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Vejabhai Hariyabhai Pethani As … vs State Of Gujarat on 12 April, 2019

R/SCR.A/4217/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 4217 of 2019

VEJABHAI HARIYABHAI PETHANI AS LEGAL GUARDIAN OF MINOR
NATHIBEN VEJABHAI PETHANI
Versus
STATE OF GUJARAT

Appearance:
MR NIRAV C THAKKAR(2206) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS SHRUTI PATHAK, ADDL.PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

Date : 12/04/2019

ORAL ORDER

1. Present petition is preferred by the father of the victim girl

under Articles 226 and 227 of the Constitution of India read

with section 482 of the Criminal Procedure Code.

2. This Court on 09.04.2019 passed the following order:-

“1. By way of this petition, the petitioner begs to challenge the order
dated 08th April, 2019 passed by the Special Court (POCSO) and
Additional Sessions Judge, Devbhoomi Dwarka at Khambhaliya,
whereby the application for termination of pregnancy of the minor
who is the victim of the sexual offence, has been rejected.
She has alleged to have been kidnapped on 01.12.2018. The FIR
came to be lodged against the accused being IC. R.No.113 of 2018
before the Devbhoomi Dwarka Police Station for the offences
punishable under Sections 363 and 366 of the Indian Penal Code and
Sections 4 and 12 of the Protection of Children from Sexual Offences
(POCSO) Act, 2012.

2. When the accused was apprehended on March 22, 2019 from
Amreli and the daughter of the applicant was also found, it was
realised that she is pregnant and the pregnancy is of more than
12 weeks.

3. This Court has heard learned advocate, Mr.Nirav Thakkar
appearing for the applicant and learned Additional Public Prosecutor

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R/SCR.A/4217/2019 ORDER

for respondent State. It appears that the Court below has rejected
the request on the ground of insufficiency of the medical papers.

4. Let the victim girl be examined by the empaneled doctors at Sola
Civil Hospital, Ahmedabad. She should be admitted today and the
medical examination shall be carried out to let this Court know as to
whether termination of pregnancy is medically feasible, considering
the fact she is allegedly the victim of rape and is inclined to continue
her pregnancy. Let the settled guidelines be followed to know her
mental and psychological preparedness also.

5. Let the report be sent to this Court on or before April 12, 2019.

6. Stand Over to April 12, 2019.

7. A copy of the order be given to the learned Additional Public
Prosecutor for her to communicate it to the Superintendent, Sola Civil
Hospital.

8. Direct Service is permitted, TODAY.”

3. Today the report has been received from the Assistant Professor of

Obstetrics Gynecologists Depart. GMERS Medical College, Sola,

Ahmedabad, namely, Dr.Pallavi Ninama, Dr. Komal Modi and Dr.Shilpa

Gupta, to form an opinion for medical termination of pregnancy in case

of the victim girl the opinion given is as follows:

“1) The victim Nathiben Vejabhai Pethani aged 17 years is pregnant.
The gestational age of the pregnancy is 18 weeks 3 days.

2) MTP can be carried out as per the MTP Law as the week of
pregnancy is below 0 weeks. (According to MTP ACT pregnancy can be
terminated up to 20 weeks only.)

3) As per psychiatrist opinion of the institute,” for mental fitness it is
to be noted that patient has moderate intellectual disability. It will
hamper/reduce her capacity for judgment and stress tolerance. She is
fit for high risk procedure.”

4) As per opinion of Dept. of pediatrics, ” No any cardio-respiratory
abnormality detected at present. Patient is medically fit from ourside.

5) MTP can be performed with usual risk associated with sucht ype of
cases.

6) If in case medical method of termination of pregnancy fails we
may need to undergo surgical procedure in special cases.

7) As the victim is minor (17 yrs) consent of guardian will be
needed for termination of pregnancy as well as for nay operative
procedure if requires in case.”

4. This Court has heard learned advocate Mr. Thakkar appearing for the

petitioner. He has urged that since the termination of pregnancy is

permissible upto 20 weeks, more particularly, when this is a case of

alleged rape with specific opinion of the doctor that there is no cardio

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R/SCR.A/4217/2019 ORDER

respiratory abnormality detected and the patient is medically fit for

undergoing this procedure, the same be considered. He has urged that

her mental condition would be such that, if this order is not passed, she

being a victim of rape, has to undergo this trauma all through out her

life.

5. Learned Additional Public Prosecutor has urged that the Court may, in

the given set of circumstances of the case, choose to direct the

termination of pregnancy. However, the tissues from foetus may be

directed to be handed over for the purpose of DNA sampling in

scientific manner to the Investigating Officer. According to her, this

being a case of alleged rape, it is still under investigation.

6. In rejoinder, Mr. Thakkar, learned advocate for the petitioner, has

urged that the accused has been apprehended only in the month of

March,2019.

