A B C / Victim Thro Dineshbhai ... vs The State Of Gujarat
2021 Latest Caselaw 5840 Guj

      R/SCR.A/5201/2021                                      ORDER DATED: 11/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO.                    5201 of 2021

==========================================================
         A B C / VICTIM THRO DINESHBHAI GAGUBHAI RATHOD
                              Versus
                THE STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR PV PATADIYA(5924) for the Applicant(s) No. 1
 for the Respondent(s) No. 2,3
MR DM DEVNANI, APP for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                               Date : 11/06/2021

                                  ORAL ORDER

1. Rule. Learned APP Mr. D. M. Devnani waives service of notice of Rule for the respondent - State.

2. Heard learned advocate Mr. P. V. Patadiya for the petitioner and learned APP Mr. D. M. Devnani for the respondent - State.

3. Learned advocate for the petitioner submits that FIR being C.R.No.11202002211297 of 2021 registered with City 'C' Division Police Station, Jamnagar for the offences punishable under Sections 376(2)(j), 376(2)(n), 114, 506(2) of IPC and Sections 4, 5(L), 5(q), 8, 9(L) of POCSO Act. It is mainly alleged that the accused No.1 viz. Deepak came into contact with the complainant when she went for labour work at the factory of Shri Rameshbhai Dangar. Before about 5

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

months of lodging of the FIR, though the complainant was minor, she was taken by the accused No.1 inside a room of the factory and committed rape on her for the first time and thereafter also he had committed rape for about five times. Moreover, before about 4 months, the accused No.2 viz. Piyush - son of owner of the factory had also committed rape for the first time after calling the complainant inside the office of the factory and also threatened her to kill her and drive her out from the job if she disclosed the said incident to anyone. Thereafter, he had also committed rape for about four to five times on different occasions and the complainant got pregnant and thereby both the accused have, in connivance with each other, committed the offence punishable under Sections 376(2)(j), 376(2)(n), 114, 506(2) of IPC and Sections 4, 5(L), 5(q), 8, 9(L) of POCSO Act.

4. It is further submitted that the age of the petitioner victim - complainant is 17 years and 8 months.

4.1. At this stage, it is submitted that the victim

- petitioner was found to be pregnant and therefore she informed her family members and during the course of medical treatment which was given on 31.05.2021, it was found that the victim was having pregnancy of 23 weeks and 2 days. It is submitted that the petitioner is a victim of rape case and her mental health coupled with the fact that bearing and rearing of a child in the womb would create a great mental

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

agony to her for her entire life and may invite other social economical problems and, hence, the petitioner has expressed her willingness to terminate her pregnancy through her father. It is further submitted that the father of the victim has produced a consent letter on behalf of minor petitioner. Petitioner is also willing to terminate her pregnancy. Learned advocate has referred the consent letter of father of petitioner, copy of which is placed on record at page

34.

5. Learned advocate for the petitioner has placed reliance upon the provision of Medical Termination of Pregnancy (Amendment) Act, 2021 (hereinafter referred to "MTP Act, 2021" for short) and submitted that in the said provision, it is specifically provided that where there is any pregnancy alleged by the pregnant woman to have been caused by rape, anguish cause by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Referring to the said provision, it is contended that the case of the petitioner - victim falls in such criteria and thus, appropriate direction may be issued.

6. Learned advocate for the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in case of Ms. Z Vs. State of Bihar, reported in (2018) 11 SCC 572 as well as the judgment of this Court in case of Janak Ramsang Kanzariya (minor) through Manjuben Knazar Vs. State of Gujarat & Anr.,

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

reported in 2011 Cri.L.J. 1306. Relying upon the judgment of this Court, it is contended that in case of pregnancy of 12 weeks, permission was granted for termination of pregnancy. It is, therefore, urged that this petition be allowed and relief as prayed for be granted.

