Bombay High Court
Satroopa Santaram Nirmal vs State Of Maharashtra And 2 Ors on 13 May, 2021
Bench: K.K.Tated, Abhay Ahuja
2- NOB WPL 11232 of 2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) No. 11232 OF 2021
Satroopa Santaram Nirmal ...Petitioner
Vs.
State of Maharashtra and Ors. ...Respondents
******
None for Petitioner
Ms. Uma Palsuledesai, AGP for State.
******
CORAM: K.K.TATED &
ABHAY AHUJA, JJ.
(VIDEO CONFERENCING)
DATED : MAY 13, 2021
P.C.
1. Today the matter is shown on board at 1.45 p.m.
pursuant to the Praecipe filed by the Learned AGP.
2. It is stated in the Praecipe that in order dated 11th
May, 2021, Ms. P.H. Kantharia, Government Pleader
appeared along with Ms. Uma Palsuledesai, Assistant
Government Pleader. The same to be corrected.
3. Hence, the following order:
ORDERB
(a) In order dated 11th May, 2021, appearance of Uma
Palsuledesai , Assistant Government Pleader a/w Ms.
P.H. Kantharia, Government Pleader.
V.A. Tikam 1/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
Rest of the order remains as it is. The original order
dated 11th May, 2021 shall stand corrected accordingly,
which reads thus:
" IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 11232 OF 2021
X (through her mother
who is her legal guardian) ..... Petitioner
Vs.
The State of Maharashtra & Ors. ..... Respondents
Mr. Ashley Cusher, Advocate for Petitioner.
Ms. P.H. Kantharia, GP a/w Ms.Uma Palsuledesai, AGP, for
Respondent/State.
Mr. Sandip Marne, Advocate for Respondent No. 3.
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 filed by petitioner who is a minor girl
V.A. Tikam 2/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
aged 13 years and 9 months, through her father, for
permission to undergo medical termination of pregnancy at
J.J. Hospital, Mumbai in her 24th week of pregnancy.
4. It is mentioned in the petition that an FIR was lodged
at Rabale Police Station, Navi Mumbai under sections 376
(2) (n) and 376 (3) of the I.P.C. and under sections 4 & 6 of
the Protection of Children from Sexual Offences, Act, 2012.
The Petitioner's mother has submitted that she is a
vegetable vendor and the accused used to visit their shop on
regular basis and at that time her victim daughter got
acquainted with accused. As a result of sexual offence, the
victim became pregnant. In February 2021, Petitioner's
mother noted that the Petitioner's abdomen area was
bloated but ignored the same due to Petitioner's eating
habits. However, in April 2021 Petitioner realised that she
has no menstruation for past four months and so took her to
Rajamata Jijau Hospital, Airoli for check-up, where it was
found that Petitioner was pregnant for 23 weeks. The FIR
was lodged on 30th April 2021. Since the pregnancy had
exceeded the statutory period of 20 weeks prescribed under
the Medical Termination of Pregnancy Act, 1971 (for short,
'MTP Act'), the petitioner is seeking permission from this
court to terminate her pregnancy.
5. We have heard Mr. Cusher, 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
V.A. Tikam 3/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
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
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 of Sir. J. J. Group of Hospitals to submit a
report about permitting medical termination of Petitioner's
pregnancy to this Court, stated to be carrying twins.
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 twin foetuses or the pregnant minor
mother. Pregnant minor and her parents do not
wish to continue the pregnancy. The minor (13
years and 10 months old) is anguished with the
V.A. Tikam 4/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
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.
Termination of pregnancy at 24 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 24 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 24 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."
V.A. Tikam 5/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
9. The opinion of the committee mentions that the
pregnancy is of 24 weeks. The members of the Board have
opined that 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 and that termination of pregnancy at 24 weeks will
carry risks similar to delivery at term and though at 24
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. It was therefore recommended 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
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.
V.A. Tikam 6/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
(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 of the pregnant woman's actual or
reasonably foreseeable environment.
(4)(a) No pregnancy of a woman, who has not
V.A. Tikam 7/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
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."
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 13 years and 10
months there is an inherent risk to her life. The only
difficulty in the present case is that the statutory period of
24 weeks is over, more than seven weeks ago. The petitioner
has entered into 24th week of her pregnancy and, therefore,
the MTP Act does not permit medical termination of
pregnancy in such cases.
V.A. Tikam 8/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
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
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 filed 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
V.A. Tikam 9/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
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.
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
V.A. Tikam 10/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
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
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
amendment, 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.
V.A. Tikam 11/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt
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 mother has been made aware of 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, finger printing/mapping and
the Investigating Officer 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
V.A. Tikam 12/14
::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::
2- NOB WPL 11232 of 2021.odt i. The petitioner is permitted to undergo medical termination of pregnancy as per Committee's report dated 10th May 2021, at Sir. J. J. Group of Hospitals, Mumbai.
ii. The Dean of the J. J. Group of Hospitals shall ensure that the procedure is performed at a place which satisfies all the requirements of the MTP Rules 2003 and the procedure shall be conducted by the Medical Practitioner who satisfies the conditions laid down under those rules.
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 Officer 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.
V.A. Tikam 13/14 ::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::2- NOB WPL 11232 of 2021.odt 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 Officer who is conducting investigation in the present case."
(ABHAY AHUJA, J.) (K.K.TATED, J.) V.A. Tikam 14/14 ::: Uploaded on - 13/05/2021 ::: Downloaded on - 13/05/2021 23:17:38 :::