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 –