PRIYANKA GIRISHKUMAR PATEL Vs. PRINCIPAL SECRETARY

JUDGEMENT

(1.) RULE . Mr.Bharat Vyas, learned AGP waives service of rule.

(2.) THE petition is filed by Minor Priyanka Girishkumar Patel through her father and natural guardian Girishkumar Bachardas Patel under Articles 14, 21 and 226 of the Constitution of India with the following prayers;

(3.) MR . Sudhansu S. Patel, learned counsel for the petitioner, submits that Minor Priyanka is aged about 12 years and 5 months her date of birth 8.7.2000. The factum about the age of the petitioner victim was also recorded at the time when the Incharge Medical Officer examined the petitioner victim and the father of the minor Priyanka has filed this petition on behalf of minor Priyanka with a prayer to issue an appropriate direction and permission to undertake termination of pregnancy of the petitioner victim. In support of the prayer, the learned counsel for the petitioner has referred to the provisions of Sections 3, 4 and 5 of the MTP Act and emphasized Explanation 1 to Section 3 and submitted 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. It is submitted that, since Minor Priyanka, aged about 12 years and 5 months, is the victim of the offence of rape under Section 376 of the IPC, her case is covered by Explanation I and under clause (a) of sub-section (2) of Section 3 of the MTP Act. The learned counsel for the petitioner has referred to Sections 4 and 5 of the MTP Act about the place where pregnancy can be terminated and non application of Sections 3 and 4 of the MTP Act in certain cases. He invited the attention of this Court to the following decisions: [i] (2009) 9 SCC 1, Suchita Srivastava and another vs. Chandigarh Administration; [ii] 1984 CRI. L.J. 446: Komalavalli vs. C.R. Nair and others [iii] 1996 CRI. L.J.3795 : D. Rajeshwari vs. State of T.N. And others [iv] Oral order dated 28.6.2002 passed by this Court in Special Criminal Application No.386 of 2002:Rekhaben vs. State of Gujarat and submitted that, considering the facts and circumstances of the case, statutory provisions contained in MTP Act, and pronouncement of the Apex Court and the High Courts in this regard, right to life and liberty which includes right to live with dignity under Article 21 of the Constitution of India. It is further submitted that the fact about continuance of pregnancy would cause and constitute a grave injury to the mental health of the pregnant woman coupled with the fact that bearing and rearing of a child in the womb would create a great mental agony of the victim for her entire life and may invite other socioeconomic problems.