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2021 Supreme(Guj) 228
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Solingaben Himrajbhai Machhar (Minor) Thro Himrajbhai Ratnabhai Machhar – Appellant
Versus
State Of Gujarat – Respondent
R/Special Criminal Application No. 3115 of 2021
Decided on : 26-03-2021
Advocate Appeared:
For the Appellant : MR JAPAN V. DAVE
For the Respondent: MR MANAN MEHTA, adv
Point of Law: Termination of pregnancy - Once termination is over, victim girl shall continue to receive treatment for length of period as deemed necessary by senior most doctors of team. The outcome and well being of victim girl shall be reported to this Court within one week.
Headnote:
MTP Act - Section 3 - Girl is 17 years of age - Complaint is indicative of the alleged rape by the accused. Considering her age and allegations made in the complaint, on giving her consent, the length of pregnancy since is going to complete 20 weeks, bearing in mind her specific consent and averments made in the petition, this petition deserves consideration.
Finding of the court: If father of victim-girl has no bank account, then amount shall be paid accordingly. This Court makes it clear that parents of the victim-girl can approach State Legal Service Authority if there is any further requirement in this regard - Termination of pregnancy requires to be permitted, which is in best interest of the victim, particularly when experts' opinion suggests that, “pregnancy can be terminated at GMERS Sola Civil Hospital with due risk in view of sickle cell trait and age of the patient - Theory of "best interest test" to hold that Court is required to ascertain course of action which would serve best interests of person in question.
Result: Petition disposed of
ORDER :
1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondents. Today, learned APP for the respondents-State has produced a report dated 26.03.2021 under the signature of Professor and HDD, Obs.& Gynec Depart. alongwith opinion of two Gynecologist of GMERS Sola Civil Hospital, which are taken on record.
2. The opinion given by the OBS-GYNEC department, GMERS is as under:
•?As per MTP Act, termination of pregnancy can be done upto 20 weeks of pregnancy.
•?At present patient is having 18 weeks 5 days pregnancy as per LMP 15/11/2020 and USG dated 26.03.2021 suggestive of 19 weeks 6 days pregnancy.
•?Pregnancy can be terminated with due risk associated with sickle cell trait and age of patient.
•?Informed consent of the guardian will be required for performing MTP after explaining the entire likely outcome.
•?HEMATOLOGIST AND CARDIOLOGIST OPINION TAKEN AT CIVIL ASARWA in view of sickle cell trait and as per their advise, she is at low cardiac risk (0.04%)
•?The medical methods (Mifepristone and Misoprostol) employed for termination of pregnancy at this maturity of foetus may result in failure in which case caesarean delivery (Hysterotomy) will be required which is associated with its own morbidity & mortality and anesthesia risks.
•?FETAL TISSUE FOR DNA SAMPLING WILL BE SENT AFTER TERMINATION.
•?CONCLUSION: PREGNANCY CAN BE TERMINATED AT GMERS SOLA CIVIL HOSPITAL WITH DUE RISK IN VIEW OF SICKLE CELL TRAIT AND AGE OF THE PATIENT.
3. Learned advocate for the petitioner submits that however as per the opinion of two Gynecologist of GMERS, Sola Civil Hospital, the petitioner has no objection if the termination of pregnancy of victim girl would be terminated by the doctor concerned.
4. As can be culled out from the record, the girl is 17 years of age. The complaint is indicative of the alleged rape by the accused. Considering her age and allegations made in the complaint, on giving her consent, the length of pregnancy since is going to complete 20 weeks, bearing in mind her specific consent and averments made in the petition, this petition deserves consideration.
5. Apt it would be, to reproduce at this stage, Section 3 of the MTP Act :-
“(1) 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 he 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 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 I of this provision provided 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”
6. This Court in case of Sushma Alias Gudiya D/o. Shivram Hariharprasad Maurya v. State of Gujarat & Ors. passed in Special Criminal Application No. 1693 of 2016 has observed and held thus :-
"Having heard both the sides and having also taken into consideration the provisions of the MTP Act and the decision of this Court rendered in case of Bhavikaben v. State of Gujarat & Ors. [Supra], for the reasons to follow hereinafter, the present petition deserves consideration."
7. Before delving into
