R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5686 of 2025 ========================================================== A B C (MINOR VICTIM) THROUGH SURAJKUMAR RAMSARAN MANDAL Versus STATE OF GUJARAT & ORS. ========================================================== Appearance: MS POONAM M MAHETA(11265) for the Applicant(s) No. 1 DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3 MR SOHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 23/04/2025 ORAL ORDER 1. The father of the victim has approached this Court seeking following relief:- “The Hon'ble Court may be pleased to issue appropriate writ or order or direction to the respondent authority to terminate the pregnancy of the victim who is aged 14 years and 7 months and is carrying a pregnancy of 26 weeks and 1 day, at the earliest, as the same being in the best interest of the victim, considering her physical health and incident of rape causing grave injury to her mental health and further be pleased to direct the respondent no. 3 to hand over, in scientific manner, the tissues drawn from the fetus for DNA identification to the Police Inspector, Dungra Police Station, Valsad District for onward transmission of the same to the concerned FSL, interest of juistice.” 2. Since minor is the victim of sexual abuse, her identity has not been disclosed in this order and she has been referred to as the 'minor’ or the ‘victim' in the entire order. Page 1 of 10 R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 3. The facts taken out from the petition, are as under:- 3.1 The present complaint is lodged by the mother of the victim. It is submitted that on 12.04.2025, while the complainant was present along with her husband (father of the victim) and the victim, the victim disclosed that their neighbour, one Mr. Rameshbhai Prajapati, had been conversing with her and had repeatedly called her to meet him in the room where he resided. 3.2. It is further stated that on 25.10.2024, at around 1:00 PM, the accused called the victim to meet him, expressed his love for her, and thereafter, forcibly established physical relations with her against her will. Subsequent to this incident, the accused continued to call the victim on multiple occasions and, on each such occasion, forcibly engaged in physical relations with her without her consent. 3.3. It is further alleged that on 02.04.2025, the accused once again called the victim and forcefully engaged in physical relation with her. Thereafter, on 12.04.2025, the complainant observed swelling in the victim's abdomen and, suspecting pregnancy, the victim underwent a medical test which confirmed that she was six months pregnant. 3.4 It is submitted that the victim did not disclose the said incidents earlier due to fear of social stigma and family honour. Owing to these circumstances, the complaint could not be filed immediately. However, upon learning of the pregnancy and the repeated acts committed by the accused, the complainant has R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 now approached the authorities and lodged the present complaint at this belated stage. 3.5 That the petitioner submits that on 12.04.2025, an FIR came to be lodged by the mother of the victim before Dungra Police Station, Valsad being FIR No. 11200051250705 of 2025 for the offence u/s. 64(2) M, 65(1), of Bharatiya Nyaya Sanhita of 2023 and 5(j-ii), 5(L), 6 of The Protection of Children from Sexual Offences (POCSO) Act, 2012. 4. On 21.4.2025, this court has passed following order:- By way of instant petition under Article 226 of the Constitution of India, the petitioner, who is father of victim girl, has prayed for direction upon the respondent authority for termination of the pregnancy of his daughter aged about 14 years and 07 months. Learned advocate submitted that the daughter of the petitioner is a victim of rape, for which, an FIR being C.R. No.11200051250705 registered with Dungra Police Station, Valsad for the offence punishable under Sections 64(2)M and 65(1) of the BNS, 2023 and Sections 5(j-ii), 5(L) and 6 of the POCSO Act. He submitted that because of the act committed by the accused, the daughter of the petitioner got pregnant and having pregnancy of 26 weeks and 1 day as on 14.04.2025. Learned APP, after taking instructions, submitted that in this type of case the facility is available before the respondent no.3 and if the victim approaches to the said hospital, she will be examined there accordingly. In view of the aforesaid, issue Notice upon the respondents returnable on 22.04.2025. Learned APP waives service of notice for respondent – State of Gujarat. In the meantime, the petitioner shall go to GMERS MedicalCollege and Civil Hospital, Civil Hospital Campus at Valsad today itself i.e. on 21.04.2025 between 05:00 p.m. and 07:00 p.m. along with three persons, which may include parents of the victim for medical examination. The Medical