Abc Thro Ashokbhai Popatbhai Kabira vs State Of Gujarat
2025 Latest Caselaw 1449 Guj

Gujarat High Court

Abc Thro Ashokbhai Popatbhai Kabira vs State Of Gujarat on 29 July, 2025

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                            R/SCR.A/10671/2025                                 ORDER DATED: 29/07/2025

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                        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                       R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 10671 of 2025
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                                    ABC THRO ASHOKBHAI POPATBHAI KABIRA
                                                       Versus
                                             STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR PV PATADIYA(5924) 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 : 29/07/2025
                                                            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 16 years and 06 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 hand over, in scientific manner, the tissues drawn from the fetus for DNA identification to the Police Inspector, Sector-8 Police Station, Gandhinagar 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/10671/2025 ORDER DATED: 29/07/2025

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

[3.1] The father of the victim, on 18.07.2025 has filed the FIR being CR No.11216008250486 of 2025 with Sector-7 Police Station, District Gandhinagar for the offences punishable under Sections 137(2), 97 and 64 of the Bharatiya Nyaya Sanhita, 2023 and sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012.

[4.0] On 29.07.2025, this court has passed following order:-

"NOTICE returnable on 29.07.2025. 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, GMERS Medical College & General Hospital, Gandhinagar - 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. 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. Anjali Prajapati, Assistant Professor OBGYN, GMERS Medical College, Gandhinagar; Dr. Runoo Ghosh, Assistant Professor

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R/SCR.A/10671/2025 ORDER DATED: 29/07/2025

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OBGYN, GMERS Medical College, Gandhinagar; Dr. Meghavini Parmar, Assistant Professor OBGYN, GMERS Medical College, Gandhinagar; Mehul Panchal, Clinical Psychologist, GMERS Medical College, Gandhinagar and Dr. Meeta Parikh, Medical Superintendent, GMERS Medical College, Gandhinagar on 28.07.2025, opined as under:

"After carefully reviewing the case history and detailed examination, the concerned panel is of the following opinion-

Patient's LMP (Last Menstrual Period) is not known and according to USG done on 23 rd July 2025 in Department of Radiology, GMERS, Gandhinagar, patient is having single live intrauterine fetus of 26 weeks 4 days (according to abdominal circumference).

• Allied fitness of paediatric, psychiatry and anaesthesia departments has been obtained. As patient is anaemic (Haemoglobin level-9.5 gm/dl on 19 th July 2025) correction of anemia has been done. 1 unit of RCC has been transfused for the same. Her Hemoglobin in 10 gm/dl as of today.

• Fitness of psychologist and psychiatrist has also been obtained.

• Patient is minor and alleged victim of rape.

• As per the MTP Act amendment 25 th March 2021, termination of pregnancy can be done upto 24 weeks and patient's pregnancy is beyond 24 weeks.

However if decision of termination of pregnancy is taken, pregnancy can be termianted with following risks -

- Failure of induction or progression of labour, in which case hysterotomy (caesarean delivery) may be required which is associated with its own modbidity and mortality and anaesthesitic risks

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R/SCR.A/10671/2025 ORDER DATED: 29/07/2025

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- Termination at this gestation increase risk of infection, excessive blood loss and can become life threatening in some cases. Availability of adequate blood and blood products will need to be verified.

- Termination may result in live born foetus and baby may suffer morbid condition associated with extreme prematurity.

• Informed consent of the patient and her guardian will be required for termination of pregnancy after explaining the entire likely outcome.

• Also, appropriate guidelines need to be provided and provisions made for testing of foetus for paternity and appropriate guidelines need to be provided for the custody of newborn if survives."

[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 Sector-7 Police Station, Gandhinagar. It is further submitted that the minor has developed pregnancy of 26 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

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R/SCR.A/10671/2025 ORDER DATED: 29/07/2025

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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 26 weeks and 4 days 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 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 26 weeks and 4 days, 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.

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R/SCR.A/10671/2025 ORDER DATED: 29/07/2025

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(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.

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) GMERS Medical College, Gandhinagar 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

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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, Gandhinagar, in the supervision of the Child Welfare Committee.

(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, Gandhinagar, 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.

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R/SCR.A/10671/2025 ORDER DATED: 29/07/2025

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(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, Gandhinagar.

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

(HASMUKH D. SUTHAR, J.)

Ajay