Madhuben Arvindbhai Nimavat Vs. State [Gujarat High Court, 08-06-2016]

Medical Termination of Pregnancy Act, 1971 – Indian Penal Code, 1860 – Section 376 – Rape – victim girl is very young – ‘best interest’ theory – Whether termination of pregnancy be permitted as requested for as the girl is only 14 years of age, having hemoglobin level of 6.5% only and when she is carrying pregnancy of 22 weeks presently – Held, Her trauma, mental agony and possibilities of social ostracism needs to be kept in view – In the present set of circumstances, on careful inquiry of the medical opinion on continuing feasibility of continuing pregnancy as well as social circumstances faced by the victim, the Court’s decision has to be guided by the best interest of the victim alone and not of the stakeholders not of the guardian also.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

Date : 08/06/2016

SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 3679 of 2016

MADHUBEN ARVINDBHAI NIMAVAT (MINOR) THRO’ ARVINDBHAI NAROTTAMBHAI NIMAVAT….Applicant(s)

Versus

STATE OF GUJARAT & 2….Respondent(s)

Appearance: MR JIGNESH L HAJARE, ADVOCATE for the Applicant(s) No. 1 MR RONAK RAVAL, APP for the Respondent(s) No. 1

ORAL ORDER

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 offence punishable under

# Section 376 of the Indian Penal Code.

2. Following are the prayers sought for by the present petitioner in terms of Paragraph 7 of the petition, which are reproduced hereunder: –

“(a) Your Lordships may be pleased to admit this Special Criminal Application.

(b) Your Lordships may be pleased to allow this Special Criminal Application by issuing appropriate Writ or order or direction to the respondent authority to terminate the pregnancy of victim Madhu who is minor daughter of petitioner, at the earliest, as the continuance of pregnancy would cause grave injury to the victim minor girl Madhu in the large interest of justice.

(c) Pending admission hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent no.1 to 3 to conduct medical termination of pregnancy of the minor victim Madhu who is the daughter of the petitioner with two qualified surgeons including Gynecologist, Obstetrician and in presence of qualified physician with duo care and precaution, so as to avoid any likelihood of untoward harm to the physical or mental health of the minor victim Madhu, after carrying out necessary medical check-up in the interest of justice.

(d) Your Lordship may be pleased to grant such other and further relief(s) as deemed fit, just and proper in the interest of justice.”

3. An application was given to the learned Sessions Judge in relation to the said I-CR No.51 of 2016 seeking termination of pregnancy on 24.5.2016. It was urged that she is having pregnancy of 18 months and as per the Medical Rules, upto 20 weeks, she can be permitted to terminate the pregnancy.

4. Sessions Court rejected such request relying on the provisions of

# Medical Termination of Pregnancy Act, 1971

(“MTP Act” for short). It also appears that the Court had called the Assistant Professor (Ob & Gy) Government Medical College, Rajkot personally and he was also asked to give exact opinion in respect of the length of pregnancy. In continuation of his earlier opinion, he has examined the victim carefully and opined that he was unsure whether pregnancy exceeds 20 weeks.

5. Both the sides have been heard at length.

6. In the present petition, learned advocate Mr. Jignesh Hajare appearing of the petitioner has relied upon the plethora of judgments, wherein the Court has permitted to terminate the pregnancy beyond stipulated period of 20 weeks on the grounds mentioned in the Statutes itself. The victim – girl is very young to continue with her pregnancy and she has extremely low blood pressure and haemoglobin level is 6.5 as per the latest medical report. Therefore, he has urged that termination of pregnancy be permitted with a further request that Doctors shall take necessary tissues from the fetus by following scientific practice prescribed by the Standard Medical Practice for DNA identification.

7. Learned APP Mr. Ronak Raval has also relied upon some of the judgments delivered by this Court and submitted that the Court may direct for termination of pregnancy, if deems fit, considering the mental health and overall picture.

8. A short question that arises in this petition is as to whether termination of pregnancy be permitted as requested for as the girl is only 14 years of age, having hemoglobin level of 6.5% only and when she is carrying pregnancy of 22 weeks presently.

9. This Court, in case of Chandrakant Jayantilal Suthar v. State of Gujarat, reported in Special Criminal Application No.4255 of 2015 dealt with the law on the subject extensively and denied the permission this wise;

42. There is also the issue of the child that is yet to be born. Whatever be the circumstances in which the child was conceived, whatever the trauma of the young mother, the fact remains that the child is also not to blame for being conceived. It did not ask to be born. When the child is born it should not be abandoned or neglected. Proper provisions are required to be made for its welfare, education and upbringing. The child is innocent, just like the victim, its mother.

