Gujarat High Court
Gayatriben Rajubhai Vanshkar vs State Of Gujarat on 24 July, 2025
NEUTRAL CITATION
R/SCR.A/10444/2025 ORDER DATED: 24/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 10444
of 2025
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GAYATRIBEN RAJUBHAI VANSHKAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR K I KAZI(5030) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3,4
MR ROHAN SHAH, for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 24/07/2025
ORAL ORDER
[1.0] The mother of the victim has approached this Court seeking
following relief:-
"Issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ order or direction,
directing the respondent to terminate the pregnancy of
daughter of the applicant (*************) and presently
she is aged 17 years and 6 months (date of birth :
16.01.2008); at the earliest, as the same being in the best
interest of the victim, considering her very young age,
physical health and in connection with FIR being Crime
Register No.11216025250023 of 2025 registered with Santej
Police Station District Gandhinagar on dated 12.01.2025."
[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.
[3.0] The facts taken out from the petition, are as under:-
On 07.01.2025 the victim i.e. daughter of the complainant
had left her parental house without intimating to anybody and
thereafter, the complainant - petitioner and other family
NEUTRAL CITATION
R/SCR.A/10444/2025 ORDER DATED: 24/07/2025
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members had started search but failed to trace her
whereabouts. During the search it was also come to know that
one person I.e respondent no.4 herein is having friendship
relation with daughter of the complainant and he is also missing
since 07.01.2025. Therefore, the petitioner had lodged a
complaint with Santej Police Station being FIR
No.11216025250023 of 2025 on 12.01.2025. Thereafter, as
there were no progress in the investigation the petitioner had
filed an application being Special Criminal Application No.4233 of
2025 before this Hon'ble Court wherein vide order dated
25.03.2025 notice was issued and further directed the
respondent no.2 to keep the corpus present before the Court.
Thereafter, the accused and victim were found and produced
before this Hon'ble Court on 25.06.2025. Thereafter, custody of
the victim was handed over to the petitioner and the victim was
taken to Hospital for examination and during the physical
examination, it was found that the victim was having pregnancy
of about eight weeks.
[4.0] On 24.07.2025, this court has passed following order:-
"NOTICE returnable on 24.07.2025. Learned APP waives
service of notice on behalf of the respondent - State.
Meanwhile, let the victim minor be examined by the
empaneled Doctors at General Hospital, Department of
OBGY, "D" Block, Office of the Medical Superintendent,
Civil Hospital, Asarwa, Ahmedabad - 380016 -
respondent No.4 herein, consisting of Medical
Superintendent, Senior Female Gynecologist and
Psychologist. Since the victim is residing at Madhya
Pradesh and considering her travel, the time to appear
before the authority by 23.07.2025 evening. The victim
should be admitted immediately, and a medical
examination shall be carried out to let this Court know
whether termination of pregnancy is medically feasible,
considering the fact that she is allegedly a victim of rape
and her guardian inclines to terminate her pregnancy. The
Doctors concerned shall follow the settled guidelines to
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R/SCR.A/10444/2025 ORDER DATED: 24/07/2025
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assess her mental and psychological preparedness. The
Investigating Officer is directed to make all necessary
arrangements and facilitate the medical examination of
the victim and submit a report before the Court on or
before 24.07.2025.
Direct service TODAY is permitted."
[5.0] Learned advocate for the petitioner, after reiterating the fact 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 Santej Police
Station, District Gandhinagar, being FIR No.11216025250023 of 2025,
for the offence punishable under Sections 137(2) and 87 of the
Bharatiya Nyaya Sanhita. It is further submitted that the victim who is
aged 17 years and 6 months has developed pregnancy of eight weeks
as on 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] Section 3 of the Medical Termination of Pregnancy Act, 1971 (in
short "the Act") reads as under:-
"SECTION 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
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R/SCR.A/10444/2025 ORDER DATED: 24/07/2025
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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 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.
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(b) Save as otherwise provided in clause (a), no pregnancy
shall be terminated except with the consent of the pregnant
woman."
[7.0] Pursuant to the order dated 22.07.2025, the Department of
Obstt & Gynec, B. J. Medical College, Civil Hospital, Ahmedabad,
submitted its opinion dated 24.07.2025, which is placed on record by
the learned APP which is taken on record. The victim is examined by
the panel of Doctors comprising of senior female gynecologist, Clinical
psychologist, Radiologist and Physician and jointly opined that all the
parameters of the victim is found normal and further it is examined by
clinical psychologist who opined her feasibility of termination of
pregnancy and also opined that she is carrying 12 weeks 3 days of
fetus. She is found medically fit for medical termination of the
pregnancy.