Officer/ Medical Superintendent is hereby directed to examine R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 the victim for termination of pregnancy of victim and about the risk factor. Moreover, Doctors shall mention the stage and medical position of the victim girl and shall clarify as to whether termination of pregnancy of victim girl could be performed or not with detailed reasons. The Medical Officer shall report to this Court about the above respect through learned APP on or before 22.04.2025. The Medical Officer shall examine the victim and in turn, shall intimate in detail about the condition and stage of pregnancy with the opinion regarding the termination of pregnancy of victim girl to the learned APP. The learned APP shall in turn apprise the Court about the same. Learned APP is directed to intimate the concerned doctors in this regard along with this order. Learned advocate for the petitioner is directed to send copy of this order to the concerned authorities including the doctors and the police authority. Registry to provide a copy of this order to the learned advocate for the petitioner as well as learned Additional Public Prosecutor for onward communication. Registry is also directed to communicate this order to the respondent no.3 by fax for necessary steps. Direct service is permitted today.” 5. Learned advocate Ms. Poonam Mehta for the victim, after reiterating the fact of the case would submit that the minor is the victim of sexual abuse, she is the victim of alleged offence of rape registered with Dungra Police Station, Valsad. It is further submitted that the minor has developed pregnancy of 26 weeks as on 14.4.2025. It is painfully submitted that she was sexually abused by the accused Ramesh Prajapati. It is further submitted that because of the sexual abuse, the minor has become pregnant and continuance of pregnancy would defame her in the society. It is also submitted that the minor would not be in a position to maintain the child as her mental and physical conditions are too feeble and weak and she is not fit either physically or mentally due to the incident in question. She is in R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 trauma being result of the incident. It is also stated that considering the immature age of the minor, it is neither possible nor permissible to nurture and maintain the child and also considering that such aspect will tarnish the image and reputation in the society, it is urged to permit to terminate her pregnancy in accordance with law. 6. The parents of the victim have filed consent letters annexed at Annexure F colly stating that it would be in the best interest of the victim to undergo termination of the pregnancy. 7. Section 3 of the Medical Termination of Pregnancy Act, 1971 (in short “the Act”) reads as under:- “SECTION 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, of opinion, formed in good faith, that- (i) the continuance of the pregnancy would involve a risk to the 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 a grave injury to the mental health of the pregnant woman. Explanation 2. Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 husband for the purpose of limiting the number of children the anguish caused by such unwanted pregnancy may be presumed to constitute a 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 subsection (2), account may be taken of the pregnant woman's actual or reasonably 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.” 8. Before proceeding further to decision on issue, let refer opinion of the medical experts, which reads as under:- “Continuation of pregnancy of this victim to full term is associated with risk of physical, emotional and mental wellbeing compromization.” 9. This Court in the case of Suchita Srivastava vs. Chandigarh Administration reported in 2009 (3) GLH 468 in paragraph no. 19 observed 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 exercise of reproductive rights.'' 10. This Court in the case of Bhavikaben vs. State of Gujarat reported in 2016 (3) RCR(Cri) 362 while deciding a similar issue has observed thus- ''16... If the opinion of the team of Doctors is taken into consideration, it could be noticed that her mental status will R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 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 beconstituted as a grave injury to the mental health of the victim, and therefore also, termination of pregnancy is permitted.” 11. Explanation to the statutory provision u/s 3(2) of the Act spells 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. 