Anjaliben Senjibhai Thakor ... vs State Of Gujarat
2022 Latest Caselaw 3991 Guj

     R/SCR.A/3376/2022                                     ORDER DATED: 05/04/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 3376 of 2022
==========================================================
     ANJALIBEN SENJIBHAI THAKOR (MINOR) THRO JINABEN SENJI
                            THAKOR
                             Versus
                      STATE OF GUJARAT
==========================================================
Appearance:
SUDHANSHU A JHA(8345) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR RONAK RAVAL, APP for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 05/04/2022
                                ORAL ORDER

1. Rule. Learned APP Mr.Ronak Raval waives service of notice of Rule for the respondent- State.

2. Heard learned advocate Mr.Jha for the petitioner and learned APP Mr.Ronak Raval for the respondent-State.

3. Learned advocate for the petitioner submitted that the FIR being C.R.No.I-111 of 2019 is registered with Palanpur (West) Police Station, District Banaskantha for the offence punishable under Sections 363 and 376(3) and 114 of the Indian Penal Code, 1860 (IPC) and Sections 4, 6, and 8 of POCSO Act on 27.09.2019. It is further submitted that the age of the petitioner victim - complainant is 17 years and 3 months.

4. It is submitted that the petitioner is a victim of rape case twice and her mental health

R/SCR.A/3376/2022 ORDER DATED: 05/04/2022

coupled with the fact 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 social economical problems and, hence, the petitioner has expressed her willingness to terminate her pregnancy. Petitioner is also willing to terminate her pregnancy.

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, (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., 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

R/SCR.A/3376/2022 ORDER DATED: 05/04/2022

granted for termination of pregnancy. It is, therefore, urged that this petition be allowed and relief as prayed for be granted.

7. Pursuant to the order dated 01.04.2022, learned APP has tendered a medical report of the victim girl. The Senior Expert Doctors of the concerned Palanpur Civil Hospital have opined that the pregnancy i.e. 15 weeks foetus of the victim girl can be terminated with proper medical procedure. The concerned officer is also present before this Court. The medical report along with opinions of the doctors are ordered to be taken on record.

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

9. I have considered the submissions canvassed by learned advocates for the respective parties. I have also considered the documents produced on record, including the opinions given by the Senior Expert Doctors of the concerned Palanpur Civil Hospital.

10. 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

R/SCR.A/3376/2022 ORDER DATED: 05/04/2022

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 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) ...

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

11. 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 exceed 12 weeks but does not exceed 20 weeks, two Medical Practitioners

R/SCR.A/3376/2022 ORDER DATED: 05/04/2022

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 a child was 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 section allows abortion only if specific conditions are met with. Thus, from the opinion given by the panel doctors of Palanpur Civil Hospital after medical examination of the victim girl, it is revealed that the concerned doctors are of the opinion that the victim can undergo MTP of 15 weeks foetus.

12. Further, in this case, the victim is pregnant because of forcible rape by the accused. It is also contended 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.

13. I have also considered the judgment upon which reliance has been placed by learned

R/SCR.A/3376/2022 ORDER DATED: 05/04/2022

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. I have also considered the judgment of Supreme Court in case of Sarmistha Chakraborty Vs. Union of India, (2018) 13 SCC 339, where also the Supreme Court has granted permission to terminate the pregnancy of 25 weeks.

14. Considering the contents of the petition, provision of the applicable law, ratio laid down by the Supreme Court in the above referred to cases, right of privacy of the petitioner, medical reports, and bearing in mind the best interest principle, as discussed hereinabove, 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 victim.

15. Therefore, the present petition stands allowed. The concerned Doctors shall terminate the pregnancy with due risk after ANC profile report. The In-charge Medical Officer & Medical Superintendent of the concerned Palanpur Civil Hospital 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 for onward transmission of the same to the concerned Forensic Science Laboratory. Registry to provide a copy of this order to the

R/SCR.A/3376/2022 ORDER DATED: 05/04/2022

learned APP for onward communication and to the learned advocate for the petitioner, to the concerned investigating officer and Palanpur Civil Hospital for follow up action.

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

Sd/-

(A. S. SUPEHIA, J) NVMEWADA