Nirav Anupambhai Tarkas vs State of Gujarat and Others

Honourable Mr. Justice MD Shah

This petition under Articles 14, 226 and 227 of the Constitution of India has been filed to quash and set aside order dated 27-7-2007 passed by the learned Sessions Judge, Vadodara, in Criminal Revision Application No. 65 of 2006 confirming the order dated 8-2-2006 passed by the learned Chief Judicial Magistrate, Vadodara, in Criminal Inquiry No. 40 of 2003 whereby the complaint filed by the complainant was dismissed.

The facts of the case in brief are that a complaint was filed by the petitioner-original complainant against the respondent Nos. 2-6-original accused before the Court of learned Chief Judicial Magistrate, Vadodara for the offences punishable under Sections 312 read with Secs. 202 and 114 of IPC inter alia stating that the respondent No. 2 is his wife and respondent No. 3 is father-in-law, respondent No. 4 is mother-in-law and respondent Nos. 5 and 6 are brothers-in-law. It is further stated that as his wife became pregnant, he took her to Dr. Miraben Pankajbhai Desai on 19-12-2002, who informed that growth of the child was normal. However, when his wife wanted to terminate the pregnancy, he opposed to the same. The respondent No. 2 then approached Dr. Meeraben, however, as there was no consent of the husband, she did not agree for abortion. As the respondent No. 2 informed her parents that she did not want to keep the child, his in-laws were pressuring him for abortion. However, on 20-12-2005 the respondent No. 3 came to Vadodara and on the next day took away respondent No. 2 and went to Surat and approached Dr. Chetanaben. As there was no consent of husband, said doctor also did not agree for abortion. Thereafter, the respondent Nos. 2 to 5 went to Dr.Bhardwaj Joshi, who terminated the pregnancy of respondent No. 2. On 26-12-2002, the respondent No. 2 went to the petitioner and told that she did abortion through Dr. Vandana Patel of Kalpana Clinic. The said complaint was registered as Criminal Inquiry No. 40 of 2003. After verification of the complainant, the learned Chief Judicial Magistrate passed an order u/s 202 of Cr.P.C. directing the Police Inspector, J.P. Police Station to report within 60 days. On inquiry, the police submitted a report stating that no offence was committed and hence, an order dated 8-2-2006 was passed by the learned Magistrate dismissing the complaint by holding that consent of the husband is not required as per Medical Termination of Pregnancy Act, 1971 (''the Act'' for short). Revision being Criminal Revision Application No. 65 of 2006 preferred before the Sessions Court was also rejected by the learned Sessions Judge vide order dated 27-7-2007. Hence, the present petition.

Heard learned advocate, Mr. Abhiraj Retrieved for Asim J. Pandya for the petitioner, Mr.L.R.Pujari, learned APP for the respondent No. 1-State and learned advocate, Mr.U.I.Vyas for the respondent Nos. 2 to 6.

It is submitted by learned advocate for the petitioner that the impugned orders are without appreciating the facts and settled legal position. It is further submitted that both the courts below committed an error in holding that consent of husband is not required for termination of pregnancy of wife. It is further submitted that provisions of Section 3 of the Act have been misinterpreted by both the courts below to construe that consent of husband is not required for terminating the pregnancy of wife. It is therefore submitted that both the courts below have committed an error in dismissing the complaint and hence, it is requested that both the orders be quashed and set aside and this petition be allowed.

Learned advocate, Mr.U.I. Vyas, for the respondent Nos. 2 to 6, on the other hand, has submitted that both the courts below have come to the conclusion that there is no prima facie case against the respondent Nos. 2 to 6 and hence, complaint filed by the petitioner was dismissed. According to him, there is no illegality in the said findings and hence, it is requested that orders of both the courts below are not required to be interfered with.

This Court has gone through the complaint together with the impugned orders of both the courts below. This Court has also gone through the provisions of the Act. It appears that the learned Chief Judicial Magistrate by detailed reasons dismissed the complaint filed by the complainant. Said order has been confirmed by the learned Sessions Judge, Vadodara, by elaborate reasons. It was held by the learned Sessions Judge that provisions of Sub-Section (4) of Section 3 of the Act makes it mandatory to obtain consent of the pregnant woman in terminating the pregnancy but the court did not find it mandatory to accept the consent of husband. It was also held by the learned Sessions Judge that when there are two children out of the wedlock and wife and husband are not in goods terms since long, wife would not be compelled by the doctor to obtain consent of the husband. The findings appear to be just, legal and proper and no illegality or irregularity has been committed by both the courts below in arriving at the said findings. In view of the above, this petition does not have any merit and is hereby dismissed. Rule is discharged.