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Gujarat High Court · body

2020 DIGILAW 485 (GUJ)

Shahida Khatoon v. State of Gujarat

2020-05-07

V.B.MAYANI

body2020
ORDER V.B. Mayani, J. 1. Heard Mr. Hardik H. Dave, learned advocate for the applicant and Mr. Pranav Trivedi, learned APP for the opponent State. 2. By way of the present application, the petitioner has prayed in para: 7 as under: "(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, permitting the petitioner to get her pregnancy terminated, after taking medical opinion from any Government Hospital, as may be deemed fit by this Hon'ble Court, in the interest of justice; (B) YOUR LORDSHIPS be pleased to direct the respondent no. 3 i.e. the In-charge Medical Officer of the Civil Hospital, Asarva, Ahmedabad or any other Government Hospital to undertake necessary medical tests of petitioner about physical and medical fitness to undergo termination of pregnancy as required under The Medical Termination of Pregnancy Act, 1971 and to submit the report thereof to this Hon'ble Court with immediate effect for its subjective satisfaction; (C) YOUR LORDSHIPS be pleased to direct the respondent no. 3 i.e. the In-charge Medical Officer of the Civil Hospital, Asarva Ahmedabad or any other Government Hospital to examine the petitioner by two 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; (D) YOUR LORDSHIPS be pleased to direct the respondent no. 3 i.e. the In-charge Medical Officer of the Civil Hospital, Asarva, Ahmedabad or any other Government Hospital to undertake necessary medical tests of petitioner about physical and medical fitness to undergo termination of pregnancy as required under The Medical Termination of Pregnancy Act, 1971 and to submit the report thereof to this Hon'ble Court with immediate effect for its subjective satisfaction, pending the admission, hearing and final disposal of this petition; (E) YOUR LORDSHIPS be pleased to grant such other and further reliefs, as may be deemed fit by this Hon'ble Court, in the interest of justice;" 3. Mr. Hardik H. Dave, learned advocate for the applicant has mainly submitted that the victim aged about 14 years was subjected to rape by her brother-in-law (Jijaji) and due to rape the victim conceived pregnancy of about 24 weeks and, therefore, considering the age factor and the health of the victim, the application for termination of pregnancy of victim was submitted. 4. 4. After filing of the above mentioned application, this Court has sent the victim to the Civil Hospital, Ahmedabad for the medical report regarding the opinion for termination of the pregnancy of the victim as well as the risk factor etc. It is pertinent to note that here in present case the victim is suffering also from the corona virus (Covid-19) as mentioned in the medical report. 4.1. Afterward, panel of three doctors examined the victim on 06.05.2020 and the panel has produced the report dated 06.05.2020 which is as under: "As required by above references, a panel of 3 gynecologists of CHA was constituted by HOD Obs. & Gynec Dr. A.U. Mehta to give opinion regarding termination of pregnancy of above mentioned EPR patient. The members of panel are 1. Dr. H.V. Oza (Additional Professor) 2. Dr. Shirish Toshniwali (Assistant Professor) 3. Dr. Sugandha Patel (Assistant Professor) The opinion of this panel is as follows: A. Today pregnancy maturity is 24 weeks + 2 days which is beyond the permissible gestational age for termination (20 weeks) as per the MTP Act of 1971. Hence, Court order would be required for termination of pregnancy. B. Patient is Covid positive with no morbidity as of today. Medical opinion has been taken and opined that management can be done with precautions. C. The patient has pregnancy in advanced second trimester wherein termination can be done with due risks for the procedure at this gestation. (Risks including but not restricted to bleeding, retained products requiring further surgical procedure etc.) So pregnancy can be terminated with court order after informed consent of care takers/legal guardian with due risk. Any increased risk due to COVID infection cannot be predicted due to lack of enough evidences." 5. As mentioned in the above medical report, there was risk factor as the pregnancy is of 24 weeks and two days and moreover the victim is suffering from Covid-19 and therefore the doctors have opined that termination of the pregnancy may be performed after the order of the Court but at the same time report contains the fact that it is required that legal guardian/caretaker should give consent after explaining the risk factor to the victim. 6. Here in the present case, victim aged about 14 years is residing with her sister viz. 6. Here in the present case, victim aged about 14 years is residing with her sister viz. Shahida Khatoon wife of Israel Jeebach Mansuri and she is the legal guardian and the complainant of the present case. Therefore, this Court has ordered on 06.05.2020 as under: "Heard Mr. Hardik H. Dave, learned advocate for the applicant and Mr. Pranav Trivedi, learned APP for opponent State through video conference. Mr. Trivedi, learned APP has forwarded a copy of the medical report which describes that as on today there is pregnancy of 24 weeks and two days and it is a risky procedure for termination of pregnancy. However, he submits that if the Court passes an order then only the pregnancy can be terminated with risk. It is also described in the report that the risk factor is to be explained to the legal guardian/caretaker of the victim as victim herself is Covid-19 positive and, therefore infection