Case BriefsHigh Courts

Orissa High Court: Biswanath Rath J., allowed the petition in part and laid down comprehensive guidelines for the state to follow in like cases and interpreted the various provisions of The Medical Termination of Pregnancy Act, 1971 i.e. MTP Act, 1971; The Medical Termination of Pregnancy Rules, 2003, i.e. MTP Rules, 2003 and The Medical Termination of Pregnancy Regulations, 2003 i.e. MTP Regulations, 2003 (hereinafter referred) keeping in mind the intent of the legislation.

The background of the case is that a wife of a labourer found unnatural behaviour in her physically disabled and mentally retarded daughter and on close scrutiny and soliciting came to know that she has been raped pursuant to which an FIR has been registered against accused Sili Manjhi (as named by the victim daughter) under Sections 376(2)(1), 294 and 506 Penal Code, 1860. The victim on being medically tested by medical officers at the instance of police officials was not only found to be physically handicapped and mentally retarded but also pregnant of almost four months. The instant writ petition has been filed by a desperate mother seeking permission for terminating the pregnancy of the victim daughter who is unable to take care of herself properly due to mental and physical incapacity under the provisions of MTP Act, 1971; MTP Rules, 2003 and MTP Regulations, 2003.

Counsel for the petitioner S.C. Puspalaka, A.K. Tarai, T. Priyadarshini and T. Barik prayed to grant necessary direction to the competent authority as deem fit and proper and also for granting appropriate relief not only to the victim but also to all such who have also become victim in the process.

Counsel for the State submitted that as per the report dated 13-08-2020 given by a committee formed in terms of Regulation 3 of the MTP Regulations, 2003 it is found that the victim girl is mentally retarded and that she was pregnant for four months though at some places it is mentioned as 16 weeks. Due to conflict in the duration of pregnancy as per medical examination, a second report was conducted. According to the second report dated 05-09-2020, the pregnancy period was 24 weeks. Due to such a huge difference in results in the two reports in just about 23 days, a third examination was suggested to arrive at a just conclusion.

The third and final report suggested no possibility of termination of pregnancy as termination will endanger the life of mother.

After the final report, counsel for petitioner submitted that petitioner has a disastrous financial condition and cannot take care of both victim and her child involved unless she is provided with appropriate financial and medical support.

After perusing Sections 3, 4 & 5 of the MTP Act, 1971, Rule 5 of the MTP Rules, 2003 and Regulation 3 of MTP Regulation, 2003 it is to be stated that termination of pregnancy can be allowed, if the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks but subject to however under the opinion of the two registered Medical practitioners on the issues prescribed therein and also taking care of the provisions at the Explanation ‘I’ therein. After perusal of the “Statement of Objects and Reasons” of MTP Act, 1971which states as under

 “3. There is thus avoidable wastage of the mother’s health, strength and sometimes, life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been conceived (1) as a health measure – when there is danger to the life or risk to physical or mental health of the woman; (2) on humanitarian grounds – such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc., and (3) eugenic grounds – where there is substantial risk that the child, if born, would suffer from deformities and diseases.”

 Hence it is amply clear that the legislative intent of the Act is to provide for termination of pregnancies in such cases on humanitarian grounds subject to the opinion of the committee of doctors. The Court also expressed its dismay and agony towards the public authorities due to negligence however unintentional and the resultant default in the two reports due to which delay happened, the cost of which will be borne by the victim.

The judgments relied on were Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1 and Z v. State of Bihar, (2018) 11 SCC 572 excerpts of which are stated hereunder:

The legislative intention of the 1971 Act and the decision in Suchita Srivastava prominentaly emphasize on personal autonomy of a pregnant woman to terminate the pregnancy in terms of Section 3 of the Act. Recently, Parliament has passed the Mental Healthcare Act, 2017 which has received the assent of the President on 7-4-2017.

 “ It has to be borne in mind that element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman are not hindered. The fundamental consent relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be over-emphasised.”

Hence as per the medical reports submitted by the doctors, and the submissions made post that on behalf of the petitioners regarding taking care of the victim and its child, if financial help provided, the Court declining the relief of termination of pregnancy under the compelling reasons issued necessary direction to the State Government as a matter of future guideline involving case of this nature.

