Najmaben D/O Noor Mohammad ... vs State Of Gujarat

    R/SCR.A/2470/2023                                      ORDER DATED: 23/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 2470 of 2023

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          NAJMABEN D/O NOOR MOHAMMAD ABDULBHAI SIPAI
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR IMTIYAJ M KURESHI(5301) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                  Date : 23/02/2023

                                   ORAL ORDER

1. On 21.02.2023, this Court passed following order:-

"1. Notice, returnable on 23.02.2023. 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, Medical Superintendent, GMERS Medical College & General Hospital, Vadnagar, Dist. Mehsana, is directed to examine the victim (minor) by a panel of senior-most Gynecologists of the General Hospital at Vadnagar. The aforesaid team of doctors shall examine the victim tomorrow i.e. on 22.02.2023 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 Page 1 of 4 Downloaded on : Fri Feb 24 20:53:28 IST 2023 R/SCR.A/2470/2023 ORDER DATED: 23/02/2023 terminate her pregnancy. The doctors 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, GMERS Medical College & General Hospital, Vadnagar, Dist. Mehsana and Kadi Police Station, Dist. Mehsana, today itself. It is directed that, Police Inspector, Kadi 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, opinion /report dated 22.02.2023 is prepared by the panel gynecologist, which is taken on record. From the said report, it is evident that the victim is having 19 weeks and 4 days pregnancy.

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

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

5. However, Mr. Kureshi, learned advocate for the petitioner strongly urged, upon the instructions of his client that the petitioner is a father of 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 Page 2 of 4 Downloaded on : Fri Feb 24 20:53:28 IST 2023 R/SCR.A/2470/2023 ORDER DATED: 23/02/2023 No.8772 of 2019.

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 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 victim is desirous of termination of pregnancy at her own risk, the victim is permitted to undergo medical termination of pregnancy at GMERS Medical College & General Hospital, Vadnagar, Dist. Mehsana. Accordingly, the Medical Superintendent, GMERS Medical College & General Hospital, Vadnagar, Dist. Mehsana is requested to arrange for the procedure of medical termination of pregnancy of victim 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 victim 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, GMERS Medical College & General Hospital, Vadnagar, Dist. Mehsana shall act accordingly.

R/SCR.A/2470/2023 ORDER DATED: 23/02/2023

9. Liberty is reserved in favour of the victim/petitioner to apply for interim compensation before the Chairman, District Legal Services Authority, Mehsana 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.

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 : Fri Feb 24 20:53:28 IST 2023