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2017 DIGILAW 376 (GUJ)

Bhoi Kunjalben Narsinhbhai v. State of Gujarat

2017-02-15

J.B.PARDIWALA

body2017
ORDER : J.B. Pardiwala, J. 1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs: "(A) to admit and allow this petition; (B) to quash and set aside the impugned order dated 8.2.2017 passed by the learned 2nd Additional Sessions Judge, Anand and further be pleased to grant permission to the petitioner-victim to terminate the pregnancy as the continuance of the pregnancy would cause grave injury to the petitioner-victim; (C) pending admission, hearing and final disposal of this petition, the Honourable Court be pleased to grant permission to the petitioner-victim to terminate the pregnancy as the continuance of pregnancy would cause grave injury to the petitioner-victim as pregnancy is of 20-24 weeks, in the interest of justice; (D) to direct respondent No. 2, i.e. the in-charge Medical Officer of the General Hospital, Sola to undertake necessary medical tests of the petitioner-victim Bhoi Kunjalben Narsinhbhai, her physical and mental fitness to undergo termination of pregnancy as required under the Medical Termination of Pregnancy Act, 1971 and to submit report thereof to this Honourable Court with immediate effect for its subjective satisfaction; (E) to direct the Medical Superintendent, General Hospital, Sola, Ahmedabad to examine the petitioner victim Bhoi Kunjalbhai Narsinhbhai by 2 registered medical practitioners so also the opinion formed in good faith with certification to be reported to the Honourable Court as required under Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971; (F) to pass such other and further relief/s that may be deemed fit and proper in the facts and circumstances of the case;" 2. The case put up by the writ-applicant may be summarised as under: 3. The writ-applicant is an eighteen years' old girl, residing at village Gumadiya, situated in the district of Kheda. The mother of the writ-applicant, viz. Meenaben Narsinhbhai Bhoi, lodged an FIR on 17th May 2016 at the Bhalej Police Station, District Anand, for the offence punishable under Sections 363 and 366 of the Indian Penal Code against an unknown person. She had to lodge the FIR because her daughter, i.e. the writ-applicant herein, went missing. In the course of the investigation, one person by name Ashwin was arrested. Ashwin, as on date, is in the judicial custody. Ashwin, apprehending arrest, preferred an anticipatory bail application in the Sessions Court at Anand. She had to lodge the FIR because her daughter, i.e. the writ-applicant herein, went missing. In the course of the investigation, one person by name Ashwin was arrested. Ashwin, as on date, is in the judicial custody. Ashwin, apprehending arrest, preferred an anticipatory bail application in the Sessions Court at Anand. It appears that the learned Sessions Judge directed the Investigating Officer to record the statement of the writ-applicant herein. The writ-applicant, in her statement before the police, made it very clear that she is in a relationship with Ashwin and had left her parental home on her own free will and volition. She further stated that she met Ashwin for the first time in a wedding at a particular village. She developed intimacy for Ashwin and they got so close to each other that she became pregnant. As on date, the writ-applicant has a foetus of about 27 weeks. It appears that the family members pressurized her to get the pregnancy terminated. On account of such pressure, an application was filed in the Court of the learned Special Judge (POCSO), seeking permission to terminate the pregnancy, by filing the Criminal Misc. Application No. 81 of 2017. The learned 2nd Additional Sessions Judge, Anand, vide order dated 8th February 2017, rejected the application, observing as under: "[1] Applicant/the victim has preferred present application to permit her to go for abortion because the pregnancy which she is carrying on has occurred due to rape committed by the accused. [2] This Court has previously ordered on 23/01/2017 asking opinion of Civil Hospital, Ahmedabad with regard to termination of pregnancy. The report has been produced before this Court. It has been opined that pregnancy of 22 to 24 weeks is being carried out by the victim. Therefore, under the provision of Medical Termination of Pregnancy Act, the pregnancy cannot be terminated. [3] Heard L.A. for the applicant. Perused the report of the Civil Hospital, Ahmedabad. Read Sec. 3 and 5 of M.T.P. Act. [4] It appears that in such kind of case, pregnancy can be terminated if length of pregnancy does not exceed 20 weeks. In the present case, the pregnancy is of 22 to 24 weeks which does not fall within the purview of Sec. 3 of the M.T.P. Act. Read Sec. 3 and 5 of M.T.P. Act. [4] It appears that in such kind of case, pregnancy can be terminated if length of pregnancy does not exceed 20 weeks. In the present case, the pregnancy is of 22 to 24 weeks which does not fall within the purview of Sec. 3 of the M.T.P. Act. Not only that but in view of Sec. 5 also, there is no opinion on record by the doctor that the termination of such pregnancy is immediately necessary to save the life of pregnant woman. Even, no consent by parents have been taken in the present case. Therefore, application cannot be granted. Hence, Court passes following final order. ORDER Application is hereby dismissed. Signed and pronounced today in open Court on today on this 8th day of Feb., 2017. 4. Being dissatisfied, she has come up with this writ-application. 5. On 13th February 2017, the following order was passed: "1 Leave to correct the cause title. 2 Let urgent Notice be issued to the respondents, returnable on 14th February 2017. Ms. Thakore, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent No. 1 State of Gujarat. Direct service for the respondent No. 2 is permitted today. 