Mrs. Poonam Kanaiya Chauhan v. The State Of Maharashtra Thru Secretary, Women And Child Development And ORS

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10916 OF 2018 XYZ

...Petitioner

vs.

The State of Maharashtra and others

...Respondents

Ms Ameeta Kuttikrishnan for the Petitioner Mr.P.G.Sawant, AGP for the respondent No.2 Ms Purnima Awasthi for respondednt No.1 CORAM : A.S.OKA, & M.S.SONAK, JJ.

DATE : SEPTEMBER 26, 2018 P.C.:

Perused the order dated 21st September 2018. The petitioner has tendered additional affidavit to which a photo copy of her Aadhar Card is annexed. Affidavit is taken on record and marked `A-1' for identification.

In terms of the order dated 21st September 2018, a medical board constituted by the Dean of Sir J.J.Group of Hospitals has submitted a report. The medical board consisted of seven Doctors attached to Grant Medical College, Mumbai. The Board consisted of 1) Professor and Head of Department of Obstetrics and Gynecology of Grant Government Medical College and Sir J.J.Group of Hospitals, 2) Professor and Head of the Department of Psychiatry, Sir J.J.Group

of Hospitals, 3) Professor and Head of Department of Radiology, Sir J.J.Group of Hospitals, 4) Professor and Head of Department of Paediatrics, Sir J.J.Group of Hospitals, 5) Professor and Head of the Department of Cardiology, Sir J.J.Group of Hospitals, 6) Professor and Head of the Department of Pediatrics Surgery, Sir J.J.Group of Hospitals,

7) Professor and Head of the Department of Neurology, Sir J.J.Group of Hospitals, 8) Professor and Head of the Department of Neurosurgery, Sir J.J.Group of Hospitals. The report is taken on record and marked `R-1' for identification. In the report, opinion of the Board is recorded. The opinion reads thus:

COMMITTEE OPINION "UPON EXAMINATION & AFTER CAREFUL STUDY OF MULTIPLE SONOGRAPHY REPORTS, IT IS CONFIRMED THAT THE FETUS SUFFERS FROM SERIOUS NEUROLOGICAL ABNORMALITY IN THE FORM OF ANENCEPHALY AND POLYHYDRAMNIOS.

THE CONDITION OF THE FETUS FULFILS THE CRITERIA OF "SUBSTANTIAL RISK OF SERIOUS PHYSICAL HANDICAP" AND IS NOT COMPATIBLE WITH LIFE. FETUS WILL NOT SURVIVE AFTER BIRTH.

THE WOMAN WAS BEEN EXPLAINED ABOUT THE RISK IN THE LANGUAGE SHE UNDERSTANDS I/V/O MATERNAL HEART DISEASE AND NEED OF TEMPORARY

PACEMAKER STANDBY AT THE TIME OF DELIVERY.

THE PRREGNANT WOMAN HAS VOLUNTARILY EXPRESSED HER DESIRE TO TERMINATE THE PREGNANCY AND IS WELL INFORMED ABOUT THE NATURE OF THE CONDITION OF FETUS AND ITS OUTCOME. SHE IS ANGUISHED WITH THE CONDITION OF THE FETUS IN UTERO. HENCE, IT IS ADVISABLE TO TERMINATE THE PREGNANCY.

THE PREGNANCY HAS ADVANCED TO 26 WEEKS AND IS BEYOND 20 WEEKS CUT OFF OF THE MEDICAL TERMINATION OF PREGNANCY ACT. HENCE SHE HAS APPROACHED HONOURABLE COURT FOR TERMINATION OF PREGNANCY."

We have heard the learned counsel for the petitioner, the learned AGP for the second respondent and the learned counsel for the first and third respondents.

Our attention is invited to the decision of the Division Bench of this Court dated 9th January 2018 in Writ Petition St.No.36727 of 2017 in the case of Shaikh Ayesha Khatoon vs. Union of India and others. The Division Bench was dealing with the similar case where the petitioner lady was in the 27th weeks of pregnancy. In the present case, the petitioner is in 26th week of pregnancy. The Division Bench considered sections 3 and 5 of the Medical Termination of Pregnancy Act,1971 (for short `the

said Act').

In paragraph 10, the Division Bench quoted sections 3 and 5 of the said Act. Paragraph 10 reads thus:

"10 Section 3(2)(b)(i) and (ii) as well as section 5 (1) of the Act of 1971 read thus:

"3.

When pregnancies may be terminated by registered medical practitioners -

(1) xxxx

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, - (a) xxxx (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 worn, it would suffer from such physical or mental abnormalities as to be seriously handicapped."

"5.

Sections 3 and 4 when not to apply -

(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman."

In paragraph 13, the Division Bench held thus: "13 It is further observed that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a 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 [as per section 3(2)(b)(i) of the Act of 1971] or when there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped [as per Section 3(2)(b)(ii) of the Act of 1971]. It is true that Clauses (I) and (ii) of subsection 2 (b) of Section 3 are attracted in the case where the length of the pregnancy exceeds twelve weeks but does not exceed

twenty weeks. However, as has been recorded above, Section 5 permits termination of pregnancy by a registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. It shall also have to be construed that Section 5 brings within its ambit the provisions of Section 4 and so much of the provisions of sub-section (2) of Section 3 of the Act of 1971 except the limitation in respect of length of the pregnancy of 20 weeks as provided in sub-section (2)(b) of Section 3 of the Act of 1971.

It would thus be logical to conclude that the contingencies referred in Clauses (i) & (ii) of subsection (2)(b) of Section 3 will have to be read in Section 5 of the Act of 1971 and it would be relevant to consider the threat perception and substantial risk involved if the child were to born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

to promote cause of justice."

Even in paragraph 22, the Division Bench reiterated that if the conditions laid down in clauses (i) and (ii) of sub-section 2(b) of section 3 of the said Act are satisfied, it would provide a good ground for exercising jurisdiction under section 5 of the said Act. In the present case, going by the opinion of the Medical Board, the contingency provided in clause (ii) of sub-section 2(b) of section 3 of the said Act exists. The Medical Board has opinioned the fetus is in the category of "substantial risk of serious handicap and is not compatible with life". There is no reason to discard the opinion of the Medical Board. The opinion of the Medical Board records that the petitioner is well informed about the nature and condition of the fetus and she has voluntarily expressed her desire to terminate the pregnancy.

This is a fit case to permit the petitioner to undergo medical termination of pregnancy. The petitioner is aware about the risk involved and the petitioner has agreed to bear the expenses.

the procedure of medical termination of pregnancy will enjoy immunity from any legal action arising out of this litigation.

According we pass the following order:

(i) We permit the petitioner to undergo medical termination of her pregnancy in Sir J.J.Group of Hospitals, Mumbai. It will be open for the petitioner to report to the office of the Head of the Department of Gynecology of the said hospital on Friday i.e. 28th Septemebr 2018 at 11.00 a.m. The petitioner will produce a copy of this writ petition along with annexures and documents of identity which shall be verified by the concerned officers of the said hospital;

(ii)We direct the authorities of Sir J.J.Group of Hospitals to admit the petitioner immediately on her reporting on Friday 28th September 2018 and ensure that the procedure for medical termination of pregnancy will be undertaken;

(iii) Needless to add that the medical

termination of pregnancy will be at the risk of the petitioner and the doctors who are the members of the Medical Board and the doctors who will perform the procedure will enjoy immunity from any legal action arising out of this litigation;

(iv) The petition is disposed of on the above terms;

(vi) Hospital Authorities to act upon an authenticated copy of this order.

(M.S.SONAK,J.) (A.S.OKA,J.)