43. The Court is fully aware of the hard realities of life that the victim is facing and would face, in future. The trauma, mental agony and fear of social ostracism can take a toll of any person, what to speak of an innocent fourteen- year old girl. As stated hereinabove, there is no other legal option but for her to go through with the pregnancy, which is over twenty-four weeks in length.

44. In giving birth to the child, the victim and her parents are required to be given full assistance and co-operation by the Government authorities, at every level. To this end, this Court considers it appropriate to issue the following directions:-

1) The Collector, Sabarkantha, shall ensure that arrangements are made to provide proper diet, medical supervision and medicines as may be necessary, to the victim throughout the duration of her pregnancy. When the time for delivery arrives, proper medical facilities be made available to effect a safe delivery.

2) Though the studies of the victim are bound to be interrupted for some time, however, the Collector, Sabarkantha, shall try to ensure that she continues her studies even after the birth of the child, maybe as a private student, if it is not possible for her to study as a regular student for some time.

3) The Collector, Sabarkantha, shall ensure that the child, when born, is not abandoned or neglected. He should also keep a watch to ensure that no harm comes to the child. If the victim and her parents so permit, efforts can be made for the child to be adopted in case the victim does not want to, or is unable to, bear the burden of its upbringing. The services of a reputed NGO can be availed of in this regard.

4) In addition to the amount of Rs.25,000/- ordered to be given to the victim by the Sessions Court as interim compensation, the State Government shall pay her an amount of Rs.1,00,000/-.

5) The court is informed that Dr.Jatinbhai K. Mehta, the accused in connection with the FIR, being I-C.R.No.060/2015, registered with the Talod Police Station, District: Sabrakantha, has been arrested. If not, steps be taken to arrest him. The District Superintendent of Police, Sabarkantha, shall supervise the investigation of the case and ensure that it is completed expeditiously.

6) A copy of this order, along with the details of the accused Dr.Jatinbhai K. Mehta, be sent to the Medical Council of India for information and further necessary action, as required.

The said order was challenged before the Apex Court and the Apex Court overruled the order as reported in 2015 (8) SCC 721. Relevant paragraphs are reproduced hereunder:

“3. Looking at the peculiar facts of the case, we direct that Ms. Maitri Chandrakant Suthar shall be examined by three seniormost available Gynecologists of Civil hospital, Ahmedabad at Asarwa, alongwith Dr. Riddhi Ketan Shukla, who had examined Ms. Maitri on 25.7.2015 and also by a clinical Psychologist attached to the Civil Hospital. The aforestated team of Doctors shall examine Ms. Maitri and after having an interaction with her, shall decide whether there is a serious threat to her life, if the child is not aborted.

4. If the team of the aforestated doctors is of the view of that termination of the pregnancy is immediately necessary to save the life of Ms. Maitri, the doctor concerned of the Civil Hospital shall perform necessary surgery, if the petitioner and Ms.Maitri desire to go through to such abortion, without taking any permission from this Court. If there is unanimity among the doctors, majority view of the doctors shall prevail.

5. In case of abortion, the hospital authorities shall take necessary tissue from the foetus for DNA identification.

6. Intimation of this order shall be sent to the Medical Superintendent of Civil Hospital, Ahmedabad at Asarwa, forthwith by the Registry. The learned counsel appearing for the State shall also give intimation of this order to the Superintendent of Civil Hospital, Ahmedabad., that if Ms.Maitri approaches Civil Hospital on 29.7.2015, necessary arrangements for her stay as an indoor patient shall be made by him so that on 30.7.2015 around 11.00 a.m. or at the time suitable to the aforestated doctors, she can be examined.

7. Intimation of this order shall also be given to Dr.Riddhi Ketan Shukla by the learned counsel for the petitioner. If, for any reason, Dr. Riddhi Ketan Shukla cannot remain present, the remaining four doctors shall examine Ms. Maitri and act as per this order.”

10. This Court in case of Bhavikaben d/o Rameshbhai Solanki v. State of Gujarat in Special Criminal Application (Direction) No.1155 of 2016 while dealing with the case of a rape victim who had made a request for termination of pregnancy considering the decision rendered in the case of Chandrakant Jayantilal Suthar v. State of Gujarat, (Supra) and on discussing the provisions of Medical Termination of Pregnancy Act, 1971, the pregnancy was permitted to be terminated. It would be appropriate to reproduce relevant paragraphs which reads as under: –

“Before adverting to the facts in the instant case, provisions of MTP Act, particularly Section 3 requires reproduction –

# 3. 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 the 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 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 1 – 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 grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman’s actual or reasonable foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

