Bombay High Court
X, Since Minor Through Her Father ... vs The State Of Maharashtra on 11 May, 2021
Equivalent citations: AIRONLINE 2021 BOM 1152, AIRONLINE 2021 BOM 1137
Bench: K.K.Tated, Abhay Ahuja
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 11131 OF 2021
'X' (since minor through her
father Mr. Jitendra Kumar Singh) ..... Petitioner
Vs.
The State of Maharashtra ..... Respondent
Ms. Ruchita Padwal i/b Ms. Aditi Saxena. Advocate for
Petitioner.
Ms. P.H. Kantharia, GP, for Respondent/State.
CORAM: K.K.TATED &
ABHAY AHUJA, JJ
DATED : MAY 11, 2021
(VACATION COURT THROUGH VC)
P.C.
1. Rule. With the consent of the counsel for the parties,
Rule is made returnable forthwith.
2. Petitioner has been named 'X' in order to protect her
identity.
3. This petition is fled by petitioner who is a minor girl
aged 16 years, through her father, for permission to undergo
medical termination of pregnancy at KEM Hospital, in her
24th week of pregnancy.
4. It is mentioned in the petition that an FIR was lodged
at Manikapur Police station under section 376 of the I.P.C.
and under sections 4, 8 & 12 of the Protection of Children
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from Sexual Offences, Act, 2012. The victim was raped by
accused residing nearby. As a result of sexual offence, the
victim became pregnant. Petitioner did not get her
menstrual cycle for three months. Petitioner's mother noted
change in the Petitioner's abdomen area and so took her to
local clinic for check-up, where doctor after examination
informed Petitioner's mother that Petitioner was pregnant
and sent the Petitioner for medico-legal checkup to R. N.
Cooper Hospital. The said test was conducted on 23 rd April
2021 and police were informed. Medical examination of
Petitioner revealed that, she was pregnant and pregnancy
was of 20 weeks gestation. The FIR was lodged on 24 th April
2021. Since the pregnancy had exceeded the statutory
period of 20 weeks prescribed under the Medical
Termination of Pregnancy Act, 1971 (the "MTP Act"),
Petitioner is seeking permission from this court to
terminate her pregnancy.
5. We have heard Ms. Padwal, the learned Counsel for the
petitioner and Ms. Kantharia, the learned GP for the
Respondent.
6. The learned Counsel for the petitioner relied on a few
judgments passed by the Hon'ble Supreme Court as well as
different Division Benches of this Court dealing with the
issue of granting permission for termination of pregnancy
even after the statutory period of twenty weeks provided
under the MTP Act was over. He submitted that the mental
trauma that the victim petitioner is undergoing because of
the pregnancy caused due to the offence of rape was causing
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serious injury to her mental health. Besides this, there was
inherent risk to her life because of pregnancy at such a
tender age.
7. Considering the various directions issued by the
Hon'ble Supreme Court, as well as, by different Division
Benches of this Court, this Court on 6 th May 2021, directed
the Medical Board at the Sir J. J. Group of Hospitals and
Grant Medical College, Mumbai to submit a report about
permitting medical termination of Petitioner's pregnancy to
this Court.
8. Today, the report of the Committee is tendered before
us in sealed envelope. The envelope is opened in the court.
The report dated 10th May 2021 of the Committee reads
thus:
"After careful clinical examination,
ultasonography examination and psychiatric
evaluation, the committee has come to the
opinion that at present no abnormality is detected
in the fetus or the pregnant minor mother.
Pregnant minor and her parents do not wish to
continue the pregnancy. The minor (16 years old)
is anguished with the pregnancy.
Continuation of pregnancy in minor may
lead to pregnancy related complications like
anemia, pregnancy induced hypertension as well
as increased operative interference during labour.
It is also going to have psychological impact on
pregnant minor with uncertain future.
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Termination of pregnancy at 23 weeks will carry
risks similar to delivery at term.
Pregnant minor and her parents have
expressed their desire to terminate the
pregnancy and are made aware of the dangers of
continuation of pregnancy, as well as termination
of pregnancy.
Since the pregnancy has advanced to 23
weeks, well beyond legal limit of termination of
pregnancy i.e. 20 weeks, the termination can only
be done with Honourable High Court's permission.
