Sheetal Rahul Gaikwad v. The Union Of India And Others
( 1 )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD WRIT PETITION NO. 9972 OF 2018 Sheetal Rahul Gaikwad Age: 24 years, Occu.: Housewife R/o: Galli No.3, Manik Nagar, Near Hanuman Mandir, Naregaon Taluka & Dist. Aurangabad.
...PETITIONER
Versus
1.
The Union of India Through Secretary Ministry of Health, Nirman Bhavan, New Delhi.
The State of Maharashtra Through Secretary, Health and Family Welfare Department, Mantralaya, Mumbai - 32 Chief Medical Officer Civil Hospital, Aurangabad Taluka & Dist. Aurangabad.
... RESPONDENTS ----- Mr. Raj S Devdhe, Advocate for the Petitioner. Mr. S.W. Munde, AGP for Respondent/State.
Mrs. Sudha Kulthe, Advocate for Respondent No.1. ----- CORAM :
R.M. BORDE & MANGESH S. PATIL, JJ.
DATE :
06.09.2018
( 2 ) JUDGMENT: (Per Mangesh S. Patil, J.) Heard. Rule. The Rule is made returnable forthwith. With the consent of both the sides the petition is taken up for final disposal at the stage of admission.
The petitioner is a married women who is 24 weeks and 5 days pregnant on the date of the petition. She is praying for an appropriate writ directing the respondents to permit her to undergo medical termination of pregnancy. According to her she had undergone sonography in order to evaluate anomalies at Janki Hospital on 25.08.2018 and following observations were noticed during such evaluation: "Internal OS is closed and cervical length is 4 cm by TVS. Placenta is Ant, no previa Liquor is adequate for this gestation Movements and cardiac activity regular EL 24 wks 04 days The concerned Sonologist has further opined as under: "IMPRESSION- Single live intravterine pregnancy of 24 wks & 4 days of gestation with Anecephaly. No
( 3 ) other cong anomalies seen."
It is to be noted that anecephaly connotes no skull and brain matter. By the order dated 30.08.2018 this Court had constituted a Medical Board consisting of - (1) Head of the Obstetrician & Gynecology department (2) Head of the Radiology Department (3) Head of General Medicine Department (4) Head of General Surgery Department (5) Medical Superintendent (6) Psychiatrist.
It was directed that the Medical Board shall conduct thorough examination and submit a report today and the petitioner was asked to appear before the board on 01.09.2018.
4.
Pursuant to such directions today the learned A.G.P. submits the report in a sealed cover. The board consisting of following experts was constituted:
( 4 ) 1.
Dr. Bharat Sonwane (Chairman), Medical Superintendent, GMCHA Dr. Prashant Bhingare (Member), Asso. Prof, OBGY Dr. Anjali Dahiphale (Member), Asso. Prof, Radiology 4.
Dr. Jirvankar (Member), Asso. Prof, Medicine 5.
Dr. Sanjay Ghuge (Member), Head of Dept. Psychiatry 6.
Dr. Suresh Harbade, (Member), Asso. Prof. Surgery 7.
Dr. Rashmi Bangali (Member), Asso. Prof. Anaesthesia 8.
Dr. Trupti Joshi (Member), Asso. Prof. Pediatrics It has recorded following findings:
"1] Patient has anemia with HB 7 gm/dl 2] That the length of Pregnancy is 24 weeks 5 days. 3] Brain parenchyma and cranial vault not visualized with bilateral bulging orbits s/o anencephaly and has submitted the opinion which reads as under:
"Taking into consideration the above findings fetus is not compatible with life. Pregnancy can be terminated with due risk and after correction of anemia."
5.
The Division Bench of this Court in the case of Shaikh Ayesha Khatoon vs. Union of India and others,; 2018 (3) Mh.L.J. 486 to which one of us was a party (R.M.Borde, J.) had an occasion to consider the provisions of Medical Termination of Pregnancy Act and it has been laid down in paragraph no.13 as under:
( 5 ) "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 a 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 sub-section 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.
(2) (b) of section 3 of the Act of 1971. It would thus be logical to conclude that the contingencies referred in Clauses (i) and (ii) of sub-section (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. The contingencies laid down in Clauses (i) and (ii) of sub-section (2) (b) of section 3 shall
( 6 ) therefore equally apply to the request of a pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks and accordingly section 5 (1) will have to be construed, to meet the object and purpose of enactment and to promote cause of justice."
6.
Considering the law laid down by the Division Bench in the case of Shaikh Ayesha Khatoon (Supra) and in view of the finding of the Medical Board constituted by this Court referred to herein-above, it is apparent that there is evidence of substantial risk to the foetus which necessitates termination of pregnancy.
7.
The Writ Petition is allowed. The petitioner is allowed to undergo medical termination of pregnancy at registered medical center of her choice or at Government Medical College and Hospital, Aurangabad and at her expenses and under supervision of expert Obstetrician and Gynecologist. 8.
The Rule is made absolute in above terms.
[MANGESH S. PATIL, J.] [R.M. BORDE , J.] KAKADE