Gujarat High Court
Xyz vs State Of Gujarat on 8 December, 2023
NEUTRAL CITATION
R/SCR.A/15913/2023 ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 15913 of 2023
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XYZ
Versus
STATE OF GUJARAT
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Appearance:
MR CHINTAN K GANDHI(8600) for the Applicant(s) No. 1
MR KULDIP P SOLANKI(9449) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/12/2023
ORAL ORDER
[1.0] The mother of the victim has approached this Court seeking
following relief:-
"Your Lordships may be pleased to issue a writ in nature of
mandamus and permit the daughter of the petitioner to
terminate her ongoing pregnancy [currently 6 plus weeks]
through registered medical practitioners at any approved
private or government hospital / center or Hospital preferably
at District Surat with a further direction to preserve the DNA
of the fetus and submit the report to the Investigating Officer
in the interest of justice;"
[2.0] Since victim of sexual abuse is a minor, her identity has not
been disclosed in this order and she has been referred to as the
'minor' or the 'victim' in the entire order. Registry is directed to
anonymize the name of the minor / victim in the judgment and all
orders that may be passed as well as in the records which are
publicly available.
[3.0] The facts taken out from the petition, are as under:-
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R/SCR.A/15913/2023 ORDER DATED: 08/12/2023
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[3.1] That under the greed of marrying the victim, on 23.10.2023,
the accused had taken the victim from the parenthood of her
parents and has committed the crime. That, on 24.10.2023, father
of the victim filed the FIR being CR No.11216008230550 of 2023
came to be lodged before Gandhinagar Sector-7 Police Station,
District Gandhinagar for the offence punishable under Sections
363, 366 and 376(2)(N) of the Indian Penal Code, 1860 and also
under Sections 4 and 6 of the Protection of Children from Sexual
Offences Act, 2012. That, the petitioner herein has stated in the
FIR that the complainant i.e. the father of the victim has stated
that the victim is aged 17 years and 2 months as on the date of
FIR having date of birth 30.07.2006, who is pursuing her B.A.
B.Ed. In IITE, Gandhinagar and her sibling is aged 12 years
studying in 7th Std. That, in the FIR it has further mentioned that
on 23.10.2023, the victim was taken away by the accused from
the parenthood of the petitioner and therefore, the FIR came to
be filed for the offences punishable under Sections 363 and 366
of the IPC but subsequently during investigation it revealed that
accused has committed serious offence of rape on the victim and
the victim being minor, the concerned Investigating Officer had
filed report for addition of section 376(2)(N) of the Indian Penal
Code, 1860 and also under Sections 4 and 6 of the Protection of
Children from Sexual Offences Act, 2012, which were ordered to
be kept with the FIR.
[4.0] On 07.12.2023, this court has passed following order:-
"Notice returnable on 9.10.2023. Learned APP waives
service of notice on behalf of the respondent - State.
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Meanwhile, let the victim minor be examined by the
empaneled Doctors at Civil Hospital, Surat, consisting of
Medical Superintendent, Senior Female Gynecologist and
Psychologist. The victim should be admitted immediately
and medical examination shall be carried out to let this
Court know as to whether termination of pregnancy is
medically feasible considering the fact that she is allegedly
victim of rape and her guardian inclines to terminate her
pregnancy. Doctors concerned shall follow settled
guidelines to know her mental and psychological
preparedness. The investigating officer is directed to make
all necessary arrangement and facilitate the medical
examination of the victim and submit a report before the
Court tomorrow.
Direct service is permitted today. "
[5.0] Learned advocate Mr. Chintan Gandhi for the petitioner,
after reiterating the fact of the case would submit that the minor
is the victim of sexual abuse, she is the victim of alleged offence
of rape registered with Gandhinagar Sector-7 Police Station. It is
further submitted that the minor has developed pregnancy of six
plus weeks as on the date of the application. It is painfully
submitted that she was sexually abused by the accused. It is
further submitted that because of the sexual abuse, the minor
has become pregnant and continuance of pregnancy would
defame her in the society. It is also submitted that the minor
would not be in a position to maintain the child as her mental and
physical conditions are too feeble and weak and she is not fit
either physically or mentally due to the incident in question. She
is in trauma being result of the incident. It is also stated that
considering the immature age of the minor, it is neither possible
nor permissible to nurture and maintain the child and also
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considering that such aspect will tarnish the image and
reputation in the society, it is urged to permit to terminate her
pregnancy in accordance with law.
[6.0] The mother of the victim present in the Court stated that it
would be in the best interest of the victim to undergo
termination of the pregnancy.
[7.0] Section 3 of the Medical Termination of Pregnancy Act,
1971 (in short "the Act") reads as under:-
"SECTION 3: When pregnancies may be terminated by registered
medical practitioners
(1) Notwithstanding anything contained in the Indian Penal Code, 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 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
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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 of the pregnant woman's actual or
reasonably foreseeable environment.