 Specific Guidelines issued for the case at hand (verbatim reproduced)

(A) Considering that the victim is suffering on account of rape committed on her and the suffering for which the authorities of the State are responsible, this Court directs the State of Odisha to pay as an immediate measure, by way of exgratia grant, a sum of Rs 5,00,000 (Rupees Five lakh) within seven days of receipt of copy of the judgment, to the victim to be kept in long term Fixed Deposit in any Nationalized Bank in the name of victim to be renewed from time to time with operation of such account by the mother of the victim. Annual interest on such Fixed Deposit will be credited to the passbook so maintained with authorization to the mother of the victim herein, to utilize the same towards her daughter’s expenditure till survival of the victim, whereafter the child will be entitled to this amount.

(B) Similarly a further sum of Rs 3,00,000 (Rupees Three lakh) in case of male child and in the event the victim gives birth to a girl child then looking to the suffering of the girl child throughout her life, for the peculiar circumstance involved herein, a sum of Rs.5,00,000/- (Rupees Five lakh) to at least make sure that the girl child does not suffer throughout her life, amount as appropriate, shall also be released by way of ex-gratia grant in favour of child within at least ten days of such birth. Here also the amount will be kept in Fixed Deposit in any nationalized Bank by opening a Savings Bank Account in the name of the child. This Account will also be run in the name of minor child to be operated by the maternal Grandmother with scope for renewal of the Fixed Deposit from time to time at least till the child becomes major. Interest so yielded through the F.D. shall be accounted to the SB Account Passbook in the name of minor and to be operated by maternal grandmother only and utilized for the purpose of meeting expenditure on child. The child will ultimately be the owner of such amount once he/she becomes major.

(C) Amount granted by way of ex gratia under Item Nos.1 and 2 shall however be in addition to grant of any payment to the victim and the child on application of The Victim Compensation Scheme under the provisions of Section 357-A of the Code of Criminal Procedure decided by trial court or any other authority competent to do so.

(D) Considering the mental condition of the victim and financial condition of the family, utmost care of the victim is to be taken in continuation of her pregnancy. The best medical facility be made available so as to ensure proper care and supervision during the period of pregnancy as well as postnatal care with the supervision of Doctors in the S.C.B Medical College & Hospital, Cuttack with assistance of team of Doctors at the District Medical Level. Keeping in view the report dated 12.09.2020 the delivery of the victim shall take place only in the S.C.B. Medical College & Hospital, Cuttack.

(E) Looking to the mental retardness along with physical handicapness in the victim, there may be periodical check-up of the victim by a Psychiatric Expert and other related doctors required on requisition of the CDMO. The Superintendent, SCB Medical College and Hospital, Cuttack will ensure such assistance.

(F) The entire transport, medical and medicinal expenses including accommodation of the victim and her mother, if necessary during treatment, shall be the responsibility of the District Administration.

(G) The entire education of the child will be the responsibility of the State.

(H) In the event any grievance arises involving providing any other assistance to the victim and/or the child, it shall be open to the petitioner to first approach the Collector of the District on the basis of direction herein and in case of failure in responding to the genuine asking, it will be open to the victim’s mother and child on attaining his/her majority to approach the High Court of Orissa in filing appropriate application.

(I) Looking to the condition of victim, this Court also observes, the child to be born shall be given proper treatment and nutrition by the State and if any medical aid is necessary it shall also be provided to him/her by the State at least till the child is sufficiently grown up.

(J) Looking to the family of the victim runs on the sole income of the husband of the petitioner being a labourer, to see that the petitioner while maintaining her family will also be able to look after the victim and in future the child to take birth, this Court directs the District Collector to depute a competent officer to the residence of the petitioner to assess the capacity of subsistence in her and based on detailed assessment of their survivability, the Collector shall take decision on providing further assistance through any of the Central Scheme available for the purpose, if any, by completing the entire exercise within four weeks from the date of judgment.

(K) To protect the future of child and to see there is no mismanagement of fund provided both to the victim and the child by direction of this Court, this Court further directs that the Secretary, District Legal Services Authority shall have supervision on the spending by the mother against the account involving both the victim as well as the child so long as the victim survives and the child becomes major. The Secretary is also authorized, in the event he finds any irregularity in the spending of funds or mismanagement of funds involved by the mother, the petitioner herein, involving both the accounts, may seek leave of the High Court for any other mode of operation.

