Gujarat High Court
Ankitaben Halubhai Desai vs State Of Gujarat on 5 November, 2024
NEUTRAL CITATION
R/SCR.A/14840/2024 ORDER DATED: 05/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 14840 of 2024
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XYZ
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NITIRAJ N DESAI(12864) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
MR RONAK RAVAL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/11/2024
ORAL ORDER
1. The applicant has approached this Court seeking following
reliefs:
"(A) Your Lordships may be pleased to issue appropriate
writ or order or direction to the respondent authority to
terminate the pregnancy of the petitioner who is aged 27
years, at the earliest, as the same being in the best interest
of the victim, considering her physical health and incident of
rape causing grave injury to her mental health and further
be pleased to direct the respondent no.2 to hand over,
scientific manner, the tissues drawn from the fetus for DNA
identification to the Police Inspector, Sola High Court Police
Station, Ahmedabad for onward transmission of the same to
the concerned Forensic Science Laboratory, interest of justice;
(B) Pending admission hearing and final disposal of this
petition, Your Lordships may be pleased to direct the
respondents to conduct medical termination of pregnancy of
the minor victim with two qualified surgeons including
Gynecologist, Obstetrician and in presence of qualified
physician with due care and precaution after carrying out
necessary medical checkup, so as to avoid any likelihood of
untoward harm to the physical or mental health of the
minor victim, in the interest of justice or direct appropriate
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R/SCR.A/14840/2024 ORDER DATED: 05/11/2024
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medical officer to take appropriate medical test.
(C) To pass any other and further orders as may be deemed
fit and proper.
(D) To provide for the cost of this application."
2. Since the applicant is a victim of rape, her identity has not
been disclosed in the order and she has been referred to as 'the
applicant' in the entire order. Registry is also directed to anonymize
the name of the applicant in the judgment and all orders that may
be passed as well as in the records which are publicly available.
3. The facts leading to the filing of the present petition are as
under:
3.1 The applicant is a victim of rape pursuant to FIR being C.R.
No.11191045240622 of 2024 is registered with Sola-High Court
Police Station, Ahmedabad dated 28.10.2024 for commission of
alleged offences punishable under Sections 64(2)(m) and 127 (4) of
Bhartiya Nyaya Sanhita, 2023.
3.2 It is the case of the applicant that after registration of the
said FIR, the applicant was sent for medical examination on
20.10.2024 at Civil Hospital, Ahmedabad and as per the Hospital
report she was found to be 16 weeks and 02 days pregnant and,
therefore, the applicant requested this Court to allow her to
undergo with termination of pregnancy on the grounds mentioned
in the petition.
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R/SCR.A/14840/2024 ORDER DATED: 05/11/2024
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3.3 On 04.11.2022 this Court has passed the following order.
"1. Heard learned advocate Mr.Nitiraj N Desai for the
applicant and learned Additional Public Prosecutor Mr.Ronak
Raval for the respondent - State.
2. It is submitted by learned advocate for the applicant
that the applicant is 26 years of age and at the moment she
is found to be having 16 weeks and 02 days of pregnancy. It
is also submitted by learned advocate for the applicant that
cause of filing of the present petition for termination of
pregnancy is an untoward incident leading to filing of FIR
being No.11191045240622 of 2024 registered with Sola High
Court Police Station, Ahmedabad City for offences punishable
under Sections 64(2)(m) and 127(4) of Bharatiya Nyaya
Sanhita, 2023.
3. Learned advocate for the applicant states that applicant
is present before this Court. He makes a statement before this
Court that he has personally verified with the applicant and
she has given her consent for termination of pregnancy and
affidavit to that effect shall also be filed separately by
tomorrow before this Court.
4. Learned Additional Public Prosecutor Mr.Ronak Raval
interacted with the applicant in the court and has verified
that applicant herself wishes to get terminated her pregnancy.