cannot be predicted due to lack of enough evidence. Therefore, this risk factor is required to be explained to the victim as well as to the legal guardian/caretaker. In this regard, learned APP is directed to forward the copy of the medical report to Mr. Dave, learned advocate for the applicant for its perusal and then after Mr. Dave, learned advocate for the applicant shall explain the total risk factor regarding termination of pregnancy after 24 weeks, as mentioned in the medical report as well as also the fact that victim is Covid-19 positive and in such position this risk factor cannot be predicted. Therefore, Mr. Dave, learned advocate for the applicant shall explain all these aspects including the medical report and risk factor to the victim as well as legal guardian/caretaker in detail and then after whether the victim as well as the legal guardian/caretaker gives consent for the termination of pregnancy or not is to be reported by Mr. Dave, learned advocate for the applicant to this Court tomorrow. Moreover, Mr. Dave, learned advocate has also submitted that as per the Act the termination of pregnancy can be performed upto 20 weeks, however, in a particular case, the Coordinate Bench of this Court had ordered termination of pregnancy of 26 weeks. Therefore, Mr. Dave, learned advocate shall produce copy of the said order that may be considered by this Court. Matter is adjourned to 07.05.2020." 7. Therefore, Mr. Dave, learned advocate shall produce copy of the said order that may be considered by this Court. Matter is adjourned to 07.05.2020." 7. As per the order dated 06.05.2020 of this Court, learned advocate Mr. Hardik H. Dave for the applicant had taken the written consent of the legal guardian who is also the complainant. Moreover, the written consent of the complainant and legal guardian of victim is taken on record which is produced by the learned advocate Mr. Dave. The said written consent reads as under: "Main, Shahida Khatoon, Pidita Ki Badi Bahan, Apni Marzi se Nimn Nivedan Deti Hun ki: Maan. High Court ke aadesanusar, Mujhse, Pidita Ki Badi Bahan Hone Ke Naate, Pidita Ke Lagbhag 24 Maah aur 2-5 din ke Garbh Ka Garbhpaat Karaane Ke Baare Me Raay Deni He. Ush Lihaaj Se RMO, Civil Asptaal Ko 3 Doctor ki Penal Ke Certificate Ki Vishayvashtu Ki Mujhe aur Pidita Ko Avgat Karaya Gaya He Aur Garbhpaat Ke Khatro Ki Jaankaari Dee Gai He. Pidita Ko Yah Jaankaari Dr. Shefali Shah Sahiba Ne Dee Aur Mujhe Shri J.L. Odedra Sahab Ne Bataai He. Tamaam Jaankaari Ke Baad Maine Jaana He Ki Pidita Garbhpaat Karaane Ko Sahmat He. Atah Main Bhee, Pidita Ki Bhalai Aur Garbh Ke Kaaran Bhaavi Samasyaye Ko Dhyan Me Rakhte Huye, Pidita Ka Garbhpaat Karrane Ki Anumati Deti Hu. Aur Yah Anumati Maanniya High Court Ko Bataane Ki Prathna Karti Hu." 8. In view of the above mentioned consent, the legal guardian/complainant/caretaker of the victim has been explained regarding the risk factor addressed by Dr. Shefali Shah as well as Mr. Odedara, Secretary of High Court Legal Services Committee and thereafter Shahidakhatun who is elder sister and legal guardian/caretaker of the victim has given the consent for the termination of the pregnancy of the victim. 9. Mr. Dave, learned advocate for the applicant has cited the order passed by the Coordinate Bench of this Court (Coram: Honourable Ms. Justice Sonia Gokani) in Special Criminal Application (Direction) No. 3679 of 2016 in the case of Madhuben Arvindbhai Nimavat (minor) through Arvindbhai Narottambhai Nimavat in which the age of the raped victim was 14 years and the father of the victim had applied for termination of the pregnancy of victim before this Court. Justice Sonia Gokani) in Special Criminal Application (Direction) No. 3679 of 2016 in the case of Madhuben Arvindbhai Nimavat (minor) through Arvindbhai Narottambhai Nimavat in which the age of the raped victim was 14 years and the father of the victim had applied for termination of the pregnancy of victim before this Court. This Court, in the said matter, had ordered on 08.06.2016 permitting the termination of pregnancy which is period of 22 weeks and three days. Relevant paras: 14 and 15 of the above mentioned order are read as under: "14. It can be noticed that patient has severe anemia with 6.5% hemoglobin as mentioned hereinabove and the pregnancy of 22 weeks and 3 days as on 7.6.2016. The Medical opinion suggests that termination can be carried out with the order of the Court and after correction of anemia with due risk of the procedure. 15. Since the request is made by the petitioner herself with the consent of the parents, bearing in mind, her very young age and incident of rape with pregnancy, grave injury to her mental health is to be presumed. Her fragile health and poor hemoglobin level requires that the team of the Doctors needs to examine her once again and also ensure her safety as this Court is of the opinion that it would be in the best interest of the victim to permit the termination of pregnancy, if otherwise, there is unanimity amongst the Doctors to the effect that such termination would be carried out safely." Then after this Court has permitted the termination of the pregnancy. 