Gujarat High Court
Xyz vs State Of Gujarat on 3 October, 2023
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/12864/2023 ORDER DATED: 03/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 12864 of 2023
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XYZ
Versus
STATE OF GUJARAT
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Appearance:
MS DIPMALA S DESAI(6596) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
MR H. K. PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 03/10/2023
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) Your Lordship may be pleased to admit and allow this
petition;
(B) Your Lordships be pleased to issue appropriate writ, order
or direction, permitting the victim- petitioner to terminate
her on going pregnancy of 24 weeks 5 days as reported on
23.09.2023 at approved Government Hospital on such terms
and conditions as may be deemed fit by this Hon'ble Court,
in the interest of justice;
(C) Your Lordships may be pleased to quash and set aside
order dated 23.09.2023 passed in Criminal Misc.
Application No.3401 of 2023 by the Ld. Additional Sessions
Judge, Rajkot, while permitting the petitioner to terminate
her on going pregnancy of 24 weeks 5 days as reported on
NEUTRAL CITATION
R/SCR.A/12864/2023 ORDER DATED: 03/10/2023
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23.09.2023 at approved Government Hospital on such terms
and conditions as may be deemed.
(D) Your Lordships be pleased to direct the respondent no.3 i.e.
the in-charge Medical Officer of the General Hospital,
Rajkot, or any other Government Hospital to undertake
necessary medical tests of victim/ petitioner about physical
and medical fitness to undergo termination of pregnancy as
required under the Medical Termination of Pregnancy Act,
1971 and to submit the report thereof to this Hon'ble Court
with immediate effect for its subject satisfaction;
(E) Your Lordships be pleased to direct the respondent no.3 i.e.
the in-charge Medical Officer of the General Hospital,
Rajkot, or any other Government Hospital to undertake
necessary medical tests of victim/ petitioner about physical
and medical fitness to undergo termination of pregnancy as
required under the Medical Termination of Pregnancy Act,
1971 and to submit the report thereof to this Hon'ble Court
with immediate effect for its subject satisfaction, pending
the admission hearing and final disposal of this petition;
(F) YOUR Lordships be pleased to grant such other and further
reliefs, as may be deemed fit by this Hon'ble Court, in the
interest of justice;"
2. Pursuant to the order dated 27.09.2023 passed by
this Court, today, learned APP Mr.H.K.Patel produced
medical report of the victim girl dated 29.09.2023
prepared by the panel of Doctors of P.D.U. Hospital,
Rajkot. The same is taken on record.
3. As per the opinion given by the panel of Doctors
in the form of the report dated 29.09.2023, the
victim girl is carrying pregnancy of 25 weeks as on
28.09.2023 and no significant systemic abnormality
has been detected. The victim also does not show
signs of any associated pregnancy complications.
NEUTRAL CITATION
R/SCR.A/12864/2023 ORDER DATED: 03/10/2023
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4. At this juncture, a reference to the judgment
rendered by the Apex Court in case of X v. Principal
Secretary, Health and Family Welfare Department,
Govt. of NCT of Delhi and Another reported in AIR
2022 SC 4917 would be apposite. In paragraphs-99 &
116, it has been observed 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 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."
5. In a recent decision rendered by the Apex Court
in Criminal Appeal arising out of S.L.P. (Cri.) Dy.
NEUTRAL CITATION
R/SCR.A/12864/2023 ORDER DATED: 03/10/2023
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No.33790 of 2023 dated 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's case (supra), the Apex Court
ordered to conduct medical termination of pregnancy
of the victim.
6. In this backdrop, it would be beneficial to
refer to a recent decision of the Kerala High Court
in the case Aryamol Vs. Union of India and Ors.,
wherein in the facts and circumstances of the case,
the High Court has gone to the extent of saying that
the consent of the husband is not required in a case
where the wife desires to terminate her pregnancy
thereby giving respect to the desire of the woman and
significance to her dignity.
7. If the victim does not want to continue with her
pregnancy then this Court cannot compel her to
continue her pregnancy.
8. In the result, the application is allowed. The
respondent No.3 herein, Chief Medical Officer/
Medical Superintendent, P.D.U. Hospital, Rajkot is
directed to take necessary steps for undertaking the
procedure of medical termination of pregnancy of the
applicant-victim girl at the earliest possible time.
The respondent No.2-Police Inspector, Gandhigram
Police Station, Rajkot is directed to take necessary
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R/SCR.A/12864/2023 ORDER DATED: 03/10/2023
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steps, on urgent basis, so that the procedure of
medical termination of pregnancy of the victim girl
could be undertaken and concluded at the earliest. It
is expected that the respondent-authorities concerned
would take necessary care, sensitivity and caution so
that the procedure of medical termination of
pregnancy of the victim girl could be undertaken
smoothly keeping in mind the age as well as mental
and physical health of the victim girl.
9. The respondents nos.2-3 are directed to do the
needful to preserve the subsequent DNA Test Report by
drawing tissues from the foetus for the purpose of
using it as a piece of evidence in the ensuing trial.
10. With the above directions, the petition stands
disposed of. Rule is made absolute. Direct service
TODAY is permitted. 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)
MEHUL B. TUVAR