12. In the facts and circumstances of the case on hand, this court finds that the right of bodily integrity calls for a permission to allow her to terminate her pregnancy. The opinion of the Doctors clearly warrant the inference that the continuance of the pregnancy involves the risk of a possible grave injury to her mental health as required by Section 3 (2)(i) of the Act. Section 5 of the Act permits termination of pregnancy beyond 20 weeks. The courts have expansively interpreting section 5 of the Act, to permit termination of pregnancy beyond 20 weeks, in circumstances where it is considered imperative to save life of the victim. Rule 3(b) of Medical Termination Pregnancy Rules, 2023 may also be pressed into service. One should not forget that the victim is minor. The Medical Board has opined that the victim is mentally and physically fit to undergo termination of the pregnancy and it will be safe to perform the termination. In these circumstances, it would be poignant to continue with the pregnancy for the minor, which is involuntary in nature. The unwillingness of parents and minor to continue the pregnancy is R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 explicit and expected trauma both physical and mental shall be increased if such pregnancy is allowed to continue and may cause major risk to the body of the minor. In fact, it is her right to terminate the unwanted pregnancy. Therefore, it would be just and proper to permit termination of the pregnancy under the provisions of the Act. 13. At this stage, the Court has considered the decision wherein ‘the best interest’ theory for the victim girl is settled and considering her trauma, mental agony and possibility of social ostracism, the Court is of opinion that when the medical opinion given by the Panel of Doctors is taken into consideration, let termination of pregnancy be carried out at the earliest with medical facilities available to the victim girl and on ensuring proper care in pre-termination and post termination period. 14. In report, it is submitted that the fetus if delivered at this stage, is likely to be alive and viable. The baby has a fair chance of survival if given optimum care. The pregnancy is at advanced stage of 26 weeks. There is unborn child, whose chance of surviving is fairly good. The MTP Amendment Bill permitted to terminate pregnancy upto 24 weeks for vulnerable woman. But, in the present case, the victim is aged about 14 years old. It is stated that the victim has been sexually assaulted by her neighbour. Since the family of the victim is coming from backward area, her parents were never knowing about the pregnancy as well as reaching of the pregnancy at advanced stage. There is risk, but in view of the report by the Medical Board and more particularly, considering emotional and social R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 trauma associated with the victim, which is 14 years old, continuation of pregnancy is more problematic than terminating it. 15. For the foregoing reasons, this petition is allowed in terms of permitting termination of the pregnancy of the minor to be carried out by the concerned Civil Hospital at the earliest with medical facilities available to the victim girl and on ensuring proper care in pre-termination and post termination period. Since present victim is having more than 26 weeks pregnancy as of now, this court directs three senior most Gynecologists of concerned Civil Hospital to examine the victim girl with psychologist attached to the Hospital. The said team of Doctors shall examine the victim and after having interaction with her, undertake the procedure of surgery on urgent basis along with other required expert Doctors like Physician, Anesthetic etc. The Doctors performing termination procedure shall take necessary tissue from the fetus for DNA identification in scientific manner and shall hand it over to the Investigating Officer concerned for onward transmission of the same to the concerned FSL for analysis. If post termination of pregnancy, the victim requires to take treatment, the concerned Civil Hospital is directed to provide all necessary treatment and facility. Necessary permission shall be obtained by the concerned authority and investigating officer before going for termination. If the fetus delivered alive, the pre-natal care shall be given by the concerned Hospital and the entire cost shall be borne by the Government. R/SCR.A/5686/2025 ORDER DATED: 23/04/2025 16. It would be open for the victim to move the Chairman of concerned District Legal Services Authority/Presiding Officer of POCSO Court, who in turn, after following prescribed procedure, shall award interim compensation in accordance with law. 17. In case if the fetus survives, it would be open for the learned APP to move the Court for necessary orders. 18. With above observations and directions, present petition stands disposed of. Direct service today is permitted. 19. Copy of this order also be provided to learned APP for onward transmission to the concerned Civil Hospital for taking necessary action. (J. C. DOSHI,J) SHEKHAR P. BARVE Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 23/04/2025 12:30:27