10. Learned advocate Mr. Dave for the applicant also relied upon the order of Hon'ble Apex Court in the case of Mamta Varma vs. Union of India and others reported in : Laws (SC) 2017 (8) 73 in which there was pregnancy of 25 weeks and one day. In the said case also, Hon'ble Apex allowed the petition for termination of pregnancy. The relevant paras of the said judgment i.e. paras: 6, 7, 8, 9 and 10 read as under: "6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 week and 1 day. The condition of the fetus is not compatible with life. The relevant paras of the said judgment i.e. paras: 6, 7, 8, 9 and 10 read as under: "6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 week and 1 day. The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull. 7. Importantly, it is reported that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioner's life is involved if she is allowed to undergo termination of pregnancy. 8. In the circumstances, we consider it appropriate in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. Mr. Ranjit Kumar, learned Solicitor General appearing for the respondents, has not opposed to the petitioner's prayer on any ground, legal or medical. We order accordingly. 9. The termination of pregnancy of the petitioner will be performed by the Doctors of the hospital where she has undergone medical check-up. Further, termination of her pregnancy would be supervised by the above stated Medical Board who shall maintain complete record of the procedure which is to be performed on the petitioner for termination of her pregnancy. 10. With the aforesaid directions, the instant writ petition is allowed in terms of prayer (a) seeking direction to the respondents to allow the petitioner to undergo medical termination of her pregnancy." 11. In view of the above mentions facts and circumstances, the following factors are considered. 11.1. The victim girl aged about 14 years is conceiving pregnancy of 24 weeks and two days; 11.2. The medical opinion describes that the termination of pregnancy of the victim can be performed but with the risk particularly when the victim is Covid-19 positive. The medical report also describes that consent of the legal guardian/caretaker is required; 11.3. The written consent has been obtained from the legal guardian/caretaker of the victim means the elder sister of the victim, i.e. the complainant; 11.4. The victim who is aged about 14 years is a victim of rape case; 11.5. The medical report also describes that consent of the legal guardian/caretaker is required; 11.3. The written consent has been obtained from the legal guardian/caretaker of the victim means the elder sister of the victim, i.e. the complainant; 11.4. The victim who is aged about 14 years is a victim of rape case; 11.5. Coordinate Bench of this Court in the above mentioned order passed in Special Criminal Application (Direction) No. 3679 of 2016 vide order dated 08.06.2020 had granted permission for termination of the pregnancy of victim aged about 14 years; 11.6. The Hon'ble Apex Court has, in the case of Mamta Varma vs. Union of India (supra) has permitted the termination of the pregnancy wherein the pregnancy was of 25 weeks and one day. 12. In view of the above mentioned facts and circumstances as well as considering the submissions of both the sides, the medical report, the consent of the legal guardian/caretaker, the age of the victim of rape case, I come to the conclusion that the pregnancy of the victim is ordered to be terminated with due care as prayed by the present petitioner. 13. Resultantly, I pass the following order in the interest of justice. 13.1. Let the senior expert doctors of the Ahmedabad Civil Hospital having expertization in such kind of case and the doctors who have examined the victim shall perform the termination of pregnancy of the victim girl without further reference to this Court after considering the medical position of the victim, minimizing the risk factor as well as taking into consideration the 'best interest principle'; 13.2. The doctors shall report regarding the performance of the termination of the pregnancy of the victim girl or any other situation to this Court within a week. At the same time, doctors shall take due care and caution for the health and best interest of the victim. Once the termination of pregnancy is performed and completed the victim shall be continued to take treatment for her good health for the period as per the opinion of the doctors; 13.3. The doctors and medical superintendent of Civil Hospital, Ahmedabad shall handover in scientific manner the tissue drawn from foetus for DNA identification to the Investigating Officer, Ishanpur Police Station, Ahmedabad for onward transmission of the same to the concerned Forensic Science Laboratory for the purpose of DNA identification. 14. The doctors and medical superintendent of Civil Hospital, Ahmedabad shall handover in scientific manner the tissue drawn from foetus for DNA identification to the Investigating Officer, Ishanpur Police Station, Ahmedabad for onward transmission of the same to the concerned Forensic Science Laboratory for the purpose of DNA identification. 14. A copy of this order shall be provided to the learned APP for the onward communication to the consent authority as well as doctors of the civil hospital. The learned advocate Mr. Dave is also permitted to forward copy of this order to concerned police authority and/or hospital as per requirement. 15. With the above directions, the present application is allowed. Rule is made absolute to the aforesaid extent. Registry is directed to intimate the present order to the concerned Hospital, learned advocate for the applicant and the concerned police authority through Fax Message, Email and/or any other suitable electronic mode. Learned advocate is also permitted to send copy of this order to the concerned police authority and the concerned hospital through Fax Message, Email and/or any other suitable electronic mode. With the above directions, this application is disposed of accordingly.