5. Looking at the facts of the present case, issue Notice
making it returnable on 05.11.2024. Learned Additional Public
Prosecutor Mr.Raval waives service of notice on behalf of
respondent - State. Meanwhile, let the applicant be examined
by the Medical Expert Team at GMERS Civil Hospital, Sola,
Ahmedabad consisting of Medical Superintendent, Senior
Female Gynecologist and Physiologist. The applicant shall be
admitted in the hospital immediately and her medical
examination be carried out immediately. The report thereof
be submitted before this Court by tomorrow in writing with
an opinion of the concerned experts regarding stage of her
pregnancy and her mental, physical and emotional condition.
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The report shall also include opinion regarding the risk factor
to the life of the applicant if termination of pregnancy is
carried out and the mental physical condition of the applicant
if child is born in case if termination of pregnancy is not
possible.
6. The Investigating Officer is directed to make all
necessary arrangements and facilitate the applicant for her
medical examination and shall submit his detailed report
before this Court by tomorrow.
7. Copy of this order be supplied to the learned Additional
Public Prosecutor for onward communication and compliance.
Direct service today is permitted."
3.4 Learned advocate for the applicant submitted that the
applicant came into contact with the accused person of the above-
mentioned FIR and on 28.10.2024, the applicant, who is aged to be
27 years, was found to be pregnant of 16 weeks and 02 days and
carrying burden of unwanted pregnancy which adversely affects her
mental as well as physical health.
3.5 It is the case of the applicant that applicant is a victim of
rape and her mental health coupled with the fact that bearing and
rearing of the child would create great hardship to her mental
agony for entire life and, therefore, the applicant expresses her
willingness to terminate her pregnancy.
4.1 Before proceeding further to decision on issue, the opinion of
the medical expert was called for and the report dated 04.11.2024
reads as under:
➢ As per MTP act amendment 25 th March, 2021, termination of
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pregnancy can be done upto 24 weeks.
➢ Patient's LMP (Last Menstrual Period) is on 12/7/2024 and
according to ultra-sonography done on 04/11/2024 in the
department of Radiology, G.M.E.R.S. Sola patient is having single
live intrauterine fetus of 17 weeks 4 days.
➢ Also allied fitness of medicine, psychiatry and anaesthesia
departments has been obtained and investigations have been done
which are within normal limits.
➢ Medical termination (Mifepristone + Misoprostol) emplyed for
termination of pregnancy at this maturity of fetus may result in
failure, in which case cesarean delivery (hysterotomy) will be
required, which is associated with its own morbidity and mortality
and anaesthetic risks.
➢ Informed consent of the patient will be required for
performing MTP after explaining the entire likely outcome.
➢ Also, appropriated guidelines need to be provided and
provisions made for testing of abortus for paternity.
4.2 In view of the fact that Medical Board has stated that it
would be safe to perform termination. It is in the interest of the
applicant not to continue with the pregnancy, her unwillingness to
continue with the pregnancy is explicit and expected trauma both
physical and mental shall be increased if such pregnancy is allowed
to continue which may cause major risk to terminate the unwanted
pregnancy. In fact, it is her right to terminate the unwanted
pregnancy. Therefore, it would be just and proper to permit
termination of the pregnancy under the provisions of the Act.
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4.3 At this stage, the Court has considered the decision wherein
'the best interest' of the applicant 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.
5. Section 3 of the Medical Termination of Pregnancy Act, 1971
(herein after referred to as 'the MTP Act', for short) reads as under:
"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
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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 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." _
From the explanation, more particularly Explanation-1, it can
be spelled out 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.
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6.1 In the present case, the applicant is 27 years old. In the case
of XYZ vs. The State of Gujarat and others reported in 2023
LiveLaw (SC) 680, the Hon'ble Supreme Court, more particularly in
paras:17 and 18 has observed as under:
"17. More recently, in the case of X vs. The Principal
Secretary, Health and Family Welfare Department,
Government of NCT of Delhi and Ors., AIR 2022 SC 4917;
this Court, in another three-judge Bench lead by
Dr.D.Y.Chandrachud, J. ( as the learned Chief Justice then
was) observed that a woman can become pregnant by choice
irrespective of her marital status. In case the pregnancy is
warranted, it is equally shared by both the partners.
