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Judgment
Nirzar S. Desai, J
Heard learned advocate Mr.Radhesh Vyas for the petitioner and Mr.J.K.Shah, learned Additional Public Prosecutor for the respondent State.
This Court, on 13.11.2020, had passed an order, relevant paras of which, more particularly paras: 5, 6, 9 and 10 read as under:
“5. Under such circumstances, this Court is of the opinion that a specific opinion on both the aspects referred to hereinabove, is required, both in
the interest of the victim child as well as in the interest of unborn fetus.
In view of the same, this Court considers it appropriate to direct the Medical Superintendent, Civil Hospital, Asarwa, Ahmedabad to constitute a
team of not less than 3 experts from the Department of Obstetrics & Gynaecology who would examine the victim child on 17.11.2020 and give a
specific opinion on the two aspects mentioned hereinabove. Furthermore, the Medical Superintendent, Civil Hospital, Asarwa, Ahmedabad is also
directed to constitute a team of not less than 2 experts from the Department of Psychiatry who would interact with the victim and give an opinion
about the psychological status of the victim as regards the prayer made in the Petition for termination of pregnancy. The experts from the Department
of Psychiatry would also submit their Report along with Report of the team of experts from the Department of Obstetrics & Gynaecology. Such
Reports shall be made available to this Court on or before 19.11.2020.
… xxx
…. xxx
The Medical Superintendent, Civil Hospital, Asarwa, Ahmedabad is further directed to also have the victim child examined with regard to her health
and provide all medical facilities to the victim child during her period of examination and necessary medicines, etc., also may be provided to the victim
child.
Let this mater be listed on 19.11.2020, looking to the urgency involved in the present case. The Registry is directed to place this matter before the
coordinate bench taking up such cases during Diwali holidays subject to the convenience of coordinate bench.â€
Pursuant to the order dated 13.11.2020, two separate teams of expert doctors from Civil Hospital, Ahmedabad examined the victim on 17.11.2020
and submitted two separate reports i.e. (i) the report submitted by the team of experts from the department of Obstetrics & Gynecology reads as
under.
(For the sake of hiding the identity of victim, in both the reports the name of the victim is replaced as “Ms.Iâ€).
“ Deptt. OBGY
BJ Medical College & Civil Hospital
Ahmedabad
Dt.18-11.2020
To,
The Medical Superintendent,
Civil Hospital,
Ahmedabad.
Subject: Regarding second opinion as per R/Special Criminal Application No.6577 of / 2020
Ref: Letter No.CHA/ RMO / 3519/2002 dated 14/11/2020
Resp sir
As per above referred letter a panel of three Gynecologists has examined the said victim child brought to us on 17-11-2020.
The panel members included the following:
Dr.Mahima Jain â€" Prof & Head of Unit
 Dr.Tejal Patel â€" Assoc. Prof. & Head of Unit
Dr.S Toshniwal â€" Asst. Prof. OBGY
After thorough history taking, examination and further investigations the following opinion is compiled:
As per her history and clinical examination she is having approximately 30 weeks pregnancy which corresponds to 7 months and under
MTP Act this advanced pregnancy cannot be terminated as per law.
As per Consultant Radiologist her Ultrasonography report done on 17-11-2020 shows the pregnancy to be approximately 28 weeks with
expected fetal weight 1239 grams.
Further on investigations she is found to have moderate anaemia which is a medical complication affecting pregnancy which needs to be
treated to prevent maternal morbidity and mortality.
This treatment can be availed in the nearest District hospital or Medical College Hospital for comfort of her and her family.
Physician reference is done regarding her medical fitness since she is having moderate anemia who asked to evaluate further by ECG &
2D Echo which came normal, correction of anaemia is advised by them which can be given at any nearest hospital as advised.
Psychiatrist reference is done regarding her psychological status, whose opinion is forwarded separately.
Neonatologist opinion taken as regards to survivability and fetal outcome at this stage of pregnancy, the baby would be fragile at this
gestational age and there is high risk of neonatal morbidity and mortality.
Hence it can be concluded that termination of pregnancy is not advisable at this gestational age.â€
 Sd/- Dr.Mahima Jain              Sd/- Dr.Tejal Patel
                                          Sd/- Dr. S Toshniwalâ€
Another report dated 18.11.2020 submitted by a team of experts consisting of two expert doctors from the department of Psychiatric, which reads as
under:
“To,
RMO
Civil Hospital,
Ahmedabad.
