Gujarat High Court
Xyz vs State Of Gujarat on 8 September, 2023
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/11554/2023 JUDGMENT DATED: 08/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11554 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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XYZ
Versus
STATE OF GUJARAT
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Appearance:
MR. BHARGAV K MEHTA(7094) for the Applicant(s) No. 1
MR AMIT N CHAUDHARY(5599) for the Respondent(s) No. 6
MR DEVENDRA PATEL(13624) for the Respondent(s) No. 6
NOTICE NOT RECD BACK for the Respondent(s) No. 2,3,4,5
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 08/09/2023
ORAL JUDGMENT
RULE. Learned APP waives service of notice of rule
on behalf of the respondents.
1. By way of this petition, the petitioner has prayed
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for the following reliefs;
"(A) Your Lordships be pleased to grant permission to the
petitioner- minor victim to terminate the pregnancy as the
pregnancy is of 16 weeks to 17 weeks at the earliest, as the
continuance of pregnancy would cause grave injury to the
petitioner- victim, in the interest of justice.
(B) Pending admission, hearing and final disposal of this
petition, Your Lordships be pleased to direct the respondents to
undertake necessary medical tests of petitioner- victim by the
qualified surgeon/s including Gynecologist, Obstetrician, in
presence of a qualified physician with due care and precaution, so
as to avoid any likelihood of untoward harm to the physical or
mental health of petitioner, and to submit report thereof to this
Hon'ble Court with immediate effect or at the earliest as deemed fit
and proper to the Hon'ble Court for its subjective satisfaction.
(C) Pending admission, hearing and final disposal of this
petition, Your Lordships be pleased to grant permission to the
petitioner- minor victim to terminate the pregnancy as the
continuance of pregnancy would cause grave injury to the
petitioner- victim as the pregnancy is of 16 weeks to 17 weeks
presently in the interest of justice.
(D) The Hon'ble Court be pleased to grant such other and further
orders, as this Hon'ble Court may deem fit and proper in the facts
and circumstances mentioned above."
2. Pursuant to the order dated 04.09.2023 passed by
this Court, today, learned APP Mr.Bhargav Pandya
produced medical report of the victim girl dated
06.09.2023 prepared by the panel of Doctors of GEMRS
Medical College attached to General Hospital,
Gandhinagar. The same is taken on record. For ready
reference, the said report is reproduced hereunder:
"1. After reviewing history, lab reports, physical and radiological
examination allied fitness done by gynecology, paediatrics,
psychiatric and anesthesia department.
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2.Gynecological examination, laboratory investigation and
radiological examination (Antenatal USG) was carried out on
05.09.2023. Psychiatric reference, paediatrician reference,
anesthesiologist reference was done on date: 06.09.2023.
3. As per sonography done on 05.09.2023, victim is having 19 weeks
pregnancy.
4. After opinion & fitness of allied medical specialties, we above
panel doctors are of the opinion that pregnancy be terminated with
usual risk associated with such condition keeping in mind age of
patient and gestational age."
3. As per the opinion given by the panel of Doctors
in the form of the report dated 06.09.2023, the victim
girl is carrying pregnancy of 19 weeks as on 05.09.2023
and no significant systemic abnormality has been
detected. The victim also does not show signs of any
associated pregnancy complications.
4. Learned Advocate Mr.Amit Chaudhary appearing for
respondent no.6-original accused submitted that the
original accused is ready to marry the victim and to
accept all responsibilities of the victim as also of
the child to be born. An affidavit to that effect has
been filed and produced on record. He submitted that
the dispute between the parties relates to caste and
that the victim has never agreed for her medical
termination of pregnancy and that the present petition
has been filed only on account of the pressure of her
parents. He accordingly prayed to reject the petition.
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5. Considering the statement of the victim recorded
under section 164 of Cr.P.C. as well as before the
Police and medical report of the victim, this Court is
of the considered opinion that victim girl is hereby
permitted to terminate her pregnancy.
6. 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
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reproductive healthcare or emotional and physical well- being also
injures the dignity of women."
7. In a recent decision rendered by the Apex Court in
Criminal Appeal arising out of S.L.P. (Cri.) Dy.
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.
8. The respondent no.6 has filed an affidavit
objecting to the termination of pregnancy of victim,
this Court would give weightage to the wish and desire
of the victim, though she is residing with her parents.
There is not much significance to the objection raised
by the respondent no.6 in view of the fact that the
relationship between the respondent no.6 and the victim
as on today does not have any legal recognition and
victim is minor.
9. 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.
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10. The value that mother held in our society can also
be recognized from the following verse of 'Skanda
Purana':
नास्ति मातृसमा छाया नास्ति मातृसमा गतिः। मा ृसमा छाया नास्ति मातृसमा छाया नास्ति मातृसमा गतिः। मा ृसमा गति ः।
नास्ति मातृसमा छाया नास्ति मातृसमा गतिः। मा ृसमं त्राणं नास्ति मातृसमा प्रपा।। त्राणं त्राणं नास्ति मातृसमा प्रपा।। नास्ति मातृसमा छाया नास्ति मातृसमा गतिः। मा ृसमा प्रपा।।
(Skanda Purana: Chapter 6. 103-104)
अर्थाा - मा ा के समान कोई छाया नहीं समान कोई छाया नहीं छाया नहीं, कोई छाया नहीं आश्रय नहीं, कोई छाया नहीं सुरक्षा नहीं। मा ा के समान कोई छाया नहीं समान इस
वि$श्व में कोई जीवनदाता नहीं। में कोई जीवनदाता नहीं। कोई छाया नहीं जी$नदा ा नहीं।"
11. If the victim does not want to continue with her
pregnancy then this Court cannot compel her to continue
her pregnancy.
12. In the result, the application is allowed. The
respondent No.4 herein, Chief Medical Officer/ Medical
Superintendent, Civil Hospital, Gandhinagar 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 and in any
case, within a period of one week from today. The
respondent No.3-Police Inspector, Dehgam Police
Station, Gandhinagar is directed to take necessary
steps, on urgent basis, so that the procedure of
medical termination of pregnancy of the victim girl
could be undertaken and concluded within a period of
one week from today. It is expected that the
respondent-authorities concerned would take necessary
care, sensitivity and caution so that the procedure of
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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.
13. The respondents nos.2-4 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.
14. 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.
Sd/-
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