7. On hearing learned advocates for both the sides, this Court has noticed

that the victim is alleged of having abducted by the accused, who are

named in the First Information Report being C.R.No.I-113 of 2018

registered with Devbhoomi Dwarka police station for the offences

punishable under sections 363, 366 and 376 of the Indian Penal Code

and sections 4 and 12 of the Protection of Children from Sexual

Offences Act, 2012 on 15.12.2018.

8. She is already carrying 18 weeks and three days of pregnancy with a

specific report of Department of Pediatric that there is no cardio

respiratory abnormality and she is fit to medically undergo the

procedure. The Court has also considered the mental fitness of the

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R/SCR.A/4217/2019 ORDER

victim, from the report of Psychiatrist, she is found to have moderate

intellectual disability, which is hampering her capacity of judgment and

stress tolerance. However, she is found to be fit for this procedure and

is ready to so do it. She was present before this Court and her

willingness was also conveued by her to the Court personally.

9. It would be profitable under these circumstances to reproduce the

findings and observations in similar such matter, relying on the decision

of the Apex Court, which is as under:-

“5. What needs to be considered at this stage is the ‘best interest test’
as laid down by the Apex Court in the case of rape victim urging for
termination of pregnancy and also her social circumstances.
5.1 At would be to refer to the earlier decision of this Court:-
“This Court in case of Bhavikaben d/o Rameshbhai Solanki v. State of
Gujarat in Special Criminal Application (Direction) No.1155 of 2016
while dealing with the case of a rape victim who had made a request
for termination of pregnancy considering the decision rendered in the
case of Chandrakant Jayantilal Suthar v. State of Gujarat, (Supra) and
on discussing the provisions of Medical Termination of Pregnancy Act,
1971, the pregnancy was permitted to be terminated. It would be
appropriate to reproduce relevant paragraphs which reads as under:
“Before adverting to the facts in the instant case, provisions of MTP
Act, particularly Section 3 requires reproduction –

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 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,

(i) the continuance of the pregnancy would involve 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

(ii) there is a sub stantial 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 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

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R/SCR.A/4217/2019 ORDER

(2), account may be taken to the pregnant woman’s actual or
reasonable 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. (b) Save as otherwise provided in clause (a),
no pregnancy shall be terminated except with the consent of the
pregnant woman.

This Act permits termination of pregnancy where the length of
pregnancy does not exceed twelve weeks or where such length of
pregnancy exceeds twelve weeks but does not exceed twenty weeks, if
in the opinion of two registered medical practitioners, in cases of sub
section [2](b) of Section 3, continuance of pregnancy would involve a
risk to the life of a pregnant woman or of grave injury to her physical
or mental health, or there is a substantial risk that if a child were
born,it would suffer from such physical or mental abnormalities as to
be seriously handicapped. Explanation provides 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 woman.
Pregnancy thus can be terminated by registered medical practitioner
where it is not of more than twelve weeks. If it is of more than twelve
weeks, but less than twenty weeks, two medical practitioners need to
opine that continuance of pregnancy would involve a risk to the life of
pregnancy woman or that it may cause grave injury to her physical or
mental health. Likewise, physical or mental abnormalities of a child to
be born is also one of the grounds for medical practitioners to
terminate the pregnancy. Further, no pregnancy of any woman who
has not attained the age of 18 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.

The Apex Court in case of Chandrakant Jayantilal Suthar Anr. v.
State of Gujarat [Supra] had left it to the discretion of the medical
practitioners, considering the peculiar facts, who were to decide after
interaction with the victim, as termination of pregnancy was
immediately necessary to save life of the victim herself, it did not want
the Doctors to wait for the permission of the Court, if there was a
unanimity amongst the doctors; otherwise directed the majority view
to prevail. While so doing, the Court directed the Hospital authorities
to take necessary tissue from the fetus for DNA identification.
In case of Suchita Srivastava Anr. vs. Chandigarh Administration,
reported in 2009 (3) GLH 468, the Apex Court has laid down the theory
of best interest test to hold that the Court is required to ascertain the
course of action which would serve the best interests of the person in
question. The Court must undertake a careful inquiry of the medical
opinion on the feasibility of the pregnancy as well as social
circumstances faced by the victim. The Court’s decision should be
guided by the interest of the victim alone and not those of stakeholders
such as guardians or society in general. Apt it would be, to reproduce
the observations made in para 19 of the decision, which reads thus –

19. As evident from its literal description, the ‘Best interests’ test
requires the Court to ascertain the course of action which would serve
the best interests of the person in question. In the present setting this
means that the Court must undertake a careful inquiry of the medical
opinion on the feasibility of the pregnancy as well as social
circumstances faced by the victim. It is important to note that the
Court’s decision should be guided by the interests of the victim alone

