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2022 DIGILAW 300 (GUJ)

Raiyaben Devrajbhai Solanki v. State of Gujarat

2022-02-17

VIPUL M.PANCHOLI

body2022
JUDGMENT : 1. Rule. Learned APP Mr. L.B. Dabhi waives service of notice for respondents. 2. By way of the present petition under Articles 14, 21, 226 and 227 of the Constitution of India as well as under the provision of the Medical Termination of Pregnancy Act, 1971 and under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for following reliefs: "A. xxx xxx xxx. B. Your Lordships may be pleased to issue an appropriate writ, order or direction and Quash and set aside the order dated 07/02/2022 passed by Ld.sessions judge and Spl.judge (pocso), Rajkot (Annexure-A) and permit the minor rape victim to terminate her pregnancy by directing respondent authorities to complete evidence collection and providing best medical facilities as early as possible in the interest of justice. C. Pending admission and final disposal of this petition Your Lordships may be pleased to direct the respondent authorities to admit and provide medical facilities to the minor rape victim the interest of justice; D. xxx xxx xxx." 3. Heard learned advocate, Mr. Radhesh Vyas appearing for the petitioner and learned APP Mr. L.B. Dabhi appearing for the respondents. 4. Learned advocate for the petitioner submits that the minor daughter of petitioner was found missing from the house and later on it was learnt that she was kidnapped and raped several times and therefore FIR produced at Pgage no.11 is lodged. It is submitted that after registration of FIR, the victim was sent for medical examination wherein it was learnt that she is pregnant and having gestation period of around 8 weeks and 6 days. As the minor rape victim was not having good mental state owing to the rape and financial sources to raise a child which is a result of rape, the guardian and mother of the victim i.e. the petitioner approached the Sessions Court, Rajkot by way of filing Criminal Miscellaneous Application No.250 of 2022 and sought direction/permission to terminate the pregnancy of her daughter. It is submitted that the rape victim was referred to the Rasoolkhanji Janana Hospital, Rajkot and though the medical officer, after examining the rape victim, gave opinion that the victim is fit for medical termination of pregnancy, the learned Addl. Sessions Judge and Special Judge, (POCSO) Rajkot, by order dated 7.2.2022, rejected the application preferred by the petitioner. 5. It is submitted that the rape victim was referred to the Rasoolkhanji Janana Hospital, Rajkot and though the medical officer, after examining the rape victim, gave opinion that the victim is fit for medical termination of pregnancy, the learned Addl. Sessions Judge and Special Judge, (POCSO) Rajkot, by order dated 7.2.2022, rejected the application preferred by the petitioner. 5. Learned advocate for the petitioner has placed reliance upon the provision of the Medical Termination of Pregnancy (Amendment) Act, 2021 (hereinafter referred to "MTP Act, 2021" for short) and submitted that in the said provision, it is specifically provided that where there is any pregnancy alleged by the pregnant woman to have been caused by rape, anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Referring to the said provision, it is contended that the case of the daughter of the petitioner - victim girl falls in such criteria and thus, appropriate direction may be issued. 6. Learned advocate for the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in case of Ms. Z v. State of Bihar, reported in (2018) 11 SCC 572 as well as the judgment of this Court in case of Janak Ramsang Kanzariya (minor) through Manjuben Knazar v. State of Gujarat & Anr., reported in 2011 Cri.L.J. 1306. Relying upon the judgment of this Court, it is contended that in case of pregnancy of 12 weeks, permission was granted for termination of pregnancy. It is, therefore, urged that this petition be allowed and relief as prayed for be granted. 7. On the other hand, learned APP has taken through the factual aspects of the case and also verified the status of the victim girl. It is submitted that after filing of Criminal Miscellaneous Application No.250 of 2022, the rape victim was referred to the Rasoolkhanji Janana Hospital, Rajkot and the medical officer, after examining the rape victim, gave opinion that the victim is fit for medical termination of pregnancy. It is, therefore, urged that appropriate order be passed. 8. This Court has heard learned advocate, Mr. Radhesh Vyas appearing for the petitioner and learned APP Mr. L.B. Dabhi appearing for the respondents. I have also considered the documents produced on record including the opinion given by the concerned Doctor. 