Deepali Prakash Dehade And Another v. The Union Of India And Others
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD WRIT PETITION NO.5760 OF 2018 Deepali w/o Prakash Dehade Age: 23 years, Occu.: Household, R/o.Kerhala, Tq.Sillod, Dist.Aurangabad.
Prakash s/o Bhaskar Dehade Age: 30 years, Occu.: Agriculture, R/o.Kerhala, Tq.Sillod, Dist.Aurangabad.
Petitioners
Versus
The Union of India Through its Secretary, Ministery of Health and Family Welfare, M.H.Division, New Delhi.
The State of Maharashtra, Through its Secretary, Public Health Department, Mantralaya, Mumbai 32.
The Dean, Government Medical College And Hospital (GHATI), Aurangabad, District Aurangabad.
Respondents Mrs. Smita S. Kulkarni, advocate for the petitioners Mr. A.B. Girase, Government Pleader for Respondent State. Mr.D.G.Nagode, Advocate for Respondent No.1 ...
{2} CORAM : R.M. BORDE AND A.M. DHAVALE, JJ DATE : 19th JUNE, 2018 ORAL JUDGMENT :- (Per R.M.Borde, J.) Heard.
Rule. With the consent of the parties, petition is taken-up for final disposal at admission stage.
The petitioner is praying for according permission to terminate pregnancy carried by her which is stated to be more than 20 weeks duration.
It is the contention of the petitioner that there are foetal abnormalities which would necessitate termination of pregnancy. It is contended that in view of section 3(2)(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 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 there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be
{3} seriously handicapped, the pregnancy can be terminated. In the instant matter, the pregnancy carried by the petitioner is beyond 20 weeks and as such, section 5 will have applicability. The petitioner contends that there are foetal abnormalities and if she is compelled to carry pregnancy and if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Considering the contentions raised by the petitioner, she was referred for medical examination by the Medical Board constituted at Medical College & Hospital, Aurangabad. The Medical Board consisted of following members: (i) Head of OBGY department (ii) Head of Radiology Department (iii) Head of General medicine Department (iv) Head of General Surgery Department (v) Medical Superintendent.
(vi) Psychiatrist It is reported by the Medical Board as quoted:- " 1 From general medical examination she has no active medical complaints.
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Obstetric examination her vital parameters are within normal limits with 22 weeks of pregnancy.
3.
Ultrasonographic examination suggestive of single live intrauterine foetus of approximately 21 weeks 4 days s/o SLIUP with adequate liquor, variable lie ant placenta with foetal heart - four chembered view distorted hypoplastic left atrium left ventricle & LVOT, Right ventricle appears grossly dilated, large VSD is noted measuring 5.2 mm (Report attached). 4.
On psychiatric examination, clinically she is of average intelligence. No active current psychopathology. Her concept and judgment are intact. She is aware about the incident and the consequences about the continuation of pregnancy.
1. Current pregnancy, on clinical and ultrasonographical examination is around 21 weeks, four days of gestation. Four chembered view distorted hypoplastic left atrium, left ventricle & LVOT, Right ventricle appears grossly dilated, large VSD is noted measuring 5.2 mm.
2. Her physical and Mental Health is within normal limits.
3. The length of pregnancy 21 weeks 4 days.
4. Whether the continuance of Pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health ? - No.
5. Whether there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped ? - Complex congenital heart disease is a substantial risk involved in risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped and may be lethal.
6. Risk of termination of pregnancy is within normal acceptable limits. " Since the Medical Board has reported that there is substantial risk if the child were born, it would suffer from such physical or mental abnormalities, so as to be seriously
{5} handicapped and may be lethal, we deem it proper to consider the request of the petitioner.
This Court, in the matter of Shaikh Ayesha Khatoon versus Union of India and others (reported in 2018 (3) Mah. L.J. 486) has interpreted provisions of sections 3 and 5 of the Act of 1971. It is held by the Division Bench of this Court that clauses (i) and (ii) of subsection 3 (2)(b) will have to be read in section 5 except the bar of limitation as provided in subsection 3(2)(b) of the Act of 1971. In paragraph Nos.22 and 23 it is recorded as below:- "22 In the instant matter, on reading of section 5 of the Act of 1971, it does transpire that the contingencies and the parameters laid down in clauses (i) and (ii) of sub-section (2)(b) of section 3 shall have to be read in section 5 except the bar of limitation as provided in section 3(2)(b) of the Act of 1971.
It would not be appropriate to overlook the contingencies laid down in clauses (i) and (ii) of sub-section (2)(b) of section 3 while considering the request of a pregnant woman for termination of the pregnancy if the conditions laid down in clauses (i) and (ii) of sub-section 2(b) of section 3 are satisfied it would provide a good ground for exercise of jurisdiction under section 5 of the Act of 1971. 23.
The Ministry of Healthy and Family Welfare, Government of Maharashtra has prepared the MTP (amendment) Bill and the Notification in that regard was published on 29.10.2014. The State Government has proposed amendment to section 3 of the
{6} Act of 1973 and clause (C ) is proposed to be added which reads thus:
" (C ) the provisions of subsection (2) of section 3 as relate to the length of the pregnancy shall not apply to the termination of a pregnancy by a registered health care provider where the termination of such pregnancy is necessitated by the diagnosis of of any of the substantial foetal abnormalities as may be prescribed. "
The learned counsel for the petitioner, on instructions, states that the petitioner would undergo the procedure of termination of pregnancy at Medical College & Hospital, Aurangabad. The petitioner undertakes to report to the Medical College & Hospital, Aurangabad for carrying out the procedure of medical termination of pregnancy within three days from today. The procedure of medical termination of pregnancy would be carried by the two Medical Experts in Obstetrics & Gynecology. It is clarified at this stage that the petitioner has been sensitized by the committee/Medical Board about the risk factors involved and it would be open for the petitioner to undergo the procedure of medical termination of pregnancy at her own risk and consequences. It is further made clear that the Doctors who have put their opinion on record shall have the immunity in the event of occurrence of any litigation arising out of the instant petition.
{7} Rule is accordingly made absolute.
There shall be no order as to costs.
Parties to act upon authenticate copy of this order. (A.M. DHAVALE, J) ( R.M. BORDE, J ) vbd