Supreme Court: In an application filed in the 26-week pregnancy case , wherein a married couple filed a writ petition for termination of pregnancy on the grounds of her mental condition that do not permit her to raise another child; and on financial reasons, the three Judge bench of Dr DY Chandrachud*, CJI, J B Pardiwala and Manoj Misra,JJ. while allowing the application for recall of the order dated 9 —10-2023, did not accede to the prayer for the medical termination of the pregnancy. Further, it said that the decision of whether to give the child up for adoption is entirely that of the parents
Facts: The petitioner is a married woman of twenty-seven years. She and her husband have two children, the younger of which is about one year old. She filed the petition under Article 32 for directions to the respondents to permit medical termination of her ongoing pregnancy. The petitioner states that she did not discover that she was pregnant until after twenty weeks of the pregnancy had elapsed because she had lactational amenorrhea. As a result of lactational amenorrhea, women who are breastfeeding do not menstruate. Therefore, she did not realize that the absence of menstruation was indicative of pregnancy. The petitioner stated that she visited the gynaecologist for the first time after the delivery of her second child because she was feeling weak, nauseous, dizzy and experiencing abdominal discomfort. She underwent an ultrasound scan, upon which she realized that she was pregnant. The pregnancy was estimated to be around twenty-four weeks at that time.
Two Judge Bench verdicts
By order dated 9-10-2023, the Court allowed the petition and permitted the medical termination of the pregnancy on the ground that continuing with the pregnancy could seriously imperil the mental health of the woman.
On 10-10-2023, a doctor from AIIMS (who was a member of the Medical Board which examined the petitioner) emailed the Additional Solicitor General (‘ASG’) stating that the foetus has a strong chance of survival and seeking directions from the Court as to whether the foetal heartbeat ought to be stopped.
On 10-10-2023, the ASG mentioned the case before the Bench presided over by the Chief Justice. The Chief Justice constituted the same two-Judge Bench comprising of Kohli, J. and Nagarathna, J. to hear the application for recall of the order dated 9 —10-2023 and the case was directed to be notified on the next day in the sitting list of 11-10- 2023.
The two-judge bench delivered a split verdict. Hima Kohli, J. held that her judicial conscience prevented her from allowing the prayer in view of the email sent to ASG. Per Contra, Nagarathna, J., held that the order dated 9-10-2023 ought not to be overturned , as the interest of the mother, who already had two children and would deliver a third child within a year of delivering the second, must be given preference; the socio-economic conditions and the mental state of the petitioner must be considered by the Court; the decision of the petitioner ought to be respected and must not be substituted by the decision of the Court; and a foetus is dependent on the mother and cannot be recognized as a personality apart from that of the mother as its very existence is owed to the mother. Following the split verdict, the petition was directed to be listed before the present three judge Bench.
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Three Judge Bench verdict
On 13-10-2023, the Court passed an order calling for a further report from AIIMS on certain specific issues.
The Court noted that the Medical Board said that no abnormality has been detected in the foetus; the continuation of the pregnancy would not be jeopardised by the medication which the petitioner is currently taking; and the petitioner has a history of postpartum psychosis which is currently being controlled on medication.
Medical termination of pregnancies
The Court said that the termination of pregnancies is governed by the Medical Termination of Pregnancy Act, 1971, (‘MTP Act’) and the rules framed under it. The MTP Act is a progressive legislation which regulates the manner in which pregnancies may be terminated. Section 3 spells out certain conditions which must be satisfied before a pregnancy can be terminated. The design of the statute makes it evident that saving the life of the pregnant woman is of paramount importance, notwithstanding the length of the pregnancy. Further, the provisions of Section 3(2) relating to the length of the pregnancy shall not apply to the termination of a pregnancy by an Registered Medical Practitioner, where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. The Medical Board has the power to allow or deny the termination of a pregnancy the length of which is beyond twenty-four weeks.
The Court noted that the outer temporal limit within which a pregnancy may be terminated is lifted in some cases.
What is the nature of the jurisdiction under which this Court is adjudicating this case?
The Court noted that the Union of India filed an application for the recall of the order dated 09 —10-2023 passed by a two-Judge Bench of this Court on the ground that one of the doctors on the Medical Board emailed the learned ASG, seeking a clarification of that order.
The Court said that that once a judgment or order attains finality, a party seeking to challenge the decision rendered may do so only by taking recourse to one of the following:
- Invoking the jurisdiction of the court to review the judgment or order;
- Preferring an appeal against the judgment or order (where an appeal lies); or
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In the case of the Supreme Court, filing a curative petition
The Court said that the practice of filing applications for recall orders, sometimes be an abuse of the process of the law. In the present case, there was no intention to abuse the process of the law. However, the appropriate procedure which it ought to have followed would have been to file a Review Petition, accompanied by an application for urgent listing and an application for hearing in open court, given the urgency of the matter.
The Court said that under Article 142 of the Constitution, this Court has the power to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
The Court said that it is justified in exercising its jurisdiction under Article 142 in view of the following circumstances:
- This is not an ordinary civil case. Rather, it is one which concerns the viability of a medical termination of a pregnancy and the course of action to be adopted by the doctors based on the development of the foetus.
- Certain aspects of the case which ought to have been brought to the attention of this Court came to light after the order dated 9-10-2023.This was not within the control of any of the parties to the case but was the result of the actions of a third party altogether (the Medical Board). However, this information could have had a bearing on the directions issued by this Court.
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There was immense urgency in this matter.
Can the relief sought in the writ petition be granted?
The Court said that the length of the pregnancy has crossed twenty-four weeks. It is now approximately twenty-six weeks and five days. The Court did not permit medical termination of the pregnancy for the following reasons:
- Having crossed the statutory limit of twenty-four weeks, the requirements in either of Section 3(2B) or Section 5 must be met;
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There are no “substantial foetal abnormalities” diagnosed by a Medical Board in this case, in terms of Section 3(2B).
The Court also called for a second medical report from AIIMS to ensure that the facts of the case were accurately placed before it and no foetal abnormality was detected.
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Neither of the two reports submitted by the Medical Boards indicates that a termination is immediately necessary to save the life of the petitioner, in terms of Section 5.
Thus, the Court did not accede to the prayer for the medical termination of the pregnancy.
[X v UOI , 2023 SCC OnLine SC 1338, decided on 16-10-2023]
Judgment Authored by: Dr. Justice DY Chandrachud
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