Petition No.8772 of 2019.

R/SCR.A/2356/2023 ORDER DATED: 20/02/2023

6. At this stage, the Court has considered the decision wherein 'the best interest' theory for the victim 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 petitioner - victim 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

7. On the overall consideration of the matter on record, it appears that since the petitioner is desirous of termination of pregnancy at her own risk, the petitioner is permitted to undergo medical termination of pregnancy at New Civil Hospital, Surat. Accordingly, the Medical Superintendent/RMO, New Civil Hospital, Surat is requested to arrange for the procedure of medical termination of pregnancy of petitioner at the earliest.

8. It is clarified to the learned advocate for the petitioner and the petitioner also about the risk factors involved and that petitioner shall undergo the procedure of medical termination of pregnancy at her own risk. It is further made clear that the doctors, who have put their opinion on record, shall have the immunity in the event of occurrence of any litigation arising out of the instant Petition. Rule is accordingly made absolute. All concerned including the Medical Superintendent/RMO, New Civil Hospital, Surat shall act accordingly.

9. Liberty is reserved in favour of the victim/petitioner to apply for interim compensation before the Chairman, District Legal Services Authority, Surat and on such request being made by Page 3 of 4 Downloaded on : Mon Feb 20 21:04:47 IST 2023 R/SCR.A/2356/2023 ORDER DATED: 20/02/2023 the victim in this regard, the concerned Chairman, District Legal Services Authority after following prescribed procedure shall award interim compensation in accordance with law.

10. With above directions, present petition stands disposed of. Direct service today is permitted.

(ILESH J. VORA,J) SUCHIT Page 4 of 4 Downloaded on : Mon Feb 20 21:04:47 IST 2023