Gujarat High Court
Abc vs State Of Gujarat on 25 August, 2023
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/10821/2023 ORDER DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10821 of 2023
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ABC
Versus
STATE OF GUJARAT
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Appearance:
MR AMIT S SHUKLA(13499) for the Applicant(s) No. 1
NIMIT Y SHUKLA(8338) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 25/08/2023
ORAL ORDER
RULE. Learned APP waives service of notice of rule on
behalf of the respondents.
1. By way of this petition, the petitioner has prayed for the
following reliefs;
"A. This Hon'ble Court be pleased to admit and allow
the present petition.
B. This Hon'ble Court may be pleased to issue a writ
of mandamus or a writ in nature of mandamus or any
other appropriate writ, order(s) or direction(s) directing
the respondent No.3 authority to terminate the pregnancy
of the petitioner/victim girl, at the earliest, as the
continuation of pregnancy. would cause grave injury to
the petitioner /victim as required under the provisions of
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R/SCR.A/10821/2023 ORDER DATED: 25/08/2023
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the Medical Termination of Pregnancy Act, 1971, in the
larger interest of justice;
C. Pending the admission and final disposal of this
petition, this Hon'ble Court may be pleased to direct the
respondent no.3 authority to conduct medical termination
of pregnancy of the petitioner/victim with two qualified
surgeons including Gynecologist and Obstetrician and in
presence of qualified medical practitioner with proper
care and precaution, so as to avoid any likelihood of any
type to harm to the petitioner/victim girl, after necessary
medical check-up, as required under the provisions of the
Medical Termination of Pregnancy Act, 1971 in the larger
interest of justice.
Ca. This Hon'ble Court may be please to issue a writ of
Mandamus or a i writ in nature of mandamus or any
other appropriate writ, order(s) or direction(s) directing
the respondent no.2 & 3 to preserve the tissues from the
foetus in order to conduct DNA test Report, to use is as
piece of evidence in the ensuing trial prosecuted by the
prosecution in the interest of justice."
2. Pursuant to the order dated 22.08.2023 passed by this
Court, learned APP Mr. Patel produced medical reports of the
victim girl along with letter dated 24.08.2023 of the Chief
District Health Officer & Civil Surgeon, Mahatma Gandhi
Smarak General Hospital, Surendranagar. The same are taken
on record. As per the medical opinion given in the Report of
the Medical Board for Pregnancy Termination Beyond 24 weeks
dated 23.08.2023, the victim girl is carrying pregnancy of 26
weeks as on 23.08.2023. It is also opined that the procedure of
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R/SCR.A/10821/2023 ORDER DATED: 25/08/2023
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termination of pregnancy may be undertaken where the facility
of Intensive Care Unit is available on full-time basis.
3. The Apex Court in the judgment rendered in the case of
X v. Principal Secretary, Health and Family Welfare
Department, Govt. of NCT of Delhi and Another reported in
AIR 2022 SC 4917 observed in paragraphs-99 & 116 as under;
"99. The right to reproductive autonomy is closely linked
with the right to bodily autonomy. As the term itself
suggests, bodily 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
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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.
4. Even in a recent decision rendered by the Apex Court in
Criminal Appeal No.___ / 2023 arising out of SLP (Cri.) Dy.
No.33790 of 2023 decided on 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 case (supra), the Apex Court has directed medical
termination of pregnancy of a victim who was having
pregnancy of 25 weeks
5. Having heard learned advocate for the applicant-victim
and considering the medical reports produced on record as also
the provisions of the Medical Termination of Pregnancy Act, it
would be just, legal and appropriate to order medical
termination of pregnancy of the victim herein.
6. It is stated by learned advocate for the applicant-victim
that the victim is presently stationed at Ahmedabad and that it
would be convenient for her to undergo the procedure of
medical termination of pregnancy at any Government Hospital
in Ahmedabad. Since the Doctors have opined that the
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procedure of termination of pregnancy of the victim may be
undertaken at any Hospital having ICU facilities on full-time
basis, with the consultation of learned advocates on both the
sides, it was agreed that the procedure of medical termination
of pregnancy of the victim could be undertaken at Sola Civil
Hospital, Sola, Ahmedabad.
7. In the result, the petition is allowed. The respondents
herein and the Police Inspector, Sola High Court Police Station
are directed to undertake necessary steps on urgent basis so
that the medical procedure of termination of pregnancy of the
victim girl could be undertaken and concluded on or before
28.08.2023. It is expected that the authorities concerned would
take due care and caution so that the procedure of medical
termination of pregnancy of the victim girl could be
undertaken smoothly keeping in mind the mental and physical
health of the patient. At this stage, learned advocate for the
victim sought direction in respect of the relief sought in
prayer-clause [Ca] seeking preservation of the subsequent DNA
Test Report by drawing tissues from the foetus for the purpose
of using it as a piece of evidence in the ensuring trial. The
said relief [Ca] is hereby granted and the Doctors concerned
are directed to do the needful in this regard. With the above
directions, the petition stands disposed of. Rule is made
absolute. Direct service TODAY.
NEUTRAL CITATION
R/SCR.A/10821/2023 ORDER DATED: 25/08/2023
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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)
PRAVIN KARUNAN