Subject: Giving opinion about mental status of the victim
Reference: R/SPECIAL CRIMINAL APPLICATION NO.6577 OF 2020
-Honourable Gujarat High Court oral order dated 13/11/2020
As per the above mentioned subject and reference, we, Dr.Mehul J. Brahmbhatt and Dr.Pragna M Sorani both have examined the patient
‘Ms.I’ age 14 years / Female, having 30 weeks of pregnancy. At present not having any psychiatric symptoms. Her current mental
status examination reveals no major mood, thought or perceptual abnormalities. Her general intelligence seems of below average. Her
current mental status is stable.
On her test for intelligence, on Bhatia battery her IQ is (65-69), suggesting mild intellectual disability.
On social maturity scale suggest age level 11 years
Looking into her condition, she cannot independently take care of the child. She might need some extra help from her parents or other
sources for rearing the child, especially if the child has some congenital defect or is not an average normal child.
Sd/-Dr.Mehul J Brahmbhatt â€
Sd/- Dr.Pragna Soraniâ€
In nutshell, to put it in the simple words, the report from the team of experts from Obstetrics & Gynecology department states, in no uncertain terms
that, it is not advisable to carry out termination of pregnancy at this gestational age. As regard opinion of experts from the department of Psychiatric is
concerned, it is opined that on social maturity scale the age of the victim is of 11 years.
These two reports from the experts of their respective departments, in substance, rule out the possibility of termination of pregnancy considering the
advance stage of pregnancy and the report of teams of experts of Psychiatric suggests that victim might need some extra help from her parents or
other sources for rearing the child. Therefore, this Court is of the view that no question arises to carry out any immediate surgical intervention to
terminate the pregnancy of the victim, contrary to the medical opinion of two teams of experts Gynecologists from SSG Hospital and Civil Hospital,
Ahmedabad and the opinion of team of experts of Psychiatric, Civil Hospital, Ahmedabad, which may result into termination of pregnancy.
These two reports dated 18.11.2020 submitted by the experts pursuant to the order dated 13.11.2020 are shared with the learned advocate for the
petitioner by the learned Additional Public Prosecutor and on having received the same, learned advocate for the petitioner Mr.Vyas submits, on the
basis of reports, that he wants to take instructions from his client and wants to have discussion with the victim girl. He also points out that under
similar circumstances, though the medical opinion was otherwise, the Hon’ble Bombay High Court had taken the view that if the mother and
victim are willing to terminate the pregnancy, knowing fully well about the risk factor involved, such termination of pregnancy can be permitted by the
Court in the interest of future of the victim girl and considering her tender age. However, Mr.Vyas does not have that judgment available with him at
this moment.
As against that, Mr.J.K.Shah, learned Additional Public Prosecutor has submitted that even if the directions permitting the termination of pregnancy
are issued by the Court, he is not against the same. However, what is paramount is the interest of the victim as well as the child that may be delivered
by the victim, in case if the termination of pregnancy is not permitted by this Court. Mr.Shah, learned APP has further submitted that in the event if
the termination of pregnancy is not possible as per medical opinion, and in case if termination of pregnancy does not take place, there are clear
guidelines issued by this Court in a petition having similar set of facts. He pointed out the judgment of this Court rendered in Special Criminal
Application (Direction) No.585 of 2018 dated 30.01.2018, whereby based on medical opinion of experts though the permission for termination of
pregnancy was declined, certain directions in respect of victim as well as child that may be delivered by the victim were issued. Mr.Shah, learned
APP emphasized that if similar directions to the directions as contained in paras:30 and 31 of the said judgment are issued, it will serve the purpose to
meet with the ends of justice.
At this stage, learned advocate Mr.Vyas appearing for the petitioner submitted that he will go through both the reports of teams of medical experts
dated 18.11.2020, which are reproduced in forgoing paras, as well as both the judgments pointed out by him as well as by the learned APP Mr.Shah
and will discuss at length with his client and the victim girl all the consequences that may take place and if requires, he will file affidavit before the
Registry of this Court latest by 23.11.2020 putting forward his stand on the basis of aforesaaid discussion with the petitioner and the victim girl.
Accordingly, let the matter to come up on 24.11.2020. Mr.Vyas, learned advocate, if intends to file any affidavit, the same shall be filed latest by
23.11.2020, with the copy to the other side. List the matter on 24.11.2020.