Though at 23 weeks of gestation,
termination of pregnancy carries substantial risk
to pregnant minor, continuation of pregnancy will
have both physical and mental stress to minor
mother. Hence, it is advisable to terminate the
pregnancy in whichever institute the minor and
her parents desire.
If the permission for termination of
pregnancy is granted, the honourable High Court
is requested to instruct the parents to bear
responsibility of the child and the required
neonatal management if born alive."
9. It is clear from the above opinion of the committee
that continuation of pregnancy of minor may lead to
pregnancy related complications like anemia, pregnancy
induced hypertension as well as increased operative
interference during labour; also going to have psychological
impact on pregnant minor with uncertain future; and that
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termination of pregnancy at 23 weeks will carry risks
similar to delivery at term and though at 23 weeks of
gestation, termination of pregnancy carries substantial risk
to pregnant minor, continuation of pregnancy will have both
physical and mental stress to minor mother. The members
of the Board have opined that the pregnancy can be
terminated with permission of this Court.
10. In this background, we considered various aspects of
the matter in the light of the law laid down in this behalf by
the Hon'ble Supreme Court and this Court. Since this is an
unusual and unfortunate case, it is necessary to consider
some important aspects in this connection.
11. The MTP Act was enacted in the year 1971. Section 3
of the MTP Act reads thus :
"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
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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 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."
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12. Under Section 3(2)(b) of the MTP Act, the maximum
period of pregnancy is prescribed as twenty weeks. The
circumstances under which the pregnancy can be
terminated are also set out under this Section. One such
circumstance, as mentioned in Section 3(2)(b)(i) is that the
termination of pregnancy is allowed if the continuance of
the pregnancy involved a risk to the life of the pregnant
woman or grave injury to her physical or mental health.
Explanation 1 to this sub-section provides that when the
pregnancy was caused by rape, it was presumed to
constitute a grave injury to the mental health of the
pregnant woman. In the instant case, this particular
circumstance is clearly existing and there is no doubt that
continuance of this pregnancy is causing a grave injury to
the mental health of the petitioner. Apart from this, of
course, considering her tender age of 16 years, there is an
inherent risk to her life. The only diffculty in the present
case is that the statutory period of 20 weeks is over.
Petitioner has entered into 23rd week of her pregnancy and,
therefore, the MTP Act does not permit medical termination
of pregnancy in such cases.
13. However, Sub-Section (1) of Section 5 of the MTP Act
carves out an exception, which reads thus :
"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
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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."
14. A Division Bench of this Court (Coram: A.S. Oka &
M.S. Sonak, JJ.) in Writ Petition Nos.10835/2018,
9748/2018 & OS Writ Petition (L) No.3172/2018, decided on
3.4.2019 has discussed and dealt with similar issue. The
Division Bench considered various judgments passed by the
Hon'ble Supreme Court and discussed many issues. First
and foremost, the Division Bench referred to the order of
the Hon'ble Supreme Court passed in Writ Petition (Civil)
No.928/2017, wherein it was observed that such cases could
be fled in the respective High Courts having territorial
jurisdiction. In paragraph-116, the Division Bench has
observed that in such cases Writ Petition under Article 226
of the Constitution of India will have to be instituted in this
Court if the petitioner resides within the territorial
jurisdiction of this Court or if the cause of action arises
within the territorial jurisdiction of this Court to seek
permission for termination of her pregnancy if such
termination is not immediately necessary to save her life,
but, where she alleges that the circumstances set out in
clauses (i) & (ii) of Section 3(2)(b) of the MTP Act exist.
15. The Division Bench also considered whether
expression 'life' in Section 5 of the MTP Act was to be
construed narrowly as antithesis to death or physical
survival or whether it had to be liberally interpreted
adopting the principles of purposive interpretation.
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16. It was observed in paragraphs-79 and 80 that where
the continuance of pregnancy poses grave injury to the
physical or mental health of the mother, if the pregnant
mother is forced to continue with her pregnancy merely
because the pregnancy had extended beyond the ceiling of
20 weeks, there would arise a serious affront to the
fundamental right of such mother to privacy, to exercise
reproductive choices, to bodily integrity and to her dignity.