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R/SCR.A/4217/2019 ORDER

and not those of other stakeholders such as guardians or society in
general. It is evident that the woman in question will need care and
assistance which will in turn entail some costs. However, that cannot
be a ground for denying the excise of reproductive rights.
Bearing in mind the decision of the Apex Court and keeping the ‘Best
interests’ test as the parameter, in the opinion of this Court, in the
present set of circumstances, careful inquiry of the medical opinion on
the feasibility of the pregnancy as well as social circumstances faced by
the victim, if are considered, this Court is of the opinion that
termination of pregnancy requires to be permitted, which is in the best
interest of the victim. It is to be noted that the team of Doctors have
on 18th February 2016 submitted report and opined, thus – After
reviewing history and detailed examination, blood reports and
sonography done at Civil Hospital, Sola, our opinion is as follow : –
Psychiatric evaluation suggest patient is not suffering from any
psychiatric disorder and patient is psychiatrically fit. Considering
involuntary pregnancy and unwillingness of victim to continue
pregnancy her mental trauma may increase if pregnancy continues.

Anesthetic evaluation suggest that slightly more risk of
anesthesia if pregnancy will terminated at present.

– Medical and surgical evaluation suggest that if proper nutrition and
care is maintained through feeding jejunostomy, there is no physical
harm in continuation of pregnancy or termination of pregnancy at
present.

– There is same or slight increase risk to victim if pregnancy is
terminated before term than physiological normal delivery at term.

– As per MTP Act, termination of pregnancy can be done up to 20 week
of pregnancy. At present, patient had 24 week live pregnancy.
• If the child will born at present, the chances of survival of new born
is very less due to extreme prematurity. But, if it delivers at term there
will not increase chance of pysical or mental abnormalities or seriously
handicapped.

Considering all experts opinion continuation of pregnancy will adversely
affect her mental status but will not affect her physical status.”
Professor Head, OBGY Department, GMERS Medical College, Sola,
Ahmedabad has opined, thus –

(1) Pregnancy at present is 24 weeks. As per MTP law, MTP can be
carried out only till 20 weeks in said case.

2.However termination can be carried out, if permitted by the Court
order in extreme situation considering increased risk of termination at
this gestational age in the said situation. As per the opinion of
Pediatrician, the child born at this age is not likely to survive due to
extreme prematurity. If the opinion of the team of Doctors is taken
into consideration, it could be noticed that her mental status will
adversely be affected, if pregnancy continues. She, therefore, falls
under the criteria set out in the MTP Act. This continuance of
pregnancy since involves grave injury to her mental health as her
pregnancy being the result of rape, the anguish caused also is to be
constituted as a grave injury to the mental health of the victim, and
therefore also, termination of pregnancy is permitted.
This Court had noticed, before referring the victim to the team of
medical experts, that she is being fed through Rielis tube and except
liquid naturally nothing could be provided. Her frail physical and mental
health is on account of trauma of rape she underwent and it appears
almost an impossibility for her to look after herself. She also attempted
suicide when humiliated by the accused. All these factual
circumstances that emerge on record, particularly very young age of

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R/SCR.A/4217/2019 ORDER

the petitioner leads this Court to conclude in favour of grant of her
request. Delay in approaching this Court has placed statutory
constraints which is because of various grounds narrated chief amongst
the same is her poor health and poverty stricken condition of parents.
However, when medical opinion does not indicate this act of
termination to risk her life, following the best interest test, request
warrants to be acceded to.

Therefore, it is being directed that with best medical facilities available
and on ensuring the proper care and supervision, termination of
pregnancy shall be carried out. Doctors shall take necessary tissue
from the fetus for DNA identification by following scientific practice
prescribed by the Standard Medical Practice for DNA identification.
Intimation of this order shall be sent to the Medical Superintendent,
Sola Civil Hospital, Ahmedabad forthwith by the registry and a copy of
this order shall also be sent to the learned PP for onward
communication.

Learned advocate for the petitioner shall also be provided a copy of
this Order for follow up action. Let the Medical Superintendent, GMERS
Medical College Hospital, Sola, Ahmedabad apprise this Court, the
well being of the victim and for that purpose alone, this matter is listed
on 24th February 2016. Direct service to be made forthwith.”

11. This Court, in case of Poojaben Vershibhai Charla (Minor)
through Vershibhai @ Varsingh Govindbhai Charla v. State of Gujarat
in Special Criminal Application (Direction) No.1681 of 2016 has also
dealt with the similar issue and also took note of the decision in the
case of Suchita Srivastava v. Chandiagarh Administration, reported in
2009
(3) GLH, 468, and keeping parameters of `Best Interest Test’,
permitted termination after seeking medical opinion.