7. This Court has passed an interim order on 07.06.2021, which reads as under:

1. This application is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following main relief/s:

"A. Your Lordships may be pleased to issue appropriate writ or order or direction to the respondent authority to terminate the pregnancy of the petitioner who is aged 17 years and 8 months, at the earliest, as the same being in the best interest of the victim, considering her very young age, physical health and incident of rape causing grave injury to her mental health and further be pleased to direct the respondent no.3 to handover, in scientific manner, the tissues drawn from the fetus for DNA identification to the Police Sub Inspector, City "C" Division Police Station, Jamnagar for onward transmission of the same to the concerned Forensic Science Laboratory, interest of justice;

B. Pending admission hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to conduct medical termination of pregnancy of the minor victim with two qualified surgeons including Gynecologist, Obstetrician and in presence of qualified

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

physician with due care and precaution after carrying out necessary medical check­up, so as to avoid any likelihood of untoward harm to the physical or mental health of the minor victim, in the interest of justice."

2. The present petitioner is a victim of rape case registered vide FIR No.11202002211297 of 2021 dated 26.05.2021 with City "C" Division Police Station, Jamnagar for the offence punishable under Sections 376(2) (j), 376(2)(n), 114 and 506(2) of the Indian Penal Code and under Sections 4, 5(L), 5(q), 8 and 9(L) of the POCSO Act.

3. By way of the present petition, the petitioner has prayed for termination of pregnancy which is of 24 weeks as per the report given by the Doctor. Learned APP, after taking instructions, submitted that in this type of case the facility is available at G.G.Hospital, Jamnagar and if the victim approaches to the said hospital, she will be examined there accordingly.

4. In view of the aforesaid, the applicant shall go to G.G. Hospital, Jamnagar on 08.06.2021 at about 10:00 a.m. along with three persons which may include parents of the victim for medical examination. The senior expert Doctors at G.G.Hospital, Jamnagar are directed to examine the victim for termination of pregnancy of victim and about the risk factor, Moreover, Doctors shall mention the stage and medical position of the victim girl and shall clarify whether termination of pregnancy of victim girl could be performed or not with detailed reasons. The Medical Officer shall report to this Court about the above respect through learned APP on or before 10.06.2021. Looking to the current situation due to Covid 19 Pandemic, the applicant is at liberty to avail benefit

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

of this order for visiting GG Hospital, Jamnagar. The Medical Officer shall examine the victim and in turn shall intimate in detail about the condition and stage of pregnancy with the opinion regarding the termination of pregnancy of victim girl to the learned APP. The learned APP shall in turn apprise the Court about the same.

5. Learned APP is directed to intimate the concerned doctors in this regard along with this order. Learned advocate for the applicant is directed to send copy of this order to the concerned authorities including the doctors and the police authority. Stand over to 10.06.2021. Direct service permitted.

8. Pursuant to the aforesaid order dated 07.06.2021 passed by this Court in the present matter, learned APP has placed on record an opinion dated 09.06.2021 given by the penal Doctors of G.G.Hospital, Jamnagar. The said opinion reads as under:

"The following gynecologist doctors of Guru Gobind Singh Govt. Hospital have investigated the case:

1) Dr. Sunita Saini, Senior Resident, Obs & Gynae. Department

2) Dr. Priti Punatar, Additional Professor, Obs & Gynae. Department

3) Dr. Nalini I. Anand, Proff and Head of Dept., Obs & Gynae. Department

After history taking with clinical examination and ultrasound examination, victim (urviben dineshbhai gagubhai) rathod, age 17 years 7 months) is found to have 23 weeks 6 days of pregnancy (as per ultrasound report dated, 09.06.2021 done by Dr. Pratiksha Modi (DMRD). Medical termination of pregnancy at this juncture is permissible under MTP amendment Act, 2020. Secondly we are of opinion that she can undergo MTP with due risk of complications, few of them mentioned here are haemorrhage, retained product of conception, infection. If she requires surgical intervention like hysterectomy in case of failure of progression of labour she may suffer serious complications related to anaesthesia, uterine bleeding, infections. Rare complications includes DIC, amniotic fluid embolism. Time take for MTP increases with increasing gestational age which negatively impacts on victim's psychology. Uncontrolled haemorrhage may also require

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

hysterectomy, possibility of such complications increases with increasing weeks of pregnancy.

If MTP is considered then it should be performed without delay to avoid major complications and other adverse effects like negative impact on her mental, social, physical condition.

        Dr. Sunita Saini          Dr. Priti Punatar             Dr.N.I.Anand
        xx       xxx               xx                           xx

"According to Physician, her pulse­86/min, SPO2 99%, Respiratory and cardiovascular system are normal, ECG is normal, and advised for blood investigations. So patient is medically fit for procedure."