This Act permits termination of pregnancy where the length of pregnancy does not exceed twelve weeks or where such length of pregnancy exceeds twelve weeks but does not exceed twenty weeks, if in the opinion of two registered medical practitioners, in cases of sub section [2](b) of Section 3, continuance of pregnancy would involve a risk to the life of a pregnant woman or of grave injury to her physical or mental health, or there is a substantial risk that if a child were born,it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation provides 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. Pregnancy thus can be terminated by registered medical practitioner where it is not of more than twelve weeks. If it is of more than twelve weeks, but less than twenty weeks, two medical practitioners need to opine that continuance of pregnancy would involve a risk to the life of pregnancy woman or that it may cause grave injury to her physical or mental health. Likewise, physical or mental abnormalities of a child to be born is also one of the grounds for medical practitioners to terminate the pregnancy. Further, no pregnancy of any woman who has not attained the age of 18 years, or who having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

The Apex Court in case of Chandrakant Jayantilal Suthar & Anr. v. State of Gujarat [Supra] had left it to the discretion of the medical practitioners, considering the peculiar facts, who were to decide after interaction with the victim, as termination of pregnancy was immediately necessary to save life of the victim herself, it did not want the Doctors to wait for the permission of the Court, if there was a unanimity amongst the doctors; otherwise directed the majority view to prevail. While so doing, the Court directed the Hospital authorities to take necessary tissue from the fetus for DNA identification.

In case of

# Suchita Srivastava & Anr. vs. Chandigarh Administration, reported in 2009 (3) GLH 468

the Apex Court has laid down the theory of best interest test to hold that the Court is required to ascertain the course of action which would serve the best interests of the person in question. The Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. The Court’s decision should be guided by the interest of the victim alone and not those of stakeholders such as guardians or society in general. Apt it would be, to reproduce the observations made in para 19 of the decision, which reads thus –

19. As evident from its literal description, the ‘Best interests’ test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the excise of reproductive rights.

Bearing in mind the decision of the Apex Court and keeping the ‘Best interests’ test as the parameter, in the opinion of this Court, in the present set of circumstances, careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim, if are considered, this Court is of the opinion that termination of pregnancy requires to be permitted, which is in the best interest of the victim.

It is to be noted that the team of Doctors have on 18 th February 2016 submitted report and opined, thus –

After reviewing history and detailed examination, blood reports and sonography done at Civil Hospital, Sola, our opinion is as follow :

– Psychiatric evaluation suggest patient is not suffering from any psychiatric disorder and patient is psychiatrically fit. Considering involuntary pregnancy and unwillingness of victim to continue pregnancy her mental trauma may increase if pregnancy continues.

– Anesthetic evaluation suggest that slightly more risk of anesthesia if pregnancy will terminated at present.

– Medical and surgical evaluation suggest that if proper nutrition and care is maintained through feeding jejunostomy, there is no physical harm in continuation of pregnancy or termination of pregnancy at present.

– There is same or slight increase risk to victim if pregnancy is terminated before term than physiological normal delivery at term.

– As per MTP Act, termination of pregnancy can be done up to 20 week of pregnancy. At present, patient had 24 week live pregnancy.

• If the child will born at present, the chances of survival of new born is very less due to extreme prematurity. But, if it delivers at term there will not increase chance of physical or mental abnormalities or seriously handicapped. Considering all experts opinion continuation of pregnancy will adversely affect her mental status but will not affect her physical status.”

Professor & Head, OBGY Department, GMERS Medical College, Sola, Ahmedabad has opined, thus –

(1) Pregnancy at present is 24 weeks. As per MTP law, MTP can be carried out only till 20 weeks in said case.

2. However termination can be carried out, if permitted by the Court order in extreme situation considering increased risk of termination at this gestational age in the said situation. As per the opinion of Pediatrician, the child born at this age is not likely to survive due to extreme prematurity.

If the opinion of the team of Doctors is taken into consideration, it could be noticed that her mental status will adversely be affected, if pregnancy continues. She, therefore, falls under the criteria set out in the MTP Act. This continuance of pregnancy since involves grave injury to her mental health as her pregnancy being the result of rape, the anguish caused also is to be constituted as a grave injury to the mental health of the victim, and therefore also, termination of pregnancy is permitted.

This Court had noticed, before referring the victim to the team of medical experts, that she is being fed through Rielis tube and except liquid naturally nothing could be provided. Her frail physical and mental health is on account of trauma of rape she underwent and it appears almost an impossibility for her to look after herself. She also attempted suicide when humiliated by the accused. All these factual circumstances that emerge on record, particularly very young age of the petitioner leads this Court to conclude in favour of grant of her request. Delay in approaching this Court has placed statutory constraints which is because of various grounds narrated chief amongst the same is her poor health and poverty stricken condition of parents. However, when medical opinion does not indicate this act of termination to risk her life, following the best interest test, request warrants to be acceded to.

