Bombay High Court
Jay Sandeep Gore vs State Of Maharashtra Thru The Prin. ... on 11 May, 2021
Bench: K.K.Tated, Abhay Ahuja
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1212 OF 2021
X ..... Petitioner
Vs.
The State of Maharashtra ..... Respondent
Ms. Ruchita Padwal i/b Ms. Aditi Saxena, Advocate for
Petitioner.
Mrs. Ashwini Purav, AGP for State/Respondent.
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. The Petitioner has been named 'X' in order to protect
her identity.
3. This Petition is fled by the Petitioner mainly for
permission to undergo medical termination of pregnancy for
the fetus diagnosed with complex cyanotic congenital heart
disease at the medical facility of her choice.
4. It is the case of Petitioner that she is into 22 nd / 23rd
week of pregnancy. The Petitioner underwent the obstetrics
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examination at the gestational age of 20 weeks on 24 th April
2021, where it was found that the axis of the heart was
abnormal and was placed more to left side, muscular VSD
was noted, pulmonary artery was small in calibre, there
was mild dilation of right atrium and detailed fetal echo
cardiography was advised. Thereafter, on 26th April 2021 at
the gestational age of 21 weeks, Petitioner underwent fetal
doppler echocardiagraphy, where the following impression
was indicated:-
"a) Cardiac axis is deviated to the left.
b) A large permembranous VSD.
c) Common Arterial Trunk (Type I) with dysplastic
truncal valve.
d) Hypertrophied right ventricle.
The prognosis was guarded."
Thereafter, the Petitioner underwent complete obstetrics
examination on 28th April 2021, where following was
opined :-
"These fndings could be sporadic or associated with
genetic anomalies like 22q11 deletions. The prognosis of the
heart defect is extremey guarded with baby requiring
multiple surgeries and limited quality of life. Dr. Rahul Saraf
shall counsel the couple regarding the same."
5. The Pediatric cardiologist's opinion dated 29th April
2021, refers to existence of complex congenital heart
disease, where the common arterial trunk with atrial and
ventricular septal defects have been noticed in the images.
It has been advised that sometimes such lesions are
associated with genetic abnormality like 22q11 deletion
syndrome.
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6. The Petitioner has stated in her Petition that she has
desire to terminate the pregnancy in view of the aforesaid
diagnoses. However, even though the amended Section 3(2)
(b) (ii) of the Medical Termination of Pregnancy Act, 1971
(the "MTP Act"), permits the same upto a gestation period
of 24 weeks, but as the effectiveness of the said
amendments have not yet been notifed, the Petitioner is left
with no option other than to fle the present petition.
7. Learned counsel for the Petitioner has relied on
Judgments passed by the Hon'ble Supreme court, as well as,
passed by different Division Benches of this Court dealing
with the issue of granting permission for termination of
pregnancy even after a statutory period under the MTP Act.
8. In view thereof and considering the ration laid down
in these judgments, vide order dated 6 th May 2021, this
Court had directed the Petitioner to approach the Medical
Board in Sasoon Hospital, Pune for her medical
examination. The Medical Board was directed to conduct
the examination and submit its report. Accordingly, the
medical examination was conducted and the report dated
7th May 2021 of the Board was submitted to this Court. The
concluding paragraph of the report reads thus :-
"Key recommendations of the panel (if any) with
justifcation:
On clinical examination mother has 23 weeks and
6 days pregnancy and no medical and obstetric
complication.
In view of complex cranial and spinal
abnormalities in the fetus on sonography such
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baby carries poor prognosis and if born alive will
have signifcant morbidity and ortality. Thus
medical termination of pregnancy is
recommended with kind permission of Hon'ble
High Court."
9. In the above backdrop, we have considered various
aspects of the matter in the light of ratio of the various
Judgments of the Hon'ble Supreme Court and of this Court.
10. The MTP Act was enacted in the year 1971. Section 3
of the MTP Act reads as under:-
"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
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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."
11. Under Section 3 (2) (b) of MTP Act, the maximum
period during which the pregnancy can be terminated is
prescribed as 20 weeks. The circumstances under which the
pregnancy can be terminated are set out in Section 3 of the
MTP Act. One such circumstance, as mentioned in Section
3 (2) (b) (ii) is that termination of pregnancy can be
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allowed if there was a substantial risk that if the child were
born, it would suffer from such physical or mental
abnormality as to be seriously handicapped.
12. 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."
13. In the instant case, the Medical Board of the B. J.
Government Medical College and Sasoon General Hospital,
Pune, consisting of nine specialists including Gynecologist,
Pediatrician as well as Radiologist, Microbiologist,
Cardiologist, Medicines, CVTS, Psychiatrist, has opined that
the fetal ultra-sonography shows complex cyanotic
congenital heart disease, which will require multiple
complex cardiac surgeries after birth and that there is
increased risk of morbidity and mortality with each
surgery, where prognosis remains poor, due to which there
is risk of mental trauma to the mother. The medical
termination of pregnancy is recommended subject to the
permission of the Court.
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14. In the circumstances, we are guided by the law as
settled by a Division Bench of this Court (Coram: A.S. Oka &
M.S. Sonak, JJ.) in Writ PetitionNos.10835/2018,
9748/2018 & OS Writ Petition(L) No.3172/2018, decided on
3.4.2019. 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.
16. In paragraph-79, the Division Bench observed that, in
a situation where there was substantial risk that if the child
were born, would suffer from deformities and diseases, and
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if the pregnant mother is forced to continue with her
pregnancy, merely because the pregnancy has extended
beyond the ceiling of 20 weeks, there would arise a serious
affront to the fundamental right of such mother to privacy,
to exercise a reproductive choices, to bodily integrity, to her
dignity. It was further observed that the principle of liberal
or purposive construction will 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 right to live with human dignity.
17. The Division Bench ultimately held that, 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
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
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State to constitute Medical Boards for this purpose, which
direction appears to have found placed in the amendments
of 2021, though yet to be notifed.
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 was
offered best medical treatment available in the
circumstances and in such cases if the parents of such child
were not willing to or were 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. In forming our opinion, we are also relying on
the judgments passed by the Hon'ble Supreme Court in the
case of X and others Vs. Union of India and others, reported
in (2017) 3 SCC 458 and in the case of Meera Santosh Pal
and others Vs. Union of India and others in Writ
Petition(Civil) No.17/2017 decided on 16.1.2017.
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21. As mentioned earlier, the Medical Board has opined
that if this Court permits, the medical termination of
pregnancy is recommended. It was specifcally reported
that the fetal ultra-sonography shows complex cyanotic
congenital heart disease, which will require multiple
complex cardiac surgeries after birth and that there is
increased risk of morbidity and mortality with each
surgery, where prognosis remains poor.
22. Considering the above discussion, the following order
is passed:
ORDER
i. The Petitioner is permitted to undergo medical termination of pregnancy as per Medical Board's opinion dated 7th May 2021, at a medical facility of her choice at the earliest. However such procedure shall be conducted at the Medical Center which has all the necessary permissions issued under the Maharashtra Termination of Pregnancy Rules, 2003 and the procedure shall be conducted by a Medical Practitioner who satisfes the conditions laid down under those Rules.
ii. 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 its life.
iii. In case, if the child is born alive and if the Petitioner is not willing to take responsibility of such a child then the State and its agencies will have to assume full responsibility for such child.
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iv. Rule is made absolute in the aforesaid terms.
v. Writ Petition is disposed of accordingly.
vi. No order as to costs.
vii. All concerned parties to act on the authenticated copy of this order.
(ABHAY AHUJA, J.) (K.K.TATED, J.)
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