(a) No pregnancy of a woman, who has not attained the age of
eighteen years, or, who, having attained the age of eighteen 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."
[8.0] Before proceeding further to decision on issue, let refer
opinion of the medical experts, which reads as under:-
"As victim's age is 17 years (unmarried) and she is having 7
weeks pregnancy, continuation of pregnancy may cause grave
risk to physical and mental health of victim. So, termination of
pregnancy is medically feasible."
[9.0] Explanation to the statutory provision u/s 3(2) of the Act
spells that 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.
[10.0] In the case of X vs. Union of India reported in 2023(0)
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AIJEL-SC 72615, it has been observed in paragraph 14 as under:
"14. Where the length of the pregnancy exceeds twenty
weeks but does not exceed twenty-four weeks, two RMPs
must be of the opinion discussed in the preceding
paragraph.11 The categories of women where a pregnancy
beyond 20 weeks and up to 24 weeks may be terminated
are permitted to be prescribed by rules made by the
delegate of the legislature. Rule 3B of the MTP Rules (as
amended in 2021) provides grounds for the termination of a
pregnancy up to twenty-four weeks. The termination may
be allowed in the following cases or for the following
persons:
a. Survivors of sexual assault or rape or incest;
b. Minors;
c. Change of marital status during the ongoing
pregnancy (widowhood and divorce);
d. Women with physical disabilities with a major
disability in terms of the criteria laid down under the
Rights of Persons with Disabilities Act, 2016;
e. Mentally ill women including mental retardation;
f. Foetal malformation that has a substantial risk of
being incompatible with life or where in the event of
birth, the child may suffer from physical or mental
abnormalities and be seriously handicapped; and
g. Women with pregnancy in humanitarian settings or
disaster or emergency situations as may be declared
by the Government."
In the case of X v. Principal Secretary, Department of
Health and Family Welfare reported in 2022 LiveLaw (SC) 809,
the Hon'ble Supreme Court held that the benefits of Rule 3B(c)
extend equally to both single and married women and that the
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benefits of Rule 3B extend to all women who undergo a change
in their material circumstances.
[11.0] In the facts and circumstances of the case on hand,
present case falls under the purview of Section 3(B) of the MTP
Rules, 2021 and this court finds that the right of bodily integrity
calls for a permission to allow her to terminate her pregnancy.
The opinion of the Doctors clearly warrant the inference that the
continuance of the pregnancy involves the risk of a possible
grave injury to her mental health as required by Section 3(2)(i) of
the Act. Section 5 of the Act permits termination of pregnancy
beyond 20 weeks. The courts have expansively interpreting
section 5 of the Act, to permit termination of pregnancy beyond
20 weeks, in circumstances where it is considered imperative to
save life of the victim. Rule 3(b) of Medical Termination
Pregnancy Rules, 2023 may also be pressed into service. One
should not forget that the victim is minor. The Medical Board has
opined that the victim is mentally and physically fit to undergo
termination of the pregnancy and it will be safe to perform the
termination. In these circumstances, it would be poignant to
continue with the pregnancy for the minor, which is involuntary
in nature. The unwillingness of parents and minor to continue
the pregnancy is explicit and expected trauma both physical and
mental shall be increased if such pregnancy is allowed to
continue and may cause major risk to the body of the minor. In
fact, it is her right to terminate the unwanted pregnancy.
Therefore, it would be just and proper to permit termination of
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the pregnancy under the provisions of the Act.
[12.0] At this stage, the Court has considered the decision
wherein 'the best interest' of the victim girl and considering her
trauma, mental agony and possibility of social ostracism, the
Court is of opinion that when the medical opinion given by the
Panel of Doctors is taken into consideration, let termination of
pregnancy be carried out at the earliest with medical facilities
available to the victim girl and on ensuring proper care in pre-
termination and post termination period.
[13.0] For the foregoing reasons, this petition is allowed in
terms of permitting termination of the pregnancy of the minor to
be carried out by the concerned Civil Hospital at the earliest with
medical facilities available to the victim girl and on ensuring
proper care in pre-termination and post-termination period since
present victim is having 7 weeks pregnancy as of now. The
Doctors performing termination procedure shall take necessary
tissue from the fetus for DNA identification in scientific manner
and shall hand it over to the Investigating Officer concerned for
onward transmission of the same to the concerned FSL for
analysis. If post termination of pregnancy, the victim requires to
take treatment, the concerned Civil Hospital is directed to
provide all necessary treatment and facility.
[14.0] With above observations and directions, present
petition stands disposed of. Direct service TODAY is permitted.
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[15.0] Copy of this order also be provided to learned APP for
onward transmission to the concerned Civil Hospital and the
concerned Investigating Officer for taking necessary action.
(HASMUKH D. SUTHAR, J.)
Ajay
