Xyz vs State Of Gujarat
2023 Latest Caselaw 7004 Guj

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    R/SCR.A/12440/2023                                 JUDGMENT DATED: 22/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 12440 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                     NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                              NO

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. NISARG D SHAH(7299) for the Applicant(s) No. 1
MS POOJA D SHAH(13905) 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 : 22/09/2023
                                 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 for the following reliefs;

NEUTRAL CITATION

R/SCR.A/12440/2023 JUDGMENT DATED: 22/09/2023

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"(A) Your Lordships be pleased to issue a writ, order or direction directing the Respondent to grant permission to the petitioner- minor rape victim to terminate the pregnancy as the pregnancy is of 26 weeks at the earliest, as the continuance of pregnancy would cause grave injury to the petitioner- victim, in the interest of justice;

(B) Pending the admission and final hearing of this petition, this Hon'ble Court may 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 and final hearing of this petition, Your Lordships be pleased to grant permission to the petitioner- minor rape victim to terminate the pregnancy as the pregnancy is of 26 weeks at the earliest, as the continuance of pregnancy would cause grave injury to the petitioner- victim in the interest of justice;

(D) Any other and further relief/s which may be deemed fit by this Hon'ble Court be granted."

2. Pursuant to the order dated 18.09.2023 passed by this Court, today, learned APP Mr.H. K. Patel produced medical report of the victim girl dated 20.09.2023 prepared by the panel of Doctors of Civil Hospital, Ahmedabad. The same is taken on record. For ready reference, the said report is reproduced hereunder:

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R/SCR.A/12440/2023 JUDGMENT DATED: 22/09/2023

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"Patient was evaluated by routine blood investigation, USG examination and a psychiatric opinion was also taken. On the basis of the above assessment the panel is of the opinion that:-

1) The victim XYZ is having pregnancy of 26-28 weeks by USG examination. Under the amended MTP Act, termination of pregnancy is possible up to 24 weeks of gestation. Beyond 24 weeks, in a victim of sexual assault, a court order would be required to terminate the pregnancy.

2) The blood investigations are within normal limit and psychiatric opinion also is not suggestive of any morbidity or risk thereof.

3) Termination of pregnancy at 26-28 weeks of gestation can be done after a court order with risk inherent to termination at this gestational age. The risks include but are not restricted to need for operative intervention subsequent to the failure of termination or as a consequence of complication of termination by medical method; bleeding which may require blood transfusion, infection etc.

4) The foetus delivered as a consequence of this termination would be pretem and may not survive the termination procedure. In the occurrence of survival of the baby, it is very likely to suffer from the consequence of iatrogenic preterm delivery (risks including but not restricted to respiratory problems, neurological impairment etc.)"

3. As per the opinion given by the panel of Doctors in the form of the report dated 20.09.2023, the victim girl is carrying pregnancy of 26-28 weeks as on 20.09.2023 and no significant systemic abnormality has been detected. The victim also does not show signs of any associated pregnancy complications.

4. At this juncture, a reference to the judgment rendered by the Apex Court in case of X v. Principal

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R/SCR.A/12440/2023 JUDGMENT DATED: 22/09/2023

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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. No.33790 of 2023 dated 21.08.2023, by relying upon the judgment rendered in X v. Principal Secretary,

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R/SCR.A/12440/2023 JUDGMENT DATED: 22/09/2023

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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, Civil Hospital, Ahmedabad 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.2-Police Inspector, Nikol Police Station, Ahmedabad is directed to take necessary steps, on urgent basis, so that the

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R/SCR.A/12440/2023 JUDGMENT DATED: 22/09/2023

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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 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.

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(SAMIR J. DAVE,J) MEHUL B. TUVAR