ORDER : 1. The toughest decisions the Judges have to make are really those that involved a potential life changing situation for the litigants. So as the instant case, a specially abled lady and her husband are before this Court seeking permission to terminate pregnancy of 34 weeks, mainly on two counts, viz. (i) their incapability of raising child due to their disabilities and (ii) the fetus diagnosed with Jackson – Weiss syndrome, deafness and contradiction of Aortic Arch. 2. The facts in brief giving rise to this petition can be stated as under: 2.1 The petitioners Nos.1 and 2 are specially abled persons married on 25th November 2017. The petitioners appear to have attempted for a baby twice in the past, however, unfortunately, two miscarriages happened in last five years. Thereafter, it appears that the petitioners attempted for the third time and this time, the petitioner No.1 conceived and has become pregnant. However, during the routine check up and follow up including ultrasound as well as Genetic Analysis Test as advised by the Doctors time to time, to their utter misfortune, the fetus was diagnosed with Jackson Weiss syndrome. The fact, however, remains that the pregnancy has reached to 34 weeks by now. 3. The petitioners, therefore, having realized the difficulties that might have to face in raising a child that too with other probable medical complications to the child, have approached this Court seeking, inter alia, permission to terminate the pregnancy of petitioner No.1. 4. This Court, on 21st September 2022, passed an interim order directing the Medical Superintendent, S.S.G. Hospital, Vadodara to form a panel of senior-most Gynecologists of the hospital and thereafter, shall examine the petitioner No.1 and then, to submit written opinion as to feasibility of terminating the pregnancy. 5. Pursuant to the aforesaid interim order, petitioner No.1 appeared before the panel of doctors on 23rd September 2022, whereby two senior-most Gynecologists of the Department of Obstetrics and Gynecology, S.S.G. Hospital, Vadodara examined the petitioner No.1 carefully. After clinical examination and with the help of ultrasound, pregnancy was found of 33 weeks and 6 days, and thereby, vide their report dated 24th September 2022, in no uncertain terms, the panel of two senior-most Gynecologists, opined that it is not advisable for the physical and mental well being of the patient to terminate the pregnancy at this advanced stage. For the sake of convenience, it would be profitable to reproduce the opinion rendered by the senior-most Gynecologists as under: “To, The Deputy Registrar, Gujarat High Court, Ahmedabad. Date – 24/09/2022 Subject: Medical examination of Swati Aditya Bhalerao Ref: court order no.-R/Special criminal application no.10048 of 2022 Dated 21/09/2022. Sir, We have examined Swati Aditya Bhalerao vide the above order issued by the Honourable court. This examination has been carried out by the two senior Gynecologists of the department of Obstetrics and Gynecology, SSG hospital, Baroda on 23/09/2022. The physical examination and ultrasound performed shows a pregnancy of 33 weeks and 6 days. She has also been examined by the physician, psychiatrist and reports reviewed by paediatrician. A termination of pregnancy at this advanced gestational age may cause complications in the patient The fetus weighs 2400 grams as shown on ultrasound is likely to survive with probable prematurity related complications as well as multiple malformations (orbital and skull anomaly, probable G6PD enzyme deficiency, coarctation of aorta). In view of this we are of the opinion that termination of pregnancy is not advisable for the physical and mental well being of the patient Swati Bhalerao. Sd/- Dr. D. A. Modi Associate Professor and HOU, Department of OBGYN SSG Hospital. Baroda. Sd/- Dr. Garima Gandhi Assistant Professor Department of OBGYN SSG Hospital. Baroda.” 6. Considering the aforesaid written opinion, it is pertinent to note that the weight of fetus, as per the ultrasound, is shown as 2400 grams and pregnancy is almost 34 weeks i.e. almost eight and half months. Thus, the fetus is now almost grown child in the womb. 7. In view of the aforesaid given facts, I have heard Mr. Bhavik Samani, learned advocate for Mr. Prateek Bhatia, learned advocate for the petitioners and Ms. Moxa Thakkar, learned A.P.P. for the respondent – State of Gujarat. 8. Mr. Samani, learned advocate for the petitioners submitted that the petitioners are specially abled persons and are having disability to the extent of 89% to 100% respectively and therefore, it will be difficult for the petitioners to raise a child with such disability on their part. Mr. Moxa Thakkar, learned A.P.P. for the respondent – State of Gujarat. 8. Mr. Samani, learned advocate for the petitioners submitted that the petitioners are specially abled persons and are having disability to the extent of 89% to 100% respectively and therefore, it will be difficult for the petitioners to raise a child with such disability on their part. Mr. Samani further submitted that even the child is also diagnosed with Jackson – Weiss syndrome, deafness and contradiction of Aortic Arch, and thereby, with such deficiencies, if the child is allowed to be born, would not be able to live normal life and thus, the petitioners do not want their child to suffer such an agony for the entire his/her life. Mr. Samani further submitted that as such, life of the petitioners is already very hard and under this condition, if the child is allowed to be born with such deficiencies, then it would be further burdening to the life of the petitioners. 