General Guidelines issued (verbatim reproduced)

(i) Once an incident of rape; be it on minor, minor and mentally retarded, minor and physically handicapped, unmarried major, married major, mentally retarded major and physically handicapped major is made to Police within eight weeks period, the Police and the C.D.M.O will take consent of the guardian-mother in case of minor, minor and mentally retarded, minor and physically handicapped as to whether they are interested to continue with pregnancy or interested in termination? In case of major and physically handicapped, consent of such victim and in case major but mentally retarded, consent of mother of such victim shall be taken within same time as to whether the victim should continue with pregnancy or interested in termination. This Court here clarifies, in case there is no interest shown for continuing with pregnancy, immediately after the 1st report of Committee the local Chief District Medical Officer should undertake the exercise of termination but in terms of the Medical Termination of Pregnancy Act, 1971. In case interest for termination is not shown then-Police authority along with Chief District Medical Officer is to take care of both mother and child in womb involving pre-birth care and postbirth care for at least till a period of one year after birth takes place. Further, in case of an unmarried major and married major, procedure indicated hereinabove shall also be followed but however with consent of major girl. In case of termination of pregnancy, the C.D.M.O shall take DNA sample of child to ensure its handing over to Investigating Agency, so as to be forwarded to the concerned Court for requirement, if any, there in the criminal trial.

(ii) To maintain secrecy of her pregnancy and termination, the State will ensure, if necessary, to handover such mother to remain in custody of Woman Rehabilitation Centre until her delivery and convalescence.

(iii) In case victim and her mother wish to live in their own residence, they may do so but will be provided all medical help by the State Authority at the cost of the State.

(iv) In required cases, the State will also permit the girl’s mother to either live with her or regular visit to give moral and emotional support and all medical support will be extended by the State through such Institution.

(v) In case of involvement of child through physically handicapped and/or mentally retarded woman subject to medical assessment that such mother is unable to take care of the child born provided there is no elder member coming forward to take care of such child, keeping in view the welfare of the child he or she may be taken care under the Juvenile Justice care mechanism involving agency engaged for such purpose and for about at least 12 months such child will not be given in adoption. This is, however, if there is nobody in the family to take care of such child in course of time.

(vi) In the entire process, all concerned will ensure that secrecy of pregnancy, anonymity of the petitioner and the child to be born is maintained.

vii. In cases it shall equally be the responsibility of the applicant society to ensure that the child does not know about his/her mother and of course about the incident.

viii. There should be immediate grant of exgratia-cum compensation subject to the further grant of victim compensation involving the criminal trial.

(ix) Considering such incidence occurring for failure of Law and Order Authority in case of requirement of high level treatment of rape victim or the child born in such process, the victim and/or the child will be provided the highest level of treatment at the cost of the State including the attendants journey, accommodation and fooding cost, if any.

(x) Report of the Doctor or team of Doctor, as the case may be, obtained with all promptitude and any delay at the level of State Authority shall lead to fixation of accountability and responsibility against all such involved.

(xi) When a pregnant mother is required for examination by a Medical Board for the purpose of termination, it must include apart from Obstetrics and Gynecology also (i) Paediatrics, (ii) Psychiatry/Psyochology, (iii) Radiology/Sonography, (iv) from field of Medicine with inclusion of tests involving foetus also Mental Health Care Act, 2017.

(xii) Constitution and establishment as expeditiously as possible Medical Boards under the provisions of MTP Act, 1971, in each District to fasten examination and effective action involving such cases.

(xiii). District Level Committees to ensure that there are sufficient approved places in terms of Section 4(b) of the MTP Act, 1971 in each districts of the State of Odisha. Chief District Medical Officers involved undertake periodic instruction of such approved places following rule 6 of the MTP Rules, 2003 and take immediate measure to remove difficulties if any. State in its appropriate Departments will have the obligation to co-operate in such matters.

(xiv) If a woman reports with a pregnancy resulting from an assault, she is to be given the report of undergoing an abortion and protocols for the Medical Termination of Pregnancy Act are to be followed. Further with preservation of products of conception (POC) be sent to proper custody as evidence and other required purpose under the direction of the Court of competent authority including DNA Test, if any.