Dr.Hasmukh Asari Senior Resident Medicine Dept GGH, Jamnagar

"According to Anesthetist, patient is having moderate anemia. This patient will be anesthetized under ASA grade 3R for risk of anaesthesia for surgery.

Dr. Yukuta Raj Tutor Anesthesia Department GGH, Jamnagar.

"According to Psychiatrist, IQ assessment to be done by clinical psychologist as she is having clinically borderline to mild intellectual disability."

Dr. Hitarth Raja Senior Resident Psychiatric Dept. GGH, Jamnagar."

9. On the basis of the aforesaid opinion, learned APP submits that this Court may pass appropriate order in the interest of the petitioner - victim.

10. I have considered the submissions canvassed by learned advocate Mr. Patadiya appearing for the petitioner and learned APP Mr. Devnani for the respondent - State. I have also considered the documents produced on record including the opinion

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

dated 09.06.2021 given by the panel doctors of G.G.Hospital, Jamnagar.

11. Section 3 of the MTP Act, 2021 reads as under,

"3. When pregnancies may be terminated by registered medical practitioners.­ (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub­section (4), a pregnancy may be terminated by a registered medical practitioner,­

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that­

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.­Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.­Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub­section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment.

(4) (a) ...

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."

12. Thus from the above provision, it is clear that as per Section 3 of the MTP Act, 2021, where the length of pregnancy does not exceed 12 weeks, the

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

registered Medical Practitioner and where such length of pregnancy exceed 12 weeks but does not exceed 20 weeks, two Medical Practitioners can terminate the pregnancy. But they have to form an opinion that the continuation of pregnancy would invoke a risk to the life of the pregnant woman or of grave injury to her physical life of the pregnant woman or of grave injury to her physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Thus on perusal of Section 3 of the MPT Act, 2021, it is clear that that section allows abortion only if specific conditions are met with. Thus, from the opinion given by the penal doctors of G. G. Hospital, Jamnagar after medical examination of the victim girl, it is revealed that the concerned doctors are of the opinion that the victim can undergo MTP with due risk of complications, few of them mentioned are haemorrhage, retained product of conception and infection. It is also stated that if MTP is considered then it should be performed without delay to avoid major complications and other adverse effects like negative impact on her mental, social, physical condition.

13. Further, in this case, the petitioner is pregnant because of forcible rape by the accused. As contended by learned advocate for the petitioner, petitioner as well as her father have given consent for termination of pregnancy. It is also contended

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

that because of continuation of pregnancy, it would cause or constitute a grave injury to the mental health of the minor - victim coupled with the fact that bearing and rearing of child in the womb would create a great mental agony to her for her entire life and invite many other socio­economical problems. This can be said to be a grave injury to the mental health of the pregnant woman.

14. I have also considered the judgment upon which reliance has been placed by learned advocate for the petition in case of Janak Ramsang Kanzariya (supra). In that case aslo, the Court has granted permission for termination of pregnancy of 12 weeks. I have also considered the judgment of Hon'ble Supreme Court in case of Sarmistha Chakraborty Vs. Union of India reported in (2018) 13 SCC 339, where also the Hon'ble Supreme Court has granted permission to terminate the pregnancy of 25 weeks.

15. Considering the contents of the petition, provision of the applicable law, ratio laid down by the Hon'ble Supreme Court in above referred to cases, right of privacy of the petitioner, medical reports, and bearing in mind the best interest principle, as discussed herein above, I am of the view that the present petition deserves to be allowed as prayed for only with a view to save and protect the life of the petitioner - victim.

16. Therefore, the present petition stands allowed.

R/SCR.A/5201/2021 ORDER DATED: 11/06/2021

The concerned Doctors shall terminate the pregnancy with due risk after ANC profile report. The Medical Superintend, G.G Hospital, Jamnagar shall hand over, in scientific manner, the tissues drawn from the foetus for DNA identification to the investigating officer of the crime registered by the petitioner against the accused at Jamnagar City 'C' Division Police Station for onward transmission of the same to the concerned Forensic Science Laboratory. Registry to provide copy of this order to learned APP for onward communication and to the learned advocate for the petitioner, to the concerned investigating officer and G. G. Hospital, Jamnagar for follow up action.

Rule is made absolute to the aforesaid extent. Direct service is permitted.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI