Gujarat High Court
Khyati D/O Dharmendrabhai ... vs State Of Gujarat on 29 June, 2021
Bench: Vipul M. Pancholi
R/SCR.A/5891/2021 ORDER DATED: 29/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5891 of 2021
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KHYATI D/O DHARMENDRABHAI GANDABHAI VAGHELA MINOR
THROUGH SONALBEN @ SAGUNABEN W/O DHARMENDRABHAI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR HB CHAMPAVAT(6149) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR LB DABHI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 29/06/2021
ORAL ORDER
1. This petition was listed on Board on 25.06.2021,
on which date, this Court has heard the matter and
direction was issued to the concerned Medical Officer
and the matter was directed to be listed on Board on
today i.e. 29.06.2021. However, the same has not been
listed. Looking to the urgency involved in the
matter, a request was made by the learned advocates
appearing for the parties to take up the matter. This
Court, therefore, directed the Registry to list this
matter on Board today at 2:30 PM.
2. By way of the present petition under Article 14
and 226 of the Constitution of India as well as under
the provision of the Medical Termination of Pregnancy
(Amendment) Act, 2021 (hereinafter referred to "MTP
Act, 2021" for short), the petitioner has prayed for
following reliefs:
"(A) To allow this application.
(B) To issue a writ of mandamus or any other
writ, order or direction directing the
R/SCR.A/5891/2021 ORDER DATED: 29/06/2021
Resp. no.3 i.e. Medical Superintendent,
Civil Hospital, Rajkot to terminate the
pregnancy of the petitioner - Victim at
the earliest with a further direction to
preserve the DNA of the fetus and submit
the report to the Investigating officer
in the interest of justice;
(C) Pending admission, hearing and final
disposal of the petition, to allow the
petitioner to terminate her pregnancy by
the Resp. no.3 i.e. Medical
Superintendent, Civil Hospital, Rajkot in
the interest of justice;
(D) To pass any other and further orders as
may be deemed fit and proper."
2. Heard learned advocate, Mr.H.B. Champavat
appearing for the petitioner and learned APP Mr.L.B.
Dabhi appearing for the respondents.
3. Learned advocate for the petitioner submits the
accused named in the FIR produced at Annexure-B at
Page No.2 of the compilation, after luring, enticing
and intimidating, had developed physical relations
with the petitioner - victim girl, for which, the
mother of the victim has lodged aforesaid FIR. It is
submitted that since the victim was suffering from
Typhoid since last three months prior to the lodgment
of the FIR, the mother of the victim visited the
Doctor for the treatment of Typhoid and, thereafter,
the victim was having frequent stomach aches and
irregular menses. Therefore, the mother of the victim
visited a Gynecologist, who upon sonogrphay done,
inform her that victim was having 5 ½ (five and half
months) months' pregnancy and as on today, more than
23 weeks and 4 days. It is submitted that the victim
R/SCR.A/5891/2021 ORDER DATED: 29/06/2021
is a minor girl aged about 17 years and 4 months. It
is submitted that bearing and rearing of a child in
the womb would create a great mental agony to her for
her entire life and may invite other socio-economical
problems.
3.1 Learned advocate for the petitioner has placed
reliance upon the provision of MTP Act, 2021 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 caused 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.
3.2 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.,
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.
R/SCR.A/5891/2021 ORDER DATED: 29/06/2021
4. On the other hand, learned APP has taken through
the factual aspects of the case and also verified the
status of the victim girl. It is submitted that as
per the order dated 25.06.2021 passed by this Court,
the concerned Investigating Officer has taken the
victim girl to Medical Officer, Civil Hospital,
Rajkot for medical examination on 26.06.2021 and
after medical examination, the concerned Medical
Officer has submitted his opinion, which is submitted
before this Court. Copies of the said opinions are
taken on record. It is pointed out by learned APP
that the concerned Medical Officer of Civil Hospital,
Rajkot, after carrying out medical examination of the
victim girl, has given positive opinion about the
termination of pregnancy. It is, therefore, urged
that appropriate order be passed.
5. This Court has heard learned advocate, Mr.H.B.
Champavat appearing for the petitioner and learned
APP Mr. L.B. Dabhi appearing for the respondents. I
have also considered the documents produced on record
including the opinion given by the concerned Doctor.
6. 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.
R/SCR.A/5891/2021 ORDER DATED: 29/06/2021
(2) Subject to the provisions of sub-section
(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
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
sub-section (2), account may be taken to
the pregnant woman's actual or
reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not
attained the age of eighteen years, or,
who, having attained the age of eighteen
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years, is a[mentally ill person], shall
be terminated except with the consent in
writing of her guardian.
(b) Save as otherwise provided in clause (a),
no pregnancy shall be terminated except
with the consent of the pregnant woman."
7. The opinion given by the Medical Officer of
Civil Hospital, Rajkot, pursuant to the order passed
by this Court is that after medical examination of
the victim girl, at present, is having 23 weeks and 4
days' pregnancy and her pregnancy can be terminated
with usual risk.
8. 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
registered Medical Practitioner and where such length
of pregnancy exceeds 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 MTP Act, 2021, it is
clear that this provision allows abortion only if
specific conditions are met with. Therefore on
perusal of the opinion given by the Medical Officer
after medical examination of the victim girl, it is
R/SCR.A/5891/2021 ORDER DATED: 29/06/2021
clear that the Medical Officer has categorically
opined that the pregnancy can be terminated. Here in
the facts of the present case, pregnancy is of 23
weeks and 4 days, therefore, the Medical
Practitioner/s cannot on its own terminate the
pregnancy. If they terminate the pregnancy without
the order of the Court, the act of the doctor amounts
to an offence punishable under the Indian Penal Code
or for any other for time being in force. Further, in
this case, the petitioner is pregnant because of
forcible rape of incident by the accused. As per the
contents of the petition, it is submitted 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 socio-economical problems. This can be
said to be a grave injury to the mental health of the
pregnant woman.
9. This Court has 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 also, the Court has granted
permission for termination of pregnancy of 12 weeks.
This Court has 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
R/SCR.A/5891/2021 ORDER DATED: 29/06/2021
weeks.
10. Considering the contents of the petition,
provision of the applicable law, ratio laid down by
the Hon'ble Supreme Court in above referred cases,
right of privacy of the petitioner, medical reports,
and bearing in mind the best interest principle, as
discussed hereinabove, this Court is 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.
11. Therefore, the present petition stands allowed.
The concerned Doctors are permitted to terminate the
pregnancy with due risk after ANC profile report, as
requested by the petitioner. The Medical Superintend,
Civil Hospital, Rajkot, shall handover, in scientific
manner, the tissues drawn from the fetus for DNA
identification to the Investigating Officer of the
crime registered by the petitioner against the
accused at Aajidam Police Station, Rajkot City for
onward transmission of the same to the concerned
Forensic Science Laboratory. Registry to provide a
copy of this order to learned APP for onward
communication, to the learned advocate for the
petitioner, to the concerned Investigating Officer
and Civil Hospital, Rajkot for follow up action.
12. Rule is made absolute to the aforesaid extent.
Direct service today is permitted.
(VIPUL M. PANCHOLI, J)
piyush