(xv) There should also be strict following of User Handbook on Protection of Children from Sexual Offences Act, 2012.

The copy of the judgment was also directed to be supplied to Secretary to Government in Health Department, Secretary to Government in Women & Child Care Department, Secretary to Government in Home Department, Chairperson of the State Women Commission, Director, Medical Education and Technology and Superintendents of all the three Premier Medical College & Hospital of the State and also to all the District Judges, who in turn shall bring the same to the notice of the Sessions Court(s) dealing with sexual offences, the Presiding Officer, POCSO Court, the Principal Magistrate of Juvenile Justice Board under its jurisdiction and to the Member Secretary of State Legal Services Authority for bringing it to the notice of the Chairman and the Secretary of District Legal Services Authority for their cooperation and coordination and its effective implementation.

In view of the above, the petition allowed in part and disposed off.[Runa Majhi v. State of Odisha, WP (C) No. 21947 of 2020, decided on 14-09-2020 ]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Can Medical Termination of Pregnancy be allowed beyond 20 weeks gestation period?

Bombay High Court: A Division Bench of Ujjal Bhuyan and R.I. Chagla, JJ., denied the termination of pregnancy to woman aged 39 years old as the gestation was beyond 20 weeks and medical board’s report had also recommended the same.

Petitioner sought a direction to respondent 2 along with a duly constituted medical board to examine the petitioner — whether the termination of pregnancy of petitioner is possible and further on consideration of the medical report to allow the petitioner to do so.

Petitioner states that she is a married woman and after her examination it was revealed that she was pregnant beyond 20 weeks.

She stated that pregnancy occurred as a result of failure of the contraceptive method and that because of a history of irregular menses, the petitioner did not suspect her pregnancy.

Petitioner claimed that she and her family were in no condition financially and neither was the petitioner who was 39 years old, mentally prepared to be a mother.

As petitioner’s pregnancy has crossed 20 weeks she approached the Court.

Contention placed by the counsel fo the petitioner was that, by placing reliance upon Explanation 1 to Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971:

“Where any pregnancy occurs as a result of failure of any device or method used by any married woman, as has happened in the present case, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”

Women would ideally prefer to prevent an unwanted pregnancy, and by forcing a woman to do continue with the pregnancy represents a violation of the rights of the woman’s bodily integrity.

Decision

High Court observed that petitioner was examined by the Medical Board on 20th June, 2020 and according to the board termination of pregnancy cannot be recommended for 2 reasons:

  • that the gestation age is beyond 20 weeks
  • that there are no valid indications for medical termination of pregnancy as per the said Act.

In the case of Sarmishtha Chakraborty v. UOI, (2018) 13 SCC 339

“Supreme Court considered the report of the medical board which revealed that the mother i.e. Petitioner wife would suffer mental injury if the pregnancy was continued and there would be multiple problems if the child was born alive. Medical board had arrived at the conclusion that in a special case of that nature, pregnancy should be allowed to be terminated even after 20 weeks.”

Hence only on limited grounds termination of pregnancy beyond 20 weeks can be allowed by the Court.

Abortion is often the only way out in a very difficult situation for a woman.

It is further held by this Court that if a woman does not want to continue with the pregnancy, then forcing her to do so is in violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.

In the present matter, Court’s opinion was that the reasons for medical termination of pregnancy beyond the statutory limit of 20 weeks as were stated by the petitioner were not valid grounds for medical termination of pregnancy.

Thus in view of the above termination of pregnancy was not allowed. [Rubina Kasam Phansopkar v. State of Maharashtra, 2020 SCC OnLine Bom 765 , decided on 07-07-2020]

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J. while allowing the present petition with regard to termination of pregnancy, stated that,

“…petitioner has been impregnated by an unknown person, consequent to her forced promiscuous physical relations.”

Petition by the present petition sought appropriate directions for termination of her pregnancy.

It has been stated in the petition that petitioner was brought to Pali (Rajasthan) by one of her relatives and handed over to Jannat Bano who runs a brothel. Petitioner was brought in without her consent and forced to work as a sex worker.

