Nareshbhai Shankarbhai Dantani vs State Of Gujarat

Bhargav D. Karia, J

[1] Heard learned advocate Mr. Amit Joshi for the petitioner and learned Additional Public Prosecutor Ms. C.M. Shah for the respondent State

through video conference.

(2) With the consent of learned advocate for the petitioner and learned Additional Public Prosecutor, present petition is taken up for final disposal, in

view of short but serious issue involved in the petition.

[3] Present petition is preferred by the father of the victim girl who is aged about 15 years and 2 days (date of birth 05.08.2005) under Article 226 of

the Constitution of India read with the provisions of the Medical Termination of Pregnancy Act, 1971.

[4] On 29.07.2020, this Court passed the following order :-

“Heard learned advocate Mr. Amit Joshi for the petitioner and learned Additional Public Prosecutor Ms CM Shah for the respondent-State through

video conference.

This is a petition for termination of pregnancy of the daughter of the complainant who is the victim. Learned advocate Mr. Joshi states that pregnancy

of the daughter of the petitioner is 20 weeks and two months on the date of filing of this application i.e. 20.07.2020.

Issue Notice returnable on 7th August, 2020. Learned Additional Public Prosecutor Ms. Shah waives service of notice of rule on behalf of the

respondent State.

Victim is to cooperate for medical examination by the respondent no.2 as and when called for.

The Registry is directed to send a copy of writ of this order to the learned advocate for the petitioner Mr. Joshi through e-mail so as to serve upon

respondent no.2.

Respondent no.2 to place the report of his opinion on the next date of hearing before the Court.

Direct service is permitted.â€​

[5] Pursuant to the order dated 29.07.2020, learned APP has received report of panel of three Doctors dated 05.08.2020 of Department of Obstetrics

and Gynecologists, GMERS Medical College, Sola, Ahmedabad addressed to the Deputy Registrar of this Court. The said report is ordered to be

taken on record. The victim girl viz. Pinky is examined by three panel of Doctors of GMERS Medical College, Sola, Ahmedabad viz. Dr. Nilesh

Chauhan(Associate Prof.-Chairman) , Dr. Vijay M. Kansara (Associate Prof.) and Dr. Swati N. Patel (Assistant Prof.).

[6] Panel of Doctors have given opinion as under :

“After carefully reviewing the history, examination and opinion of the concerned department committee was of the following opinion.

Victim was 24 wks 5 days & 650 gm foetal weight as per USG report dated 4/8/2020. Which is beyond the limit allowed by the MTP Law.

Termination beyond 24 wks is associated with following risk.

• Termination may result in live born foetus. Whose chance of survival is still 40-50% and baby may suffer with other morbid conditions.

• The methods employed for termination of pregnancy at this maturity of foetus may result in failure in more than 40-50% cases in which case

caesarean delivery (Hysterotomy) will be required which is associated with its own morbidity & morality and anesthesia risks.

• Preterm termination increases risk of complication like failure of termination, infection operative delivery & excessive blood loss and may require

surgical intervention and can become life threating in some cases.

• Informed consent of guardian will be required after explaining the entire likely outcome.

Victim is psychologically borderline intelligence.

Victim has no medical or surgical pathology as per the opinion of concerned specialties.â€​

[7] This Court has heard both the sides and considered the opinion / report duly signed by Assistant and Associate Professors / Panel of Doctors,

Department of Obstetrics and Gynecology, GMERS Medical College, Sola, Ahmedabad submitted by them through learned APP to the Deputy

Registrar of this Court.

[8] Learned advocate for the petitioner submitted that the termination of pregnancy is permissible up to 20 weeks and at the time of examination by

concerned Doctors on 4.8.2020, pregnancy of 24 weeks 5 days and 650 gram foetal weight is noted. It was further submitted that considering the age

of the girl and her mental and physical health preterm termination permission may be granted.

[9] Learned APP has urged the Court that in given set of circumstances of case, looking to the opinion given by the panel of doctors, direction for

termination of pregnancy may not be issued. However, in case, if the Court is inclined to give direction for termination of pregnancy, the tissues from

fetus may be directed to be handed over for the purpose of DNA sampling in scientific manner to the Investigating Officer.

[10] On hearing both the sides, this Court has noticed that the victim is alleged to have been abducted by the accused, named in the FIR being

C.R.No.11216004200054 of 2019 registered with Dabhoda Police Station, District Gandhinagar for the offence punishable under sections 376(3), 363,

366 of the Indian Penal Code,1879 read with sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012.

[11] The victim is already carrying about 24 weeks of pregnancy with specific report / opinion of panel of Doctors that preterm termination of

pregnancy would increase risk of complication like failure of termination, infection operative delivery and excessive blood loss and may require

surgical intervention and can become life threatening in some cases. No doubt, pregnancy exceeds 20 weeks, but considering the provisions of Section

5 of the Medical Termination of Pregnancy Act, 1971 and opinion of three registered Medical Practitioners, termination of pregnancy is immediately

necessary to save mental and physical health of the victim.

[12] 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 issued 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 on ensuring proper care

in pre-termination and post termination period. The Doctors shall take necessary tissue samples from the DNA of the fetus by following scientific

practice for DNA identification and such samples shall be handed over to the Investigating Officer concerned.

[13] Intimation of this order shall be given to the GMERS Medical College, Sola, Ahmedabad forthwith by the learned APP. Copy of this order shall

also be sent by the Registry to the GMERS Medical College, Sola, Ahmedabad.

[14] Since the pregnancy of victim exceeds 20 weeks as of now, the Court directs three senior most Gynecologists of GMERS Medical College, Sola,

Ahmedabad to examine the victim girl and also by psychologist attached to the GMERS Medical College, Sola, Ahmedabad. The said team of Doctors

shall examine the victim Ms. Pinki and after having interaction with her, undertake the procedure of surgery on urgent basis along with other required

expert Doctors like Physician, Anesthetic etc., if otherwise, there is unanimity amongst the Doctors to the effect that such termination would be

carried out safely.

[15] Liberty is reserved in favour of the victim girl to apply for interim compensation before the Chairman, District Legal Services Authority,

Gandhingar and on such request being made by the victim in this regard, the concerned Chairman, District Legal Services Authority after following

prescribed procedure shall award interim compensation in accordance with law.

[16] With above directions, present petition stands disposed of. Direct service today is permitted.

Copy of this order shall be sent to learned Additional Public Prosecutor Ms. C.M. Shah and learned advocate Mr. Amit Joshi for onward

communication immediately through email/fax.