9. It is, therefore, urged that appropriate order be passed. 8. This Court has heard learned advocate, Mr. Radhesh Vyas appearing for the petitioner and learned APP Mr. L.B. Dabhi appearing for the respondents. I have also considered the documents produced on record including the opinion given by the concerned Doctor. 9. Section 3 of the Medical Termination of Pregnancy (Amendment) Act, 2021 reads as under, "3. When pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of 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 sub-section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment. (4) (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. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman." 10. The opinion given by the Medical Officer of Rasoolkhanji Janana Hospital, Rajkot is produced at page no.17 of the compilation, wherein it is stated that : "xxxxxx As per all experts opinion pt is fit for Medical Termination of pregnancy as per MtPact with due procedural risk with consent of pts and parents." 11. Thus from the above provision, it is clear that as per Section 3 of the MTP Act, 2021, where the length of pregnancy does not exceed 12 weeks, the registered Medical Practitioner and where such length of pregnancy exceed 12 weeks but does not exceed 20 weeks, two Medical Practitioners can terminate the pregnancy, however, they have to form an opinion that the continuation of pregnancy would invoke a risk to the life of the pregnant woman or of grave injury to her physical life of the pregnant woman or of grave injury to her physical or mental health or 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. Thus on perusal of Section 3 of the MTP Act, 2021, it is clear that this provision allows abortion only if specific conditions are met with. Therefore on perusal of the opinion given by the Medical Officer after medical examination of the victim girl, it is clear that the Medical Officer has categorically opined that the pregnancy can be terminated. Here in the facts of the present case, pregnancy is of 8 weeks and 6 days, the victim girl is pregnant because of forcible rape of incident by the accused. Here in the facts of the present case, pregnancy is of 8 weeks and 6 days, the victim girl is pregnant because of forcible rape of incident by the accused. As per the contents of the petition, it is submitted that because of continuation of pregnancy, it would cause or constitute a grave injury to the mental health of the minor - victim coupled with the fact that bearing and rearing of child in the womb would create a great mental agony to her for her entire life and invite many other socio-economical problems. This can be said to be a grave injury to the mental health of the pregnant woman. 12. This Court has also considered the judgment upon which reliance has been placed by learned advocate for the petition in case of Janak Ramsang Kanzariya (supra). In that case also, the Court has granted permission for termination of pregnancy of 12 weeks. This Court has also considered the judgment of Hon'ble Supreme Court in case of Sarmistha Chakraborty v. Union of India reported in (2018) 13 SCC 339 , where also the Hon'ble Supreme Court has granted permission to terminate the pregnancy of 25 weeks. 13. Considering the contents of the petition, provision of the applicable law, ratio laid down by the Hon'ble Supreme Court in above referred cases, right of privacy of the victim girl, medical reports and bearing in mind the best interest principle, as discussed hereinabove, this Court is of the view that the present petition deserves to be allowed as prayed for only with a view to save and protect the life of the victim girl. 14. Therefore, the present petition stands allowed. The concerned Doctors are permitted to terminate the pregnancy of the victim girl with due risk after ANC profile report, as requested by the petitioner. The concerned hospital authorities shall handover, in scientific manner, the tissues drawn from the fetus for DNA identification to the Investigating Officer of the crime registered by the petitioner against the accused at Bhadla Police Station, Rajkot Rural for onward transmission of the same to the concerned Forensic Science Laboratory. 15. Rule is made absolute to the aforesaid extent. Direct service today is permitted. 16. 15. Rule is made absolute to the aforesaid extent. Direct service today is permitted. 16. Registry to provide a copy of this order to learned APP for onward communication to the learned advocate for the petitioner, to the concerned Investigating Officer and Rasoolkhanji Janana Hospital, Rajkot for follow up action.