9. Mr. Samani, learned advocate for the petitioners further submitted that it is the exclusive right of woman to give birth and thereby, if a woman does not want to continue with the pregnancy and is forced to have continued with pregnancy and to deliver a child, it would be amounting to violation of the woman’s bodily integrity and aggravates her mental trauma. To substantiate his contention, Mr. Samani, learned advocate has relied upon the following decisions of the Hon’ble Supreme Court: X vs. Principal Secretary Health and Family Welfare Department reported in 2022 LawSuit (SC) 860. Suchita Srivastava vs. Chandigarh Administration cited in 2009 LawSuit (SC) 1328, 2009(11) Scale 813 . Meera Santosh Pal and others vs. Union of India and others cited in 2017(1) Scale 556 , 2017 LawSuit(SC) 41. X and others vs. Union of India and others cited in 2017 LawSuit (SC) 93, 2017(2) Scale 262 . Tapasya Umesh Pisal vs. Union of India and others cited in 2017 LawSuit (SC) 1181, 2017 AIR (SC) 3931. X vs. Union of India and others cited in 2016 LawSuit (SC) 733, 2016(7) Scale 456 . A VS. Union of India and others cited in 2017 LawSuit(SC) 1198, 2017 AIR(SC) 4037. 10. By making the aforesaid submissions, Mr. Samani, learned advocate for Mr. Bhatia, learned advocate for the petitioners has prayed this Court to allow the present petition in the interest of justice. 11. Per contra, Ms. A VS. Union of India and others cited in 2017 LawSuit(SC) 1198, 2017 AIR(SC) 4037. 10. By making the aforesaid submissions, Mr. Samani, learned advocate for Mr. Bhatia, learned advocate for the petitioners has prayed this Court to allow the present petition in the interest of justice. 11. Per contra, Ms. Moxa Thakkar, learned A.P.P. has vehemently opposed the present petition contending that having regard to the opinion expressed by the panel of two senior-most Gynecologists, it would not be at all advisable for the patient to terminate the pregnancy at this stage. Ms. Thakkar, learned A.P.P. further submitted that termination of 34 weeks fetus, almost a fully grown baby, is not the best option for any pregnant woman even if woman is a specially abled person. According to Ms. Thakkar, as opined by the doctors, there is a risk of life of the petitioner No.1 and thereby, permission of termination of pregnancy at this advanced stage may not be granted. Ms. Thakkar, relying upon the aforesaid medical opinion, submitted that if the delivery is conducted at this stage, the chances of survival being born with probable prematurity related complications and thereby, the said aspect also will have to be weighed. Ms. Thakkar further submitted that no doubt, the fetus was diagnosed with Jackson – Weiss syndrome, deafness and contradiction of Aortic Arch and therefore, the petitioners should have approached this court at an initial stage of pregnancy. However, for any reason, couple waited up till now and the pregnancy reached to the 34 weeks. Ms. Thakkar, relying upon Section 3 of the Medical Termination of Pregnancy Act, 1971 (for short, “the Act”), contended that pregnancy of the petitioner No.1 is at a very advanced stage and thereby, the Act does not permit termination of pregnancy. 12. By making the aforesaid submissions, Ms. Thakkar, learned advocate for the respondent – State of Gujarat has prayed this Court to dismiss the present petition. 13. Having heard the submissions of the learned advocates appearing for the respective parties and having considered the medical report along with the settled position of law, a short question that falls for the consideration is whether should I grant permission for termination of pregnancy of 34 weeks? 14. 13. Having heard the submissions of the learned advocates appearing for the respective parties and having considered the medical report along with the settled position of law, a short question that falls for the consideration is whether should I grant permission for termination of pregnancy of 34 weeks? 14. So as to decide the aforesaid question, the provisions of Sections 3, 4 and 5 of the Act are as under : “SECTION 3 : When pregnancies may be terminated by registered medical practitioners (1) Notwithstanding anything contained in the Indian Penal Code, 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 1. - For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2. - For the purpose of clause (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act. (2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act. (2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. (2D) The Medical Board shall consist of the following, namely:— (a) a Gynaecologist; (b) a Paediatrician; (c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be. (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 of the pregnant woman’s actual or reasonably 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.” “SECTION 4 : Place where pregnancy may be terminated. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.” “SECTION 4 : Place where pregnancy may be terminated. No termination of pregnancy shall be made in accordance with this Act at any place other than- (a) a hospital established or maintained by Government, or (b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee : Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.” “SECTION 5 : Sections 3 and 4 when not to apply (1) The provisions of section 4, and so much of the provisions of subsection (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, 1860 (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. (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.” 15. Having considered the aforesaid provisions of law, it appears that as comprised under Section 3(1) of the said Act, provides that notwithstanding anything contained in the Indian Penal Code, 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 the said Act. Sub-section (2) of Section 3 of the said Act provides that subject to the provisions of Sub-section (4), a pregnancy may be terminated by a registered medical practitioner, where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or 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 s substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation I provides 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. Explanation I provides 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. Explanation II provides that 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. Sub-section (3) thereof provides that 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 of the pregnant woman’s actual or reasonable foreseeable environment. Sub-section (4) provides that 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, and save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman. 16. Section 5 of the said Act, which is yet another section dealing with the pregnancy, in its Sub-section (1) provides that 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 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. Sub-section (2) provides that notwithstanding anything contained in the Indian Penal Code, 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. Subsection (3) provides that 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. Sub-section (4) provides that 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 provides that for the purpose of the said 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 the said Act. The Explanation 2 provides that for the purpose of the said 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 gynecology and obstetrics shall not apply. 