However, in case of an unwanted or incidental pregnancy,
the burden invariably falls on the pregnant woman affecting
her mental and physical health. Article 21 of the
Constitution recognizes and protects the right of a woman to
undergo termination of pregnancy if her mental or physical
health is at stake. Importantly, it is the woman alone who
has the right over her body and is the ultimate decision-
maker on the question of whether she wants to undergo an
abortion.
18. In the context of abortion, the right of 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."
Thus, the Hon'ble Supreme Court has observed that a woman
alone has a right over her body and is the ultimate decision-maker
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on the question of whether she wants to undergo an abortion and
in the present case also the present applicant has filed an affidavit
dated 05.11.2024, which is taken on record, wherein she has
reiterated that she is victim of rape and her mental health coupled
with bearing and rearing of the child would cause great mental
agony to her for entire life and, therefore, she has expressed
willingness to terminate the pregnancy and accordingly she has
given consent to allow the present application.
6.2 In the case of X vs. Principal Secretary, Health and Family
Welfare Department reported in (2023) 9 SCC 433, the Hon'ble
Supreme Court after observing in para: 68 has held that 'mental
health' has a wide meaning much more than absence of mental
illness and has also held that a woman has right to decide freely all
matters related to sexual and reproductive health.
7. The case on hand falls within the purview of 'the MTP Act'
and this Court finds that right of bodily integrity calls for a
permission to allow her to terminate her pregnancy. The opinion of
the Doctors, who have examined the applicant, clearly indicates
that the applicant is found to be fit for termination of pregnancy
with due risk. Hence, it can be opined that considering the report
dated 04.11.2024 of the Committee of the Doctors, the present
applicant is found to be fit for termination of pregnancy and the
the termination of her pregnancy can be performed.
8. In view of above, issue Rule returnable forthwith. Learned
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R/SCR.A/14840/2024 ORDER DATED: 05/11/2024
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Additional Public Prosecutor Mr.Ronak Raval waives service of
notice of rule on behalf of the respondent State.
9. Considering the facts of the case, this matter is taken up for
final consideration today.
10. Learned advocates appearing for both the sides have
submitted that when the Doctors have opined that termination of
pregnancy can be done, in that case, the applicant who is rape
victim, should not be let carrying unwanted pregnancy.
11.1 On overall consideration, it appears that as the applicant is
adult and desirous of termination of pregnancy, the applicant is
permitted to undergo medical termination of her pregnancy at Civil
Hospital, Sola, Ahmedabad. Accordingly Superintendent of Civil
Hospital, Sola is directed to arrange for her medical termination of
pregnancy at the earliest.
11.2 Resultantly, it is directed that the best medical facilities be
made available by ensuring proper care and supervision and the
termination of pregnancy be carried out. The doctors shall take
necessary tissue from the fetus of DNA identification by following
scientific practice prescribed by the Standard Medical Practice for
DNA Identification and shall it hand over to the concerned
Investigating Officer for onward transmission for forwarding such
sample for analysis by the FSL at Gandhinagar. It is directed that if
the applicant is required to take post-termination treatment, the
concerned Civil Hospital shall provide all necessary medical facilities
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to her.
11.3 The Superintendent, Civil Hospital, Sola, Ahmedabad shall
ensure the best medical treatment through the senior-most
Gynecologists of his confidence. Once termination of the pregnancy
proceedings is over, the Superintendent, Civil Hospital, Sola,
Ahmedabad shall also depute one senior-most Gynecologist to
ensure that the periodical treatment as and when required by the
victim be given adequately.
11.4 The Superintendent, Civil Hospital, Sola, Ahmedabad shall
discharge the applicant after completion of the termination of
proceedings after examining the victim and finding suitable to do
so. Till then, the applicant shall be kept in the hospital.
12. With the above observations and directions, the present
petition stands disposed of. Direct service today is permitted. Copy
of this order also be provided to the learned APP for onward
transmission to the concerned Civil Hospital and the concerned
Investigating Officer for taking necessary action.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