It was further observed that the principle of liberal or
purposive construction would harmonize the provision in
Section 5 of the MTP Act with the constitutional provisions.
Based on some Supreme Court judgments, the Division
Bench went on to observe that the right to life enshrined in
Article 21 included the right to live with human dignity.
17. Considering all these facets, the Division Bench held,
inter alia, where a pregnant woman, the length of whose
pregnancy has exceeded 20 weeks, seeks to terminate such
pregnancy on the ground that its continuance would involve
grave injury to her physical or mental health or where
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, such pregnant woman will have
to seek permission from the High Court and unless such
permission is granted, no registered Medical Practitioner
can terminate such pregnancy.
18. It was further held that, this Court, in exercise of its
extraordinary jurisdiction under Article 226 of the
Constitution of India, can permit medical termination of
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pregnancy the length of which exceeds 20 weeks, in
contingencies set out in clauses (i) and (ii) of Section 3(2)
(b) of the MTP Act. The Division Bench had directed the
State to constitute Medical Boards for this purpose, which
direction appears to have found place in the 2021
amendments, though yet to be made effective.
19. The Division Bench had further held that if medical
termination of pregnancy was permitted and inspite of that
if the child was born alive, then the registered Medical
Practitioner and the hospital concerned was required to
assume full responsibility to ensure that such child is
offered best medical treatment available in the
circumstances and in such cases if the parents of
such child were not willing to or are not in a position to
assume the responsibility for such child, then, the State and
its agencies will have to assume full responsibility for such
child in the best interests of such child and in accordance
with the statutory provisions of the Juvenile Justice Act.
20. In view of the observations made in the aforesaid
judgment of the Division Bench in W.P Nos.10835/2018,
9748/2018 & OS W.P. (L) No.3172/2018, applying the ratio,
guidelines and directions of this judgment to the facts of the
case, we are of the considered view that Petitioner will have
to be permitted to undergo medical termination of
pregnancy.
21. The report of the committee also mentions that, the
pregnant minor and her parents have been made aware of
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the dangers of continuation of pregnancy as well as
termination of pregnancy.
22. Another Division Bench of this Court (Coram: R.M.
Borde & N.J. Jamadar, JJ.) in Writ Petition No.6613/2019
on 13.6.2019 has dealt with another important issue. It was
observed in that judgment that since the pregnancy in that
case was a result of physical abuse and since the FIR was
lodged, directions were issued for preservation of the tissue
sample, blood sample of the fetus for carrying out necessary
medical tests including DNA, fnger printing/mapping and
the Investigating Offcer was directed to forward the same
to the Regional Forensic Laboratory. The learned Counsel
for the petitioner submitted that similar directions needed
to be issued in the instant case as well.
23. Considering the above discussion, following order is
passed :
ORDER
i. The petitioner is permitted to undergo medical termination of pregnancy as per Committee's report dated 10th May 2021, at KEM Hospital, Mumbai.
ii. The Dean of the KEM Hospital, Mumbai shall ensure that the procedure is performed at a place which satisfes all the requirements of the MTP Rules 2003 and the procedure shall be conducted by the Medical Practitioner who satisfes the conditions laid down under those rules.
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iii. The blood sample and tissue sample of the fetus shall be preserved for the purpose of carrying out necessary medical tests including DNA and other tests. The Investigating Offcer conducting investigation shall ensure that the samples are forwarded to Forensic Science Laboratory and the samples shall be preserved for the purpose of trial of the offence.
iv. In case, if the child is born alive, the Medical Practitioner who conducts the procedure will ensure that all necessary medical facilities are made available to such child for saving it's life.
V. In case, if the child is born alive and if the petitioner and her parents are not willing or are not in a position to take responsibility of such a child then the State and its agencies will have to assume full responsibility for such child.
vi. Rule is made absolute in the aforesaid terms.
vii. No order as to costs.
viii. All concerned parties to act on the authenticated copy of this order. Learned A.G.P. is directed to send an authenticated copy of this order to the Investigating Offcer who is conducting investigation in the present case.
(ABHAY AHUJA, J.) (K.K.TATED, J.)
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