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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Pujaben Subedar Yadav – Appellant
Vs.
State of Gujarat and Ors. – Respondents
Special Criminal Application (Direction) No. 3095 of 2017
Decided On : 03-05-2017
Constitution of India -Article 226 -Indian Penal Code Section 376 - Protection of Children from Sexual Offences Act, 2012 -learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondents.By this writ application under Article 226 of the Constitution of India, the writ applicant, a minor, through her father namely, Subedar Ramchandra Yadav, has prayed for the following reliefs: Your Lordship be pleased to admit this petition.Your Lordship be pleased to issue appropriate writ or order or direction to terminate the pregnancy of petitioner - victim Pujaben who is minor aged 16 years, 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. 4 hospital to hand over in scientific manner, the tissues drawn from the fetus for DNA identification to the police inspector, Police Station, for onward transmission of the same to the concerned forensic science laboratory, in the interest of justice. Your Lordship be pleased to issue appropriate writ, or direction or order for termination of pregnancy of minor daughter of the petitioner, in the interest of justice. Pending, admission, hearing and final disposal of this petition, Your Lordship be pleased to direct the Respondent No. 1 to 4 to conduct medical termination of the pregnancy of the minor victim with two qualified surgeons including Gynecologists, Obstetrician and in the presence of qualified physician with due care and precaution after carrying out necessary medical check up so as to avoid any likelihood of untoward harm to the physical and mental health of minor Victim the interest of justice.Your Lordship may be pleased to grant such other and further reliefs as deem fit to grant in the interest of justice." It appears from the materials on record that the minor daughter is a victim of rape. She is sixteen years of age. On account of rape, she got impregnated. As on date, she is carrying pregnancy of just above twenty weeks. She seeks appropriate orders or directions to the authorities concerned of the Civil Hospital to get the pregnancy terminated. Since the age of the foetus is a bit little above twenty weeks, the permission of the Court is necessary. An F.I.R. has also been registered being I-C.R. No. 98 of 2017 with the Police Station for the offence punishable under Section 376 of the Indian Penal Code and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012) -Held Civil Hospital is personally present in the Court. Dr. Toshniwal submits that as such the termination is not likely to endanger the life of the victim. The general risk will always remain. Dr. Toshniwal has personally examined the victim, and otherwise, the victim is in a fit condition to undergo termination of pregnancy.In such circumstances referred to above, I dispose of this writ application with the following directions: Let two other Doctors along with Mr. Toshniwal examine the victim once again for the purpose of carrying out the procedure of termination of the pregnancy. After the necessary examination is undertaken, the team of Doctors shall proceed to terminate the pregnancy at the earliest. pregnancy be terminated, if otherwise, there is unanimity amongst the Doctors to the effect that such termination would be carried out safely. Medical Superintendent of the Civil Hospital, shall hand over, in a scientific manner, the tissues drawn from the foetus for the DNA identification to the Investigating Officer of the concerned police station for onward transmission of the same to the concerned Forensic Science Laboratory. Once the termination is over, the victim shall continue to receive treatment for the length period deemed necessary by the Senior Most Doctor of the Team. With the above, this writ application is disposed of. Direct service today is permitted. Disposed off -Application is Disposed.
J.B. Pardiwala, J.
1. Rule returnable forthwith. Ms. Pathak, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondents.
2. By this writ application under Article 226 of the Constitution of India, the writ applicant, a minor, through her father namely, Subedar Ramchandra Yadav, has prayed for the following relief's:
"(9) (A) Your Lordship be pleased to admit this petition.
(B) Your Lordship be pleased to issue appropriate writ or order or direction to terminate the pregnancy of petitioner - victim Pujaben who is minor aged 16 years, 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. 4 hospital to hand over in scientific manner, the tissues drawn from the fetus for DNA identification to the police inspector, Ramol Police Station, Ahmedabad, for onward transmission of the same to the concerned forensic science laboratory, in the interest of justice.
(C) Your Lordship be pleased to issue appropriate writ, or direction or order for termination of pregnancy of minor daughter - Pujaben of the petitioner, in the interest of justice.
(D) Pending, admission, hearing and final disposal of this petition, Your Lordship be pleased to direct the Respondent No. 1 to 4 to conduct medical termination of the pregnancy of the minor victim with two qualified surgeons including Gynecologists, Obstetrician and in the presence of qualified physician with due care and precaution after carrying out necessary medical check up so as to avoid any likelihood of untoward harm to the physical and mental health of minor Victim - Pujaben in the interest of justice.
(E) Your Lordship may be pleased to grant such other and further reliefs as deem fit to grant in the interest of justice."
3. It appears from the materials on record that the minor daughter of Subedar Ramchandra Yadav is a victim of rape. She is sixteen years of age. On account of rape, she got impregnated. As on date, she is carrying pregnancy of just above twenty weeks. She seeks appropriate orders or directions to the authorities concerned of the Civil Hospital to get the pregnancy terminated. Since the age of the foetus is a bit little above twenty weeks, the permission of the Court is necessary. An F.I.R. has also been registered being I-C.R. No. 98 of 2017 with the Ramol Police Station, Ahmedabad for the offence punishable under Section 376 of the Indian Penal Code and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act, 2012').
4. The accused has been arrested and I am told that he is in the judicial custody as on date.
5. Indisputably, no application was filed before the Court below seeking the necessary permission. At this point of time, if I would relegate the writ applicant to apply before the Court concerned, it will take some more time and the same will not be in the interest of the victim. In such circumstances, as an exceptional case, I am taking up this matter.
6. Having regard to the fact that the victim is aged sixteen and is carrying pregnancy of above twenty weeks, the same will cause lot of mental stress and grave injury to her mental health.
7. A Coordinate Bench of this Court had an occasion to consider almost an identical issue in the case of Madhuben Arvindbhai Nimavat (Minor) through Arvindbhai Narottambhai Nimavat vs. State of Gujarat [Special Criminal Application No. 3679 of 2016 decided on 8th June 2016]. Let me quote the entire judgment as under:
1. "Petitioner herein is a minor girl who through her legal guardian and father who is a labourer has preferred this petition under Article 226 of the Constitution of India seeking termination of pregnancy. She is a victim of rape and aged about 14 years. The FIR came to be filed with Mahila Police Station, Rajkot being I-CR No. 51 of 2016 for the offenc
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