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2020 DIGILAW 770 (BOM)

Rinku Prasad v. Rinku Prasad

2020-06-23

RIYAZ I.CHAGLA, UJJAL BHUYAN

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1. Heard learned counsel for the parties. 2. This petition has been filed under Article 226 of the Constitution of India by the petitioner seeking a direction to the respondents, more particularly respondent No. 2 to examine the petitioner and thereafter to submit a report as to whether termination of pregnancy of the petitioner is possible and after considering the report to allow the petitioner to terminate her pregnancy. 3. On 15.06.2020, we had granted liberty to the petitioner to approach respondent No. 2 with the direction that if the petitioner appeared before respondent No. 2, she should be examined by a medical board and thereafter to submit a report to the Court. 3.1. Accordingly, medical report has been submitted which we have perused. 4. As per the medical report, petitioner was examined on 16.06.2020 by a medical board comprising of the following members: 5. The medical board found the petitioner to be physically fit for undergoing termination of pregnancy. Medical board opined that on clinical and sonographic examination of the petitioner, she was found to be pregnant of 28-30 weeks. She has no medical or obstetric complications. In view of urinary bladder outlet obstruction resulting in severe obstructive changes confirmed on ultrasonography baby has poor prognosis and can have severe kidney disease. In such circumstances, the board has recommended medical termination of pregnancy of the petitioner. However, the board has sounded a note of caution that there is substantial risk in termination of pregnancy at this gestation like failure of termination, need of unnecessary caesarean section, bleeding, etc. All those risks were explained to the petitioner and her family members and they expressed willingness to accept the risk. 6. This Court in XYZ Vs. Dean, B.J. Medical College & Sasoon Hospital, Pune (WP-ASDB-LD-VC-70/2020) on 15.06.2020 had examined a similar prayer based on medical report. In the said case, it was held as under: "13. In Suchita Srivastava Vs. State (UT of Chandigarh),: (2009) 9 SCC 1 , Supreme Court expressed the view that the right of a woman to have reproductive choice is an insegregable part of her personal liberty as envisaged under Article 21 of the Constitution. She has a sacrosanct right to her bodily integrity. 14. The Medical Termination of Pregnancy Act, 1971 has been enacted to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. She has a sacrosanct right to her bodily integrity. 14. The Medical Termination of Pregnancy Act, 1971 has been enacted to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. As per the statement of objects and reasons, provisions regarding termination of pregnancy in the Indian Penal Code have virtually become otiose. Abortion was considered or looked at primarily from the prism of an offence. With expansion and improvement of health services, doctors were often confronted with gravely ill or dying pregnant women requiring operation. Therefore to liberalise existing provisions relating to termination of pregnancy, the aforesaid Act was conceived as a health measure to mitigate the following: -where there is danger to the life or risk to physical or mental health of the woman; -on humanitarian grounds, such as, when pregnancy arises from a sex crime; and -on eugenic grounds where there is substantial risk that the child, if born, would suffer from deformities and diseases. 15. Section 3 of the Medical Termination of Pregnancy Act, 1971, briefly 'the Act' hereinafter, deals with situations when pregnancies may be terminated by the registered medical practitioners. Section 3 is extracted hereunder: "3. When pregnancies may be terminated by registered medical practitioners.-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or (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 born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation I.-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. Explanation II.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. (3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment. (4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a [mentally ill person], shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman." 16. Supreme Court in X Vs. Union of India, (2016) 14 SCC 382 considered the aforesaid provision and observed that the said provision deals with termination of pregnancies of different durations and the procedure contemplated thereof. Section 3 leaves no room for doubt that it is not permissible to terminate a pregnancy after 20 weeks. 17. On the other hand, section 5 of the Act enumerates the situations when sections 3 and 4 would not apply. Section 5 is reproduced hereunder: "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. (2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified. (3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years. (4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years. Explanation 1.-For the purposes of this section, the expression "owner" in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act. Explanation 2.-For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply." 18. Supreme Court in the above case, on perusal of Section 5 observed that termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible. 18.1. In that case, Supreme Court considered the report of the medical board which recorded a finding that the risk to the petitioner of continuation of her pregnancy of 24 weeks could gravely endanger her physical and mental health. In the light of the above, Supreme Court was satisfied that it was permissible to allow the petitioner to terminate her pregnancy which was in the 24th week in terms of Section 5 of the Act. In view thereof liberty was granted to the petitioner to terminate her pregnancy if she was so advised. 19. In Sarmishtha Chakraborty Vs. In the light of the above, Supreme Court was satisfied that it was permissible to allow the petitioner to terminate her pregnancy which was in the 24th week in terms of Section 5 of the Act. In view thereof liberty was granted to the petitioner to terminate her pregnancy if she was so advised. 19. In Sarmishtha Chakraborty Vs. Union of India, (2018) 13 SCC 339 , Supreme Court was again confronted with the prayer made by the petitioners, husband and wife, for constituting medical board to assess the pregnancy of the wife and directing termination of the pregnancy, after the pregnancy had crossed the outer limit of 20 weeks. In that case, Supreme Court considered the report of the medical board which revealed that the mother i.e. petitioner wife would suffer mental injury if the pregnancy was continued and there would be multiple problems if the child was born alive. Medical board had arrived at the conclusion that in a special case of that nature, pregnancy should be allowed to be terminated even after 20 weeks. In the fact situation of that case, Supreme Court directed medical termination of pregnancy of the petitioner wife. 20. This issue cropped up again before the Supreme Court in A Vs. Union of India, : (2018) 4 SCC 75. In that case also, petitioner sought for a direction to allow her to undergo medical termination of her pregnancy beyond 20 weeks as she apprehended danger to her life when she discovered that her fetus was diagnosed with severe defects which were untreatable and certain to cause the infant's death during or shortly after birth, which was also likely to endanger the mother's life. After evaluation of the report submitted by the medical board which stated that petitioner was in her 25th/26th week of pregnancy, Supreme Court permitted the petitioner to undergo medical termination of her pregnancy. 21. Thus having regard to the above and upon thorough consideration of the matter as well as on perusal of the report of the medical board, we are of the opinion that liberty may be granted to the petitioner to terminate her pregnancy which is in the 23rd week for the reasons given by the medical board. 22. Accordingly, permission is accorded to the petitioner for termination of her pregnancy to be carried out under the supervision of respondent No. 1 medical board." 7. 22. Accordingly, permission is accorded to the petitioner for termination of her pregnancy to be carried out under the supervision of respondent No. 1 medical board." 7. Considering the medical report in this case and the decision of this Court in XYZ Vs. Dean, B.J. Medical College (supra), we are of the view that liberty may be granted to the petitioner to terminate her pregnancy at this stage. 8. Accordingly permission is accorded to the petitioner for termination of her pregnancy to be carried out under the supervision of medical board of respondent No. 2. 9. With the above direction, writ petition is disposed of. 10. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.