Gujarat High Court
Xyz Victim Through Husenbhai @ ... vs State Of Gujarat on 28 April, 2025
NEUTRAL CITATION
R/SCR.A/6029/2025 ORDER DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO.6029 of 2025
(DIRECTION)
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XYZ VICTIM THROUGH HUSENBHAI
@ ANWARBHAI ALARAKHBHAI GAJI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DENISH V MAVADHIYA(9207) for the Applicant(s) No. 1
MR ROHAN SHAH APP for the Respondent(s) No. 1-3
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 28/04/2025
ORAL ORDER
1. Rule. Learned APP Mr. Rohan Shah waives service of
notice for respondents.
2. By way of the present petition under Articles 226
and 227 of the Constitution of India as well as
under the provision of the Medical Termination of
Pregnancy Act, 1971 and under Section 482 of the
Code of Criminal Procedure, 1973, the petitioner,
who is a father of victim girl aged about 15
years, has prayed for issuance of direction upon
the respondent authorities for termination of
pregnancy of his daughter.
3. Learned advocate for the petitioner submitted that
the victim girl is a victim of the offence
committed by the accused named in the FIR produced
on record at Annexure-A. It is submitted that when
the victim was examined, it was found that she was
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pregnant and, thereafter, she was taken to Doctor
for opinion for termination of the pregnancy and
upon examination, the concerned Doctor, vide his
report, opined that the victim girl was having
pregnancy of 26 weeks. It is submitted that the
victim girl is a minor girl aged about 15 years.
It is submitted that bearing and rearing of a
child in the womb would create a great mental
agony to her for her entire life and may invite
other socio-economical problems.
4. Learned advocate for the petitioner has placed
reliance upon the provision of the Medical
Termination of Pregnancy (Amendment) Act, 2021
(hereinafter referred to "MTP Act, 2021" for
short) and submitted that in the said provision,
it is specifically provided that where there is
any pregnancy alleged by the pregnant woman to
have been caused by rape, anguish caused by such
pregnancy shall be presumed to constitute a grave
injury to the mental health of the pregnant woman.
Referring to the said provision, it is contended
that the case of the daughter of the petitioner -
victim girl falls in such criteria and thus,
appropriate direction may be issued.
5. Learned advocate for the petitioner has placed
reliance upon the judgment of the Hon'ble Apex
Court in case of Ms. Z Vs. State of Bihar,
reported in (2018) 11 SCC 572 as well as the
judgment of this Court in case of Janak Ramsang
Kanzariya (minor) through Manjuben Knazar Vs.
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State of Gujarat & Anr., reported in 2011 Cri.L.J.
1306. Relying upon the judgment of this Court, it
is contended that considering the facts of the
case, permission was granted for termination of
pregnancy. It is, therefore, urged that this
petition be allowed and relief as prayed for be
granted.
6. On the other hand, learned APP has taken through
the factual aspects of the case and also verified
the status of the victim girl. It is submitted
that as per the order dated 24.04.2025 passed by
this Court, the concerned Investigating Officer
has taken the victim girl to Medical Officer,
GMERS Medical College & Civil Hospital, Junagadh
for medical examination on 25.04.2025 and after
medical examination, the concerned Medical Officer
has submitted his opinion, which is taken on
record. It is pointed out by learned APP that the
concerned Medical Officer of Sola Civil Hospital,
Ahmedabad, after carrying out medical examination
of the victim girl, has given positive opinion
about the termination of pregnancy. It is,
therefore, urged that appropriate order be passed.
7. I have heard learned advocates appearing for the
parties and have also considered the documents
produced on record including the opinion given by
the concerned Doctor.
8. Section 3 of the Medical Termination of Pregnancy
(Amendment) Act, 2021 reads as under,
"3. When pregnancies may be terminated by
registered medical practitioners.-
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(1) Notwithstanding anything contained in the
Indian Penal Code (45 of 1860), 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 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 sub-section (2),
account may be taken to the pregnant woman's
actual or reasonable foreseeable environment.
(4) (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
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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."
9. Thus from the above provision, it is clear that as
per Section 3 of the MTP Act, 2021, where the
length of pregnancy does not exceed 12 weeks, the
registered Medical Practitioner and where such
length of pregnancy exceed 12 weeks but does not
exceed 20 weeks, two Medical Practitioners can
terminate the pregnancy, however, they have to
form an opinion that the continuation of pregnancy
would invoke a risk to the life of the pregnant
woman or of grave injury to her physical life of
the pregnant woman or of grave injury to her
physical or mental health or 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. Thus
on perusal of Section 3 of the MTP Act, 2021, it
is clear that this provision allows abortion only
if specific conditions are met with. Therefore on
perusal of the opinion given by the Medical
Officer after medical examination of the victim
girl, it is clear that the Medical Officer has
categorically opined that the pregnancy can be
terminated. Here in the facts of the present case,
pregnancy is of 26 weeks, therefore, the Medical
Practitioner/s cannot on its own terminate the
pregnancy. If they terminate the pregnancy without
the order of the Court, the act of the doctor
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amounts to an offence punishable under the Indian
Penal Code or for any other for time being in
force. Further, in this case, the victim girl is
pregnant because of forcible rape of incident by
the accused. As per the contents of the petition,
it is submitted that because of continuation of
pregnancy, it would cause or constitute a grave
injury to the mental health of the minor - victim
coupled with the fact that bearing and rearing of
child in the womb would create a great mental
agony to her for her entire life and invite many
other socio-economical problems. This can be said
to be a grave injury to the mental health of the
pregnant woman.
10. Further, the right to dignity encapsulates the
right of every individual to be treated as a self-
governing entity having intrinsic value. Every
human being possesses dignity merely by being a
human and can make self-defining and self-
determining choices. Dignity has been recognized
as a core component of the right to life and
liberty under Article 21 of the Constitution of
India. Further, this Court has kept in mind the
ratio laid down by the Hon'ble Apex Court in the
cases of :- (i) X Vs. Principal Secretary, Health
and Family Welfare Department, Government of NCT
of Delhi & Anr., reported in (2023) 9 SCC 433; and
(ii) A (Mother of X) Vs. State of Maharashtra &
Anr., reported in 2024 INSC 371.
11. Considering the contents of the petition,
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provision of the applicable law, ratio laid down
by the Hon'ble Supreme Court in above referred
cases, right of privacy of the victim girl,
medical reports and bearing in mind the best
interest principle, as discussed hereinabove, this
Court is of the view that the present petition
deserves to be allowed as prayed for only with a
view to save and protect the life of the victim
girl.
12. Considering the peculiar facts of the case as also
considering the consent given by guardian and the
victim herself, the present petition is allowed.
Accordingly, the Medical Officer of GMERS Medical
College & Civil Hospital, Junagadh is directed to
arrange for medical termination of pregnancy of
the victim as early as possible subject to
following conditions,
(i) The procedure of termination of pregnancy
will be carried out in the presence of the
expert team of doctors. The expert doctors
will explain to the family members as well
a the victim the risk of getting the
termination of her pregnancy and also other
factors.
(ii) Every care and caution will be taken by the
doctors while terminating the pregnancy.
All medical attention and other medical
facilities including that of a presence of
a Pediatrician as well as a Radiologist and
other required doctors will be made
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available to her.
(iii) The post operative care upto the
extent required, will be extended to the
victim.
(iv) In case if fetus is found to be alive, the
doctors will give all medical assistance
either in that hospital or in other
hospital where such facility is available.
(v) 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 hand over the same
to the concerned Investigating Officer for
onward transmission for forwarding such
sample for analysis by the FSL.
(vi) All necessary care and caution shall be
taken by the doctors while carrying out
procedure for termination of pregnancy.
(vii) The State shall bear all the expenses
in connection with the procedure and all
medical expenses required in the interest
safety and welfare of the victim.
(viii) The Medical Officer of GMERS Medical
College & Civil Hospital, Junagadh shall
discharge the victim after completion of
the termination of pregnancy after
examining the victim and finding suitable
to do so. Till then, the victim shall be
kept in the hospital.
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13. Rule is made absolute to the aforesaid extent.
Direct service is permitted today.
14. Copy of this order also be provided to the learned
APP for onward transmission to the concerned
department / hospital / authority for complying
with the directions and necessary action.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