3 It is brought to my notice that the victim is present today in the Court along with her mother. Ms. Thakore, the learned A.P.P. shall speak to the victim so as to ascertain her physical and mental condition as on date. Dr. Amrita D. Patel and Dr. Mahima Jain, serving as the Professors (Gynaecologists), are requested to personally remain present tomorrow i.e. on 14th February 2017 at 11:00 A.M. with the medical papers of Kunjalben Narsinhbhai Bhoi. This Court would like to know from Dr. Amrita D. Patel and Dr. Mahima Jain, whether terminating the pregnancy at this stage would endanger the life of the victim in any manner. This Court would also like to know from the two doctors, whether the victim should continue with the pregnancy or not. To put it in other words, whether the risk to the victim of continuance of pregnancy can gravely endanger her physical and mental health. 4 Ms. Thakore, the learned A.P.P. shall be provided a copy of the order passed by this Court for its onward communication. 5 Notify this matter on 14th February 2017 at Serial No. 1." 6. To put it in other words, whether the risk to the victim of continuance of pregnancy can gravely endanger her physical and mental health. 4 Ms. Thakore, the learned A.P.P. shall be provided a copy of the order passed by this Court for its onward communication. 5 Notify this matter on 14th February 2017 at Serial No. 1." 6. I had a talk with the writ-applicant in presence of Ms. Nisha Thakore and Ms. Shruti Pathak, the learned APPs attached with this Court. After having a talk with the writ-applicant, it is clear that what has been averred in this writ-application is not the correct version. What is projected through this writ-application is that the writ-applicant is a victim of rape and must be permitted to terminate the pregnancy as it would not be in the interest of the writ-applicant to deliver a child. She has made herself very clear that she wants to continue with the pregnancy and go to the house of Ashwin today itself and would not like to live with her parents. Both the learned APPs did try to explain her that her condition as on date is quite delicate and she would need the care and attention of her mother, but the writ-applicant is quite adamant and firm. She is not an absolute illiterate girl. She has studied upto Standard-12 (Science Stream). Once she makes herself clear that she wants to continue with the pregnancy, she being a major, that is the end of the matter. I need not go into the issue, whether the provisions of the Medical Termination of Pregnancy Act, 1971, will play any role or not. 7. In such circumstances, there is no good reason now for me to look into the impugned order passed by the Court below. However, taking into consideration the age of the writ-applicant and her delicate condition, I wonder how she will be able to manage at the house of Ashwin. 8. As noted above, Ashwin is in judicial custody. She can join Ashwin only if he is enlarged on bail by the court concerned. The writ-applicant also made herself very clear that today itself from this premises she would like to go to the house of Ashwin. The mother of the writ-applicant is also present in the Court. 8. As noted above, Ashwin is in judicial custody. She can join Ashwin only if he is enlarged on bail by the court concerned. The writ-applicant also made herself very clear that today itself from this premises she would like to go to the house of Ashwin. The mother of the writ-applicant is also present in the Court. I had a word with her in the presence of the learned APPs and found her condition quite pathetic. She is a broken lady worried about the society rather than her daughter. The uncle ('mama') of the writ-applicant is also present. 9. In such circumstances referred to above, I direct the police officer attached to the CPI Office, Anand, who is present in the Court, to take the writ-applicant in their vehicle and drop her at the village Nava Hadiya, Balasinor, i.e. at the house of Ashwin. By today late evening, the officer shall drop the writ-applicant and while dropping he will speak to the parents of Ashwin and make it clear that they will have to take care of the writ-applicant in all respect. They should be made to understand that the Court had called Ashwin today and had ascertained with Ashwin, whether he will continue the relations with the writ-applicant. Ashwin has assured in this regard that he would take care of the writ-applicant. 10. Let me make myself very clear that this has nothing to do with the offence which Ashwin has committed as alleged. The law will take its own course in this regard. As on date, I am only concerned with the interest of the writ-applicant and the child which is in the womb of the writ-applicant. 11. The Social Welfare Officer, Mahisagar, is directed to ensure that the writ-applicant delivers her baby safely. The officer concerned shall pay regular visits at the house of Ashwin to ascertain the health of the writ-applicant. When the due date for delivery is near, the officer concerned shall see to it that the writ-applicant is admitted in the Government hospital at the earliest and due care is taken of her and the infant. 12. The Health Officer attached to the Government Hospital, Balasinor, shall also ensure that the writ-applicant delivers her baby safely and the infant thereafter is looked after well atleast for a period of about one year. 13. With the above, this writ-application is disposed of. 14. 12. The Health Officer attached to the Government Hospital, Balasinor, shall also ensure that the writ-applicant delivers her baby safely and the infant thereafter is looked after well atleast for a period of about one year. 13. With the above, this writ-application is disposed of. 14. A copy of this order be provided to Ms.Nisha Thakore, the learned APP, for its onward communication. 15. The registry is directed to forward one copy each of this order to the Social Welfare Officer, Mahisagar, Collector, Mahisagar, and Health Officer attached to the Government Hospital, Balasinor.