Abc (Victim) Thro Dhanjaysing Santlal ... vs State Of Gujarat
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Gujarat High Court

Abc (Victim) Thro Dhanjaysing Santlal ... vs State Of Gujarat on 8 August, 2025

                                                                                                                   NEUTRAL CITATION




                            R/SCR.A/11210/2025                                      ORDER DATED: 08/08/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 11210 of 2025
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                                   ABC (VICTIM) THRO DHANJAYSING SANTLAL THAKUR
                                                        Versus
                                               STATE OF GUJARAT & ORS.
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                       Appearance:
                       K T BELADIYA(9101) for the Applicant(s) No. 1
                       DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
                       MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                            Date : 08/08/2025

                                                             ORAL ORDER

[1.0] The father of the victim has approached this Court seeking following relief:-

"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 17 years and 05 months, at the earliest, as the same being in the best interest of the victim, considering her very young age, physical health and incident of rape causing grave injury to her mental health and further be pleased to direct the respondent no.3 to handover, in scientific manner, the tissues drawn from the fetus for DNA identification to the Police Inspector, Varachha Police Station, Surat, for onward transmission of the same to the concerned Forensic Science Laboratory, in the interest of justice; "

[2.0] Since victim of sexual abuse is a minor, her identity has not been disclosed in this order and she has been referred to as the 'minor' or the 'victim' in the entire order. Registry is directed to anonymize the name of the minor / victim in the judgment and all orders that may be passed as well as in the records which are publicly available.

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R/SCR.A/11210/2025 ORDER DATED: 08/08/2025

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[3.0] The facts taken out from the petition, are as under:-

[3.1] The father of the victim, on 29.07.2025 has filed the FIR being CR No.11210060251962 of 2025 with Varachha Police Station, Surat, for the offences punishable under Sections 64(2) (I), 64(2)(M) of the Bharatiya Nyaya Sanhita, 2023 and Sections 3, 4, 5(1), 5(j-ii) and 6 of the Protection of Children from Sexual Offences Act, 2012.

[4.0] On 07.08.2025, this court has passed following order:-

"NOTICE returnable on 08.08.2025. Learned APP waives service of notice on behalf of the respondent - State.

Meanwhile, let the victim minor be examined by the empaneled Doctors at Civil Hospital, Department of OBGY, Civil Hospital, Surat- respondent No.3 herein, consisting of Medical Superintendent, Senior Female Gynecologist and Psychologist. The victim should be admitted immediately and medical examination shall be carried out to let this Court know as to whether termination of pregnancy is medically feasible considering the fact that she is allegedly victim of rape and her guardian inclines to terminate her pregnancy. Doctors concerned shall follow settled guidelines to know her mental and psychological preparedness. Respondent No.3 is specifically directed to opine about the status of the fetus, as the pregnancy is at 26 weeks and 6 days. The authority shall also ascertain the calculative risk and complications to the mother (who is a minor herein), as well as the availability of tertiary care facilities to the mother, except at Ahmedabad, and clarify the risk factors qua the mother in the event the proposed termination of pregnancy is allowed. The Medical Board is also directed to clearly opine as to whether or not the foetus is viable or alive, and whether the foetus has any abnormality or not. The investigating officer is directed to make all necessary arrangement and facilitate the medical examination of the victim and submit a report before the Court tomorrow.

Direct service TODAY is permitted."

[4.1] Pursuant to the aforesaid order, a committee comprising of Dr. Bindiya Poshtiwala, Assistant Professor, Dr. Dimple

NEUTRAL CITATION

R/SCR.A/11210/2025 ORDER DATED: 08/08/2025

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Dadarwala, Asst. Professor, and Dr. Anjali Shrivastava, Head of Unit, Dept of Obstetrics and Gynecology, Government Medical College, Surat, on 08.08.2025, opined as under:

"Victim was first examined at SMIMER Surat on 30.07.2025 by Dr. Nidhi Patel (Senior Resident, Dept. of Obstetrics and Gyn. SMIMER, when she was 26 weeks + 06 days pregnant. All samples were taken at SMIMER, Surat.

According to MTP Act, second Trimester Medical Termination of Pregnancy can be done up to 24 weeks of gestation.

As per history, general and obstetric s examination, her vitals were normal, she was well oriented to time, place and person. She has 28 weeks + 01 day of intrauterine pregnancy and expected fetal weight of 1.1 kgs. As per USG done on 07.08.2025, baby is alive at present and is likely to survive with NICU care. Anomaly scan cannot be done at current gestational age but it does not show any major anomaly in fetus at present.

