NEUTRAL CITATION
R/SCR.A/12452/2023 ORDER DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12452 of 2023
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XYZ
Versus
STATE OF GUJARAT
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Appearance:
MR. NISHIT P GANDHI(6946) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1 to 3
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 26/09/2023
ORAL ORDER
1. By way of this petition, the petitioner has prayed for the following reliefs;
(A) Your Lordships be pleased to direct to terminate the pregnancy of the victim girl at the earliest at nearest Civil Hospital and (B) Pending admission and final disposal of this petition, the Hon'ble Court may be pleased to direct the concern respondents authorities to constitute committee of Medical Officers to consider the termination of pregnancy as accordance with the rules on appropriate terms and conditions in the interest of justice, and (C) Grant any other relief or pass any other order which Page 1 of 6 Downloaded on : Tue Sep 26 20:49:26 IST 2023 NEUTRAL CITATION R/SCR.A/12452/2023 ORDER DATED: 26/09/2023 undefined the Hon'ble Court may consider just and proper in the facts and circumstances of the case.
2. Pursuant to the order dated 20.09.2023 passed by this Court, today, learned APP Mr.H. K. Patel produced medical report of the victim girl dated 21.09.2023 prepared by the panel of Doctors of Sir Takhatsinhji Hospital, Bhavnagar. The same is taken on record. For ready reference, the said report is reproduced hereunder:
"Patient poor built and well nourished. Patient conscious, cooperative and well oriented to time, place and person.
Temperature: Normal, Pulse: Normal Blood Pressure: 100/70 mmHg Respiratory system: Bilateral Air Entry equally present. Cardiovascular system: S1S2 present Secondary sexual characteristic: Well developed No any external injury mark present over body. On Per Abdominal Examination: pregnancy 28-30 week size.
Longitudinal lie Cephalic presentation Head Floating, FHS: Present 140/minute Uterus: No uterine contraction.
Any evidence of external injury mark- Not present. Per Speculum: Hymen torn, old healed tear presents at 03 Page 2 of 6 Downloaded on : Tue Sep 26 20:49:26 IST 2023 NEUTRAL CITATION R/SCR.A/12452/2023 ORDER DATED: 26/09/2023 undefined o'clock and 6 o'clock position, No bleeding. Any evidence of external injury mark-Not present. Investigation: Urinary pregnancy test was positive on 14.09.2023 at 02.00 am, all routine antenatal investigation profile was within normal rage. Ultrasonography of abdomen & pelvis on 14.09.2023- findings suggestive of-single live intrauterine fetus with gestational age of 28 weeks 05 days pregnancy with baby weight approximately 1216 grams.
3. As per the opinion given by the panel of Doctors in the form of the report dated 21.09.2023, the victim girl is carrying pregnancy of 28 weeks and 5 days and no significant systemic abnormality has been detected and as per opinion of panel of doctors, termination can be made.
4. Considering the medical report of the victim, this Court is of the considered opinion that victim girl is hereby permitted to terminate her pregnancy.
5. At this juncture, a reference to the judgment rendered by the Apex Court in case of X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Another reported in AIR 2022 SC 4917 would be apposite. In paragraphs-99 & 116, it has been observed as under;
"99. The right to reproductive autonomy is closely linked with the right to bodily autonomy. As the term itself suggests, bodily Page 3 of 6 Downloaded on : Tue Sep 26 20:49:26 IST 2023 NEUTRAL CITATION R/SCR.A/12452/2023 ORDER DATED: 26/09/2023 undefined autonomy is the right to take decisions about one's body. The consequences of an unwanted pregnancy on a woman's body as well as her mind cannot be understated. The foetus relies on the pregnant woman's body for sustenance and nourishment until it is born. The biological process of pregnancy transforms the woman's body to permit this. The woman may experience swelling, body ache, contractions, morning sickness, and restricted mobility, to name a few of a host of side effects. Further, complications may arise which pose a risk to the life of the woman. A mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy. Therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.
116. In the context of abortion, the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the state. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well- being also injures the dignity of women."
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6. In a recent decision rendered by the Apex Court in Criminal Appeal arising out of S.L.P. (Cri.) Dy. No.33790 of 2023 dated 21.08.2023, by relying upon the judgment rendered in X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Another's case (supra), the Apex Court ordered to conduct medical termination of pregnancy of the victim.
7. In this backdrop, it would be beneficial to refer to a recent decision of the Kerala High Court in the case Aryamol Vs. Union of India and Ors., wherein in the facts and circumstances of the case, the High Court has gone to the extent of saying that the consent of the husband is not required in a case where the wife desires to terminate her pregnancy thereby giving respect to the desire of the woman and significance to her dignity.
8. If the victim does not want to continue with her pregnancy then this Court cannot compel her to continue her pregnancy.
9. In the result, the application is allowed. The respondent No.3 herein, the Medical Officer/Superintendent, Sir Takhatsinhji General Hospital, Bhavnagar is directed to take necessary steps for undertaking the procedure of medical termination of pregnancy of the petitioner-victim girl and Page 5 of 6 Downloaded on : Tue Sep 26 20:49:26 IST 2023 NEUTRAL CITATION R/SCR.A/12452/2023 ORDER DATED: 26/09/2023 undefined conclude the procedure preferably within a week from today. The respondent No.2-Police Sub Inspector, Vallbhipur Police Station, Bhavnagar is directed to take necessary steps, on urgent basis, so that the procedure of medical termination of pregnancy of the victim girl could be undertaken and concluded within a period of one week from today. It is expected that the respondent-authorities concerned would take necessary care, sensitivity and caution so that the procedure of medical termination of pregnancy of the victim girl could be undertaken smoothly keeping in mind the age as well as mental and physical health of the victim girl.
10. The respondents No. 2 and 3 are directed to do the needful to preserve the subsequent DNA Test Report by drawing tissues from the foetus for the purpose of using it as a piece of evidence in the ensuing trial.
11. With the above directions, the petition stands disposed of.
Rule is made absolute. Direct service TODAY is permitted. A copy of this order be provided to the learned APP for onward communication and necessary action. Liberty to apply in case of difficulty.
(SAMIR J. DAVE,J) K. S. DARJI Page 6 of 6 Downloaded on : Tue Sep 26 20:49:26 IST 2023