17. The above provisions of law comprised under the said Act clearly disclose the circumstances under which the pregnancy can be terminated. Undoubtedly, Section 5 of the said Act relates to the right of a pregnant woman to terminate pregnancy in case it is found necessary to save her life. It strictly restricts to the cases where the life of the pregnant woman would be in danger in case the pregnancy is not terminated and does not refer to any other circumstances. Undoubtedly, the opinion in that regard has to be formed by a registered medical practitioner and such opinion should be in good faith. The expression “good faith” discloses that the opinion has to be based on the necessary examination required to form such an opinion. 18. As far as Section 3(2)(b)(ii) is concerned, it clearly speaks of the right to terminate the pregnancy where there is a substantial risk in allowing the child to take birth as it would suffer from such physical or mental abnormalities as to be seriously handicapped. However, such right is restricted to the maximum period of twenty weeks of pregnancy and not beyond it. Section 3(2)(b)(ii) is very clear in that regard. However, such right is restricted to the maximum period of twenty weeks of pregnancy and not beyond it. Section 3(2)(b)(ii) is very clear in that regard. It also provides that before opting for such pregnancy within the said period, it is necessary for two registered medical practitioners to form an opinion in good faith for termination of the pregnancy. In case, the pregnancy has not exceeded twenty weeks, then such an opinion can be formed in good faith by any one medical practitioner. 19. It is pertinent to note that the Act does not envisage any situation where the pregnancy is more than twenty weeks. Considering the provisions of Sections 3, 4 and 5 of the Act, in my view, while granting termination of pregnancy, the paramount consideration is well being of a pregnant woman. It appears that while following termination procedure of pregnancy, the medical practitioner has to form an opinion as to such termination is immediately necessary to save the life of the pregnant woman. However, in the instant case, if the medical opinion is perused, the senior-most Gynecologists have, in no uncertain terms, opined that the termination of pregnancy is not advisable for the physical and mental well being of the patient i.e. the petitioner No.1 herein. 20. So far as the fetus as diagnosed with Jackson – Weiss syndrome, deafness and contradiction of Aortic Arch is concerned, in my view, the opinion of the senior-most doctors does not indicate that 100% child will survive with multiple malformations. The opinion of the senior-most doctors is suggesting probability. Even otherwise, in my view, at such an advanced stage of pregnancy, the fetus is grown to almost a baby in the womb now and therefore, permitting termination of pregnancy at this stage would be not only dehorse the opinion of the medical practitioners, but also contrary to the mandate of provisions of the Act. 21. So far as the contention raised by the learned advocate for the petitioners with regard to the petitioners being a specially abled persons, it will be adding a further burden for them to raise child with deficiencies, is concerned, in my view, from the facts of the present case, it seems that it is not a case of chance pregnancy or a forced pregnancy, but it is a case of plan and thoughtful pregnancy. In the past also, the petitioners have attempted and unfortunately, failed because of the miscarriages. Under the circumstances, this Court would not allow the petitioners to terminate the pregnancy at such an advanced stage on that ground. This Court fails to understand what could be the probable reason, which prevented the couple to approach the Court at the threshold when the fetus was diagnosed with Jackson – Weiss syndrome, deafness and contradiction of Aortic Arch. Be that as it may. The contention of the learned advocate for the petitioners with regard to difficulties / incapability in raising a child is, therefore, not worth accepting. 22. So far as the judgements relied upon by the learned advocate for the petitioners are concerned, in my view, the same were rendered in different set of facts. In none of the judgements, the Hon’ble Supreme Court granted permission where the pregnancy was of 34 weeks and where the life of the mother was not in danger. In my view, these are the two material distinguishing facts with the present case, and thereby, on facts, those judgements are not applicable. In the instant case, at the cost of repetition, the pregnancy is of 34 weeks and the weight of fetus assessed to be of 2400 grams, which is said to be grown child in the womb, and more so, the medical experts have opined against the termination of pregnancy. 23. In view of the aforesaid discussions and keeping in mind the exposition of law, in my considered opinion, when the pregnancy is at such an advanced stage i.e. 34 weeks and in absence of any medical opinion with regard to mental injury or endangering threats to the life of the petitioner No.1 herein, it would not be advisable to order and/or grant permission of termination of pregnancy. I answer the question accordingly. 24. In the result, the present petition fails and is hereby dismissed. Notice stands discharged.