12. In the matter on hand, this Court shall have to consider the course
of action bearing in mind the ‘best interest’ theory victim girl is very
young. Her trauma, mental agony and possibilities of social ostracism
needs to be kept in view. In the present set of circumstances, on
careful inquiry of the medical opinion on continuing feasibility of
continuing pregnancy as well as social circumstances faced by the
victim, the Court’s decision has to be guided by the best interest of the
victim alone and not of the stakeholders not of the guardian also.

13. At this stage, the certificate issued by the Associate Professor of
Department of Obstetrics and Gynecology, PDU, Government Medical
College, Rajkot, is reproduced hereunder: –

CERTIFICATE
“This is to certify that with reference to Honorable High Court order
dated 2.6.2016 and received on 6.6.2016, patient Madhuben Nimaval,
age 14 years was admitted in PDU Medical College, with case No.9311
and examined by panel of Doctors Dr. Kavita Duhereji (Incharge Head
of Department, OBGY, PDUMC, RAJKOT), Dr. Nirav Garala (Assistant
Professor, Radiologist Dr. Maulik (Assistant Professor) and physician
Dr. Hiren Makwana from the examination, it was determined that
patient has severe anemia (HB 6.5 gm) and pregnancy with period of
Gestation 22 weeks and 3 days. As per MTP Act termination can be
done upto 20 weeks. Order from Hon’ble Court and after correction of
Anemia with due risk of the procedure.”

Dated: 7.6.2016. Sd/-

Associate Professor,
Department of Department of
Obstetrics and Gynecology,
PDU, Government Medical College, Rajkot

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R/SCR.A/4217/2019 ORDER

14. It can be noticed that patient has severe anemia with 6.5%
haemoglobin 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 haemoglobin 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.

16. Let the Senior Expert Doctor interacting with the prosecutrix –
petitioner and her parents and without further reference to this Court,
take a decision bearing in mind the ‘best interest principle’ and
terminate her pregnancy as soon as possible.

17. The outcome and well being of the petitioner shall be reported
to this Court within one week. The concerned Doctors shall examine
the level of haemoglobin and carry out all other necessary tests before
proceeding to terminate the pregnancy. Once termination is over, the
petitioner – minor shall continue to receive treatment for the length of
period deemed necessary by the Senior Most Doctor of the
team.Medical Superintendent, PDU Civil Hospital, Rajkot shall hand
over, in scientific manner, the tissues drawn from the foetus for DNA
identification to the Police Inspector, Mahila Police Station, Rajkot for
onward transmission of the same to the concerned Forensic Science
Laboratory.

A copy of this order shall be provided to the learned APP for onward
communication.

With the above direction, this petition stands disposed of
accordingly.”

10. Keeping in mind the above referred decisions, and “the

best interest” theory for the victim girl and also considering

her trauma, mental agonies and possibility of social

ostracism , the Court is of the opinion that medical certificate

issued by the Assistant Professor of Obstetrics

Gynecologists Depart. GMERS Medical College, Sola,

Ahmedabad when is taken into consideration, let the

termination of pregnancy be carried out at the earliest making

the best medical facilities available to the victim girl and on

ensuring proper care and supervision in pre-termination and

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R/SCR.A/4217/2019 ORDER

post-termination period, the doctors shall take necessary

tissue samples from the DNA Identification by following

scientific practice prescribed by the Standard Medical

Practices for DNA Identification. The sample should be handed

over to the Investigating Officer concerned.

11. Intimation of this order shall be given to the Medical

Superintendent, Sola Civil Hospital, Ahmedabad forthwith by

the learned Additional Public Prosecutor. Copy of this order

shall be sent by the Registry to the Medical Superintendent.

12. Let the Medical Superintendent, GMERS Medical College

and Hospital, Sola, Ahmedabad apprise this Court of the well

being of the victim on conclusion of process and for that

purpose alone even though this matter is being disposed of,

the report shall be placed before this Court by the Registry.

13. After once the procedure of termination of pregnancy is

undertaken and concluded let due care be taken by the

hospital authorities to ensure that she gets proper treatment

and nourishment in post termination period. It is given to

understand that both the parents of the petitioner are present

to take care of the petitioner.

14. As a parting note, it is being directed that the matter of

the petitioner shall be referred to the Chairman, District Legal

Services Authority, Devbhoomi Dwarka, for interim

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R/SCR.A/4217/2019 ORDER

compensation, who shall follow the prescribed procedure to

award the same in 08 weeks from the receipt of the copy of

this order. On a specific query raised by this Court learned

advocate Mr. Thakkar has expressed his satisfaction over the

arrangements made by the officer in charge of police station

at the Civil Hospital, Sola, Ahmedabad.

15. With these directions, the petition is disposed of.

16. Resultantly this petition is allowed.

Direct service is permitted today.

(MS. SONIA GOKANI, J. )
SUDHIR

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