Therefore, it is being directed that with best medical facilities available and on ensuring the proper care and supervision, termination of pregnancy shall be carried out. Doctors shall take necessary tissue from the fetus for DNA identification by following scientific practice prescribed by the Standard Medical Practice for DNA identification.

Intimation of this order shall be sent to the Medical Superintendent, Sola Civil Hospital, Ahmedabad forthwith by the registry and a copy of this order shall also be sent to the learned PP for onward communication.

Learned advocate for the petitioner shall also be provided a copy of this Order for follow up action.

Let the Medical Superintendent, GMERS Medical College & Hospital, Sola, Ahmedabad apprise this Court, the well being of the victim and for that purpose alone, this matter is listed on 24th February 2016. Direct service to be made forthwith.”

11. This Court, in case of Poojaben Vershibhai Charla (Minor) through Vershibhai @ Varsingh Govindbhai Charla v. State of Gujarat in Special Criminal Application (Direction) No.1681 of 2016 has also dealt with the similar issue and also took note of the decision in the case of

# Suchita Srivastava v. Chandiagarh Administration, reported in 2009 (3) GLH, 468

and keeping parameters of `Best Interest Test’, permitted termination after seeking medical opinion.

12. In the matter on hand, this Court shall have to consider the course of action bearing in mind the ‘best interest’ theory victim girl is very young. Her trauma, mental agony and possibilities of social ostracism needs to be kept in view. In the present set of circumstances, on careful inquiry of the medical opinion on continuing feasibility of continuing pregnancy as well as social circumstances faced by the victim, the Court’s decision has to be guided by the best interest of the victim alone and not of the stakeholders not of the guardian also.

13. At this stage, the certificate issued by the Associate Professor of Department of Obstetrics and Gynecology, PDU, Government Medical College, Rajkot, is reproduced hereunder: –

CERTIFICATE

“This is to certify that with reference to Honorable High Court order dated 2.6.2016 and received on 6.6.2016, patient Madhuben Nimaval, age 14 years was admitted in PDU Medical College, with case No.9311 and examined by panel of Doctors Dr. Kavita Duhereji (Incharge Head of Department, OBGY, PDUMC, RAJKOT), Dr. Nirav Garala (Assistant Professor, Radiologist Dr. Maulik (Assistant Professor) and physician Dr. Hiren Makwana from the examination, it was determined that patient has severe anemia (HB 6.5 gm) and pregnancy with period of Gestation 22 weeks and 3 days. As per MTP Act termination can be done upto 20 weeks. Order from Hon’ble Court and after correction of Anemia with due risk of the procedure.”

Dated: 7.6.2016.

Sd/-

Associate Professor,  Department of Department of Obstetrics and Gynecology, PDU, Government Medical College, Rajkot

14. It can be noticed that patient has severe anemia with 6.5% haemoglobin as mentioned hereinabove and the pregnancy of 22 weeks and 3 days as on 7.6.2016. The Medical opinion suggests that termination can be carried out with the order of the Court and after correction of anemia with due risk of the procedure.

15. Since the request is made by the petitioner herself with the consent of the parents, bearing in mind, her very young age and incident of rape with pregnancy, grave injury to her mental health is to be presumed. Her fragile health and poor haemoglobin level requires that the team of the Doctors needs to examine her once again and also ensure her safety as this Court is of the opinion that it would be in the best interest of the victim to permit the termination of pregnancy, if otherwise, there is unanimity amongst the Doctors to the effect that such termination would be carried out safely.

16. Let the Senior Expert Doctor interacting with the prosecutrix – petitioner and her parents and without further reference to this Court, take a decision bearing in mind the ‘best interest principle’ and terminate her pregnancy as soon as possible.

17. The outcome and well being of the petitioner shall be reported to this Court within one week. The concerned Doctors shall examine the level of haemoglobin and carry out all other necessary tests before proceeding to terminate the pregnancy. Once termination is over, the petitioner – minor shall continue to receive treatment for the length of period deemed necessary by the Senior Most Doctor of the team.

18. Medical Superintendent, PDU Civil Hospital, Rajkot shall hand over, in scientific manner, the tissues drawn from the foetus for DNA identification to the Police Inspector, Mahila Police Station, Rajkot for onward transmission of the same to the concerned Forensic Science Laboratory.

19. A copy of this order shall be provided to the learned APP for onward communication.

20. With the above direction, this petition stands disposed of accordingly.

Direct Service, today, is permitted.

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