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Judgment
Gita Gopi, J
Heard Mr. Jigneshkumar Nayak, learned advocate for the petitioners and Ms. Monali Bhatt, learned APP for the respondent State.
Rule, learned APP waives service of notice of Rule on behalf of respondent State. With the consent of both the sides, the matter is heard today
finally.
On 09th August, 2021, the matter was prayed for urgent hearing and direction in terms of para-6 was issued, which reads as below:
“The victim girl be admitted immediately and if possible today itself, at Civil Hospital, Sola, Ahmedabad and the empaneled Doctors shall give their
medical opinion regarding the feasibility of termination of pregnancy which is alleged to be caused because of the penetrative sexual assault, as
defined in Protection of Children from Sexual Offences Act, 2012. The impaneled Doctors shall follow the medical guidelines to know the medical,
physical and psychological status of the victim. The medical report be produced tomorrow i.e. 10.8.2021 before 2:00 P.M.â€
In compliance of the direction, the report was given Yesterday but it is informed that because of examination of the victim and since the doctors
were waiting the report, they could conclude the process late in the evening, therefore the matter is taken up for final hearing today.
The report of impaneled Doctors, Department of Obstetrics & Gynaecology, GMERS, Sola, dated 10.08.2021 has been produced by Police
Inspector, Kalol Police Station, District Gandhinagar, through learned APP Ms. Monali Bhatt. The medical opinion regarding the termination of
pregnancy is given under the signature of three Doctors and their opinion reads as under:
“After opinion & fitness of allied medical specialities, we above panel doctors are of the opinion that pregnancy can be terminated with usual risk
associated with such condition keeping in mind age of patient & gestational age.â€
It appears from the report that after reviewing history, lab reports and performing physical examination allied fitness with due risk of anemia and
hypokalemia has been done by Medicine, Anaesthetic & Paediatric specialities. Anxiety treatment prescribed by Psychiatry department. The opinion
was given by panel doctors concluding that the pregnancy can be terminated with usual risk associated with such condition keeping in mind age of
patient and gestational age.
The petitioner is the father of the victim, and on 09.08.2021, the petitioner and the victim were present before this Virtual Court and the father of
the victim has stated that continuation of pregnancy would cause injury to mental and physical health of the victim and he also stated that the
continuation of pregnancy would effect the future of the minor. Thus, in her interest, he submitted that termination of pregnancy would be the only
course to avoid all possibilities of social ostracism.
Bearing in mind the best interest theory and also considering the fact that the victim girl is still minor and she also does not want to continue the
pregnancy and also taking into consideration her trauma, mental agony and possibilities of social ostracism, it is required to take a decision which is in
the best interest of the minor.
As per the Foetal USG Report of Sola Medical College Hospital, Department of Radiology, the intrauterine live floating fetus is 24 weeks and 5
days. Section 3 of Medical Termination of Pregnancy Act, 1971, (for short “MTP Actâ€) in a normal circumstances permits the termination of the
pregnancy by a registered medical practitioner and when the length of the pregnancy does not exceeds twelve 12 weeks, then the pregnancy can be
terminated, but when the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, then such termination is permissible, if
not less than two registered medical practitioners affirms the opinion in good faith that, the continuation of the pregnancy would cause a risk to the life
of the pregnant woman or of grave injury to her physical or mental health; or there is substantial risk that if the child were born, it would suffer from
such physical or mental abnormalities as to be seriously handicapped.
Explanation 1 of sub-section (2) of Section 3, states that when the 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.
Sub-section (3) of Section 3 of the MTP Act, lays down that, in determining whether the continuance of a pregnancy would cause such risk of injury
to the health, the pregnant woman’s actual or reasonable foreseeable environment may be taken into account and no pregnancy of the woman,
who has not attained the age of eighteen years, shall be terminated except with the consent in writing of a guardian.
Here in this case the petitioner is the father who is a guardian of a minor has come up with the prayer for termination of pregnancy. In case where
the provisions of Section 3 and 4 is not applicable then such permission can be granted in view of the provisions of Section 5 of MTP Act where the
opinion is formed by registered medical practitioner in good faith that the termination of such pregnancy is immediately necessary to save the life of
the pregnant woman.
Thus, taking this fact into consideration and the opinion expressed by panel doctors, in the opinion of this Court, the termination of pregnancy is
feasible. Taking into consideration the opinion of the empaneled Doctors and the fact that the termination of pregnancy is necessary to safeguard the
physical and mental health and life of the victim, the petition is allowed.
The pregnancy of the minor girl is directed to be terminated through the empaneled Doctors, Department of Obstetrics & Gynecology, GMERS,
Sola, on urgent basis keeping in mind the best interest of the victim, who is minor, by all the concerned. If necessary, medical support by all the means
be sought for the well being of the child examining the physical or mental status. All the medical facilities be made available to the victim girl ensuring
the proper care in pre-termination and post-termination.
Since the minor is a victim of penetrative sexual assault, as defined under the Protection of Children from Sexual Offences Act, 2012, let the
Doctors take necessary tissue samples for D.N.A. identification / D.N.A. profiling and such samples, as per the requisite procedure, be handed over
to the investigating officer. The D.N.A. Report should be part of the investigation and chargesheet papers.
The petitioner, being the father, will be at liberty to seek compensation under the Victim Compensation Scheme from District Legal Services
Authority, Surat.
With the above observations and directions, the petition stands disposed of.
Over and above the regular mode of service, Direct service today is permitted through E-mail and by any other electronic mode. Office to send
copy of this order to respondent no.3 today by Fax and by E-mail.