Gujarat High Court
Jasuben W/O Maheshbhai Jivabhai ... vs State Of Gujarat on 10 August, 2022
Bench: Niral R. Mehta
R/SCR.A/8176/2022 ORDER DATED: 10/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8176 of 2022
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JASUBEN W/O MAHESHBHAI JIVABHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR MIRENKUMAR K PRIYADARSHI(11023) for the Applicant(s) No. 1
MS RATNA VORA(2251) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3,4
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 10/08/2022
ORAL ORDER
[1] The daughter of the petitioner is a victim of rape and
thereby filed complaint against accused person being F.I.R.
No.11189003221129 of 2022 for the offences punishable
under Sections 376(2)(1) of the of the Indian Penal Code read
with Sections 3(1)(w)(i)m 3(2)(v) of the Atrocities Act
registered with "A" Division City Police Station, Morbi, on
8.7.2022
[2] On 3rd August, 2022, this Court passed following order:-
[1] Issue NOTICE to the respondents. Mr. Pranav
Trivedi, learned Additional Public Prosecutor appears
and waives service of notice for and on behalf of the
respondents - State. [2] Considering the fact and
keeping in mind the urgency of the matter, the following
R/SCR.A/8176/2022 ORDER DATED: 10/08/2022
interim order is required to be passed: A detailed
medical report needs to be called for before permission
of termination of pregnancy is acceded to. And
therefore, the Medical Superintendent, Civil Hospital,
Morbi is directed to examine the daughter of the
petitioner - victim by a panel of senior-most
Gynecologists of the Civil Hospital. The aforesaid team
of doctors shall examine the victim on 4th August 2022
i.e. tomorrow 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 daughter of the petitioner - victim,
if the child was born, or that the child would suffer from
such physical or mental abnormalities as to be seriously
handicapped. The Medical Superintendent, Civil
Hospital, Morbi shall admit the daughter of the
petitioner - victim tomorrow itself and shall only
discharge her after the Court's order. A copy of this
order shall be furnished to the learned advocates
appearing for the respective sides for follow up action.
Intimation of this order shall be sent to the Medical
Superintendent of Civil Hospital, Morbi forthwith by the
learned APP Mr. Pranav Trivedi, appearing for the
respondent-State. Let this matter appear on 8th August,
2022 with the report of the experts. Direct service
TODAY is permitted."
[3] As per the above order, a report dated 8.8.2022 is
prepared by the Dr.Dhaval Patel, Assistant Professor and
R/SCR.A/8176/2022 ORDER DATED: 10/08/2022
Dr.Miral G. Adroja, Obstetrics and Gyanecologist of General
Hospital, Morbi, which is taken on record. From the said
report, it is evident that the daughter of the petitioner - victim
is having 21 weeks pregnancy as on 6.8.2022. It also reveals
from the report that Psychiatrist (Dr.Deep Bhadja) reference
done. According to him as victim's intellectual level will be
difficult for her to take care of her baby. As victim is known
case of epilepsy since 5 years of age and patient is on
antiepileptic drug since last 18 yrs and mentally retarded
(50% disability as per certificate issued on 06/03/2022. There
may be substantial risk to physical and mental health of victim
and baby with continuation of pregnancy.
[4] Rule. Learned APP waives service of rule for and on
behalf of the respondent-State.
[5] Ms.Moxa Thakkar, learned APP has pointed out that the
medical advice is in favour of the victim.
[6] However, Ms.Ratna Vora, learned advocate for the
petitioner strongly urged, upon the instructions of her client
that the daughter of the petitioner is a victim and she may be
allowed to abort the child at her own risk, and she has placed
reliance upon the judgment dated 13 th August 2019 passed by
Hon'ble Bombay High Court in Writ Petition No.8772 of 2019.
[7] On the overall consideration of the matter on record, it
appears that since the petitioner being mother of the victim is
desirous of termination of pregnancy of her own daughter's
risk, the daughter of the petitioner - victim is permitted to
R/SCR.A/8176/2022 ORDER DATED: 10/08/2022
undergo medical termination of pregnancy at the General
Hospital, Morbi. Accordingly, the General Hospital, Morbi is
requested to arrange for the procedure of medical termination
of pregnancy of daughter of the petitioner at the earliest.
[8] Resultantly, it is directed that the best medical facility
be made available by ensuring proper care and supervision,
termination of pregnancy shall be carried out. The doctors
shall take necessary tissue from the fetus for DNA
identification by following scientific practice prescribed by the
Standard Medical Practice for DNA identification.
[8.1] It is, however, clarified that daughter of the petitioner
shall undergo the procedure of MTP at her own risk and it is
further clarified that doctors who have put their opinion on
the record, shall have the immunity in the event of occurrence
of any litigation arising out of the instant petition.
[9]. It is further requested the Superintendent, General
Hospital, Morbi to ensure the best medical treatment through
the seniormost Gynecologists of his confidence. Once
termination of the pregnancy proceedings is over, the
Superintendent, General Hospital, Morbi shall also depute
one seniormost Gynecologist to ensure that the periodical
treatment as and when required by the victim, be given
adequately.
[10] The concerned office of the District Legal Services
Authority is hereby directed to see that the victim shall get
the interim compensation at the earliest.
R/SCR.A/8176/2022 ORDER DATED: 10/08/2022
[11] The Superintendent, General Hospital, Morbi shall
discharge the victim after completion of the termination
proceedings after examining the victim and finding suitable to
do so. Till then, the victim shall be kept in the Hospital.
[12] The present petition is disposed of accordingly. Rule is
made absolute accordingly. There shall be order as to costs.
Direct service today is permitted.
(NIRAL R. MEHTA,J)
V.J. SATWARA