[8.0] Before proceeding further to decide the issue, opinion of the
medical experts, is required to be referred to, which reads as under:-
"As per the physician she is found to be medically fit for
Medical Termination of Pregnancy. He further advised for
anesthetic evaluation as it is a case of second trimester
termination of pregnancy.
Associate professor in anaesthesia Dr. Seema Gandhi has
assessed her and found to be fit for anaesthesia at present
and will be reassessed on day when the procedure is done.
After the panel of doctors opinion it is found that she is
medically and psycologically fit for termination of pregnancy.
In view of her gestational age she will be needing second
trimester method of termination of pregnancy and she can
be terminated as per the MTP Act. Common complications
related to the second trimester methods of termination of
pregnancy like excess bleeding, incomplete abortion
requiring curettage infection are found with the procedure
and can be managed accordingly."
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R/SCR.A/10444/2025 ORDER DATED: 24/07/2025
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[9.0] It is opined that due to the age factor, Common complications
related to the second trimester methods of termination of
pregnancy like excess bleeding, incomplete abortion requiring
curettage infection are found with the procedure and can be
managed accordingly; however, this risk is minimal and can be
managed with proper medication. Otherwise, there is nothing adverse
in allowing the termination of pregnancy, as it is in the best interest of
the victim, considering her bodily autonomy and the wishes of the
victim and her guardian as to whether to continue or terminate the
pregnancy.
[10.0] Explanation to the statutory provision u/s 3(2) of the Act
spells 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 minor woman.
[11.0] In the case of X vs. Union of India reported in 2023(0)
AIJEL-SC 72615, it has been observed in paragraph 14 as under:
"14. Where the length of the pregnancy exceeds twenty
weeks but does not exceed twenty-four weeks, two RMPs
must be of the opinion discussed in the preceding
paragraph.11 The categories of women where a
pregnancy beyond 20 weeks and up to 24 weeks may be
terminated are permitted to be prescribed by rules made
by the delegate of the legislature. Rule 3B of the MTP
Rules (as amended in 2021) provides grounds for the
termination of a pregnancy up to twenty-four weeks. The
termination may be allowed in the following cases or for
the following persons:
a. Survivors of sexual assault or rape or incest;
b. Minors;
c. xxx
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[12.0] In the facts and circumstances of the case on hand,
present case falls under the purview of Section 3(B) of the MTP Rules,
2021 and this court finds that the right of bodily integrity calls for a
permission to allow her to terminate her pregnancy. The opinion of the
Doctors clearly warrant the inference that the continuance of the
pregnancy involves the risk of a possible grave injury to her mental
health as required by Section 3(2)(i) of the Act. Section 5 of the Act
permits termination of pregnancy beyond 20 weeks. The courts have
expansively interpreting section 5 of the Act, to permit termination of
pregnancy beyond 20 weeks, in circumstances where it is considered
imperative to save life of the victim herein pregnancy of six weeks.
Rule 3(b) of Medical Termination Pregnancy Rules, 2023 may also be
pressed into service. One should not forget that the victim is minor.
The Medical Board has opined positively. In these circumstances, it
would be poignant to continue with the pregnancy for the minor, which
is involuntary in nature. The unwillingness of parents and minor to
continue the pregnancy is explicit and expected trauma both physical
and mental shall be increased if such pregnancy is allowed to continue
and may cause major risk to the body of the minor. 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.
[13.0] At this stage, the Court has considered the decision
wherein 'the best interest' of the victim girl 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.
NEUTRAL CITATION
R/SCR.A/10444/2025 ORDER DATED: 24/07/2025
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[14.0] For the foregoing reasons, this petition is allowed in terms
of permitting termination of the pregnancy of the minor to be carried
out by the B. J. Medical College, Civil Hospital, Ahmedabad at the
earliest with medical facilities available to the victim girl and on
ensuring proper care in pre-termination and post-termination period
since present victim is having 12 weeks 3 days of pregnancy as of
now. The Doctors performing termination procedure shall take
necessary tissue from the fetus for DNA identification in scientific
manner and shall hand it over to the Investigating Officer concerned
for onward transmission of the same to the concerned FSL for analysis.
If post termination of pregnancy, the victim requires to take treatment,
the concerned Civil Hospital is directed to provide all necessary
treatment and facility.
[15.0] With above observations and directions, present petition
stands disposed of. Direct service TODAY is permitted.
[16.0] Copy of this order also be provided to learned APP for
onward transmission to the concerned Civil Hospital and the concerned
Investigating Officer for taking necessary action.
(HASMUKH D. SUTHAR,J)
ANKIT