PANEL DOCTOR OPINION : Considering the fact that she is unmarried and teenage pregnancy was due to alleged history of sexual assault came under POCSO Act and pregnancy of 28 weeks + 01 day on 08.08.2025 (According to 28 + 00 weeks of usg on 07.08.2025), termination of pregnancy carries physical risk to victim, it can lead to preterm vaginal delivery, postpartem hemorrhage, uterine trauma, infection, failure of termination and may need surgical intervention (Hysterotomy). So, termination is not advisable with due risk to victim. At the same time, she is advise for follow up during pregnancy and after delivery

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R/SCR.A/11210/2025 ORDER DATED: 08/08/2025

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for physiological support regularly or as and when required.

[5.0] Learned advocate for the petitioner, after reiterating the facts of the case would submit that the minor is the victim of sexual abuse, she is the victim of alleged offence of rape registered with Varachha Police Station, Surat. It is further submitted that the minor has developed pregnancy of 27 plus weeks as on the date of the petition. It is painfully submitted that she was sexually abused by the accused. It is further submitted that because of the sexual abuse, the minor has become pregnant and continuance of pregnancy would defame her in the society. It is also submitted that the minor would not be in a position to maintain the child as her mental and physical conditions are too feeble and weak and she is not fit either physically or mentally due to the incident in question. She is in trauma being result of the incident. It is also stated that considering the immature age of the minor, it is neither possible nor permissible to nurture and maintain the child and also considering that such aspect will tarnish the image and reputation in the society, it is urged to permit to terminate her pregnancy in accordance with law.

[6.0] As noticed above and as per the report submitted by the Medical Board, pregnancy of the victim is of 28 weeks and 1 day of gestation and there are signs of viability in the newborn baby and if the baby is delivered live, then the chances of premature and associated complications cannot be ruled out. The foetus is

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live intrauterine foetus with no obvious gross structural defects or soft makers for chromosomal abnormalities. In view of the above, considering the fact that foetus is live and pregnancy has crossed 28 weeks and 1 day, medical termination of the pregnancy cannot be permitted for the following reasons:

(1) Having crossed the statutory limit of twenty-four weeks, the requirements in either of Section 3(2B) or Section 5 must be met;

(2) There are no "substantial foetal abnormalities" diagnosed by a Medical Board in this case, in terms of Section 3(2B). This Court called for a medical report from Medical Board to ensure that the facts of the case were accurately placed before it and no foetal abnormality was detected; and

(3) The report submitted by the Medical Board does not indicate that termination is immediately necessary to save the life of the petitioner, in terms of Section 5.

(4) The health and risk factor of the mother (herein, minor) and even unborn child has right to proper care and nutrition as and when it is fertilized and has a right of protection from unlawful killing and if termination of such alive foetus is permitted, it would be nothing but foeticide. Though there is no absolute legal status or right recognized by the law, however the Court has to consider the constitutional guarantees of right to live for all human being which obviously includes unborn also in some situation.

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R/SCR.A/11210/2025 ORDER DATED: 08/08/2025

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Herein, considering the aforesaid facts, though victim is minor, this Court with due sympathy and respect to victim with heavy heart is of the opinion that termination of pregnancy as sought for cannot be permitted as it will lead to commission of another offence of foeticide.

[7.0] For the aforesaid reasons and in view of the decision of the Hon'ble Supreme Court in the case of X vs. Union of India Another reported in 2023 INSC 919, I do not accede to the prayer of the petitioner for medical termination of the pregnancy.

[8.0] Hence, present petition is disposed of with following directions:

(i) Government Medical College, Surat, shall have to take appropriate steps for follow up of the health of minor victim till she delivers the child. Special treatment to new born child is also ordered to be provided including neonatal care as per the requirement for better growth and health of new born child.

(ii) Periodical health check-up of minor victim and new born child should be undertaken by the medical expert.

(iii) After ascertaining the wish of minor victim and physical condition of new born child, custody of new born child be handed over to Specialized Adoption Agency, Surat, in the supervision of the Child Welfare Committee.

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R/SCR.A/11210/2025 ORDER DATED: 08/08/2025

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(iv) After ascertaining the wish of minor victim if she do not want to reside alongwith her family members then the concerned Investigating Officer is directed to make appropriate arrangement to shift the minor victim to Nari Sarankshan Gruh, Surat, which shall in turn take care for her better future including to provide educational or vocational training to the minor victim as per the wish of the minor victim.

(v) The State Government to pay all the medical costs of delivery including expenses towards treatment and nutrition of the victim and new born child and all post- partem expenses for a period of six months.

(vi) The District Legal Services Authority is directed to take appropriate steps to provide interim compensation as early as possible to minor victim after following due process under the Victim Compensation Scheme.

(vii) The Secretary, District Legal Services Authority is directed to supervise all the aforesaid directions till the victim delivers and hand over the child for adoption to the Specialized Adoption Agency, Surat.

[9.0] With aforesaid observations and directions, present petition is disposed of. Notice is hereby discharged.

(HASMUKH D. SUTHAR,J) SUCHIT