Further it was averred by the petitioner that consequent to her coitus with one of the hundreds unknown, she had been impregnated.

With a conception of about 20 weeks when petitioner approached medical practitioner for termination of her pregnancy, they flatly refused, citing that the pregnancy was of more than 20 weeks.

Bench, with a view to ward off possibility of pressure or coercion, deemed it expedient to record petitioner’s statement, wherein petitioner stated that she had been forced in fornication by Jannat Bano against her wishes.

Adding to the above, she stated that a year ago she had conceived and the termination of pregnancy was facilitated and financed by Jannat Bano. But at this time, she was note permitted by Jannat Bano to get rid of her pregnancy and instead wanted the petitioner to deliver the baby os that he/she can be either used or sold for money.

Petitioner also asserts that she wants to get rid of the sex racket and lead a respectable life.

Court stated that, medical termination of pregnancy is permissible for purpose of protecting the victim, from the trauma of being ravished, coupled with the fact that the baby to be born will remain with her and continue to remind her of the agony she has suffered during her confinement in brothel.

It was thus observed that,

“…abortion is imperative, so that petitioner can settled in life and the baby does not emerge as a snag in her possible peaceful life.”

If the child in womb is allowed to be born, his/her mental agony will be no less. He/she will always be reminded of petitioner’s past and the fact that his/her paternity is not known, will continue to throb his/her heart and hammer his/her mind and soul.

Court also opined that, petitioner’s mental agony is comparable to a victim of rape.

Thus, in view of the above, petition is allowed and Superintendent of Umaid Hospital, Jodhpur is directed to carry out the medical termination of petitioner’s pregnancy. [Muskan v. State of Rajasthan, 2020 SCC OnLine Raj 396, decided on 09-04-2020]

Legislation UpdatesStatutes/Bills/Ordinances

With the passage of time and advancement of medical technology for safe abortion, there is a scope for increasing upper gestational limit for terminating pregnancies especially for vulnerable women and for pregnancies with substantial foetal anomalies detected late in pregnancy. Further, there is also a need for increasing access of women to legal and safe abortion service in order to reduce maternal mortality and morbidity caused by unsafe abortion and its complications. Considering the need and demand for increased gestational limit under certain specified conditions and to ensure safety and well-being of women, it is proposed to amend the said Act. Besides this, several Writ Petitions have been filed before the Supreme Court and various High Courts seeking permission for aborting pregnancies at gestational age beyond the present permissible limit on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women.

Accordingly, the Medical Termination of Pregnancy (Amendment) Bill, 2020, inter alia, provides for,—

(a) requirement of opinion of one registered medical practitioner for termination of pregnancy up to twenty weeks of gestation;

(b) requirement of opinion of two registered medical practitioners for termination of pregnancy of twenty to twenty-four weeks of gestation;

(c) enhancing the upper gestation limit from twenty to twenty-four weeks for such category of woman as may be prescribed by rules in this behalf;

(d) non applicability of the provisions relating to the length of pregnancy in cases where the termination of pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board;

(e) protection of privacy of a woman whose pregnancy has been terminated.

*Read the detailed bill here: The Medical Termination of Pregnancy (Amendment) Bill, 2020


Lok Sabha

Amendments to existing lawsLegislation Updates

The Medical Termination of Pregnancy (Amendment) Bill, 2020 was introduced in Lok Sabha on 02-03-2020.

The said bill has been introduced to further amend the Medical Termination of Pregnancy Act, 1971.

The proposed Bill is a step towards the safety and well-being of women and will enlarge the ambit and access of women to safe and legal abortion without compromising on safety and quality of care. The proposal will also ensure dignity, autonomy, confidentiality and justice for women who need to terminate the pregnancy.

Medical Termination of Pregnancy (Amendment) Bill, 2020 provides for —

(a) requirement of opinion of one registered medical practitioner for termination of pregnancy up to twenty weeks of gestation;

(b) requirement of opinion of two registered medical practitioners for termination of pregnancy of twenty to twenty-four weeks of gestation;

(c) enhancing the upper gestation limit from twenty to twenty-four weeks for such category of woman as may be prescribed by rules in this behalf;

(d) non-applicability of the provisions relating to the length of pregnancy in cases where the termination of pregnancy is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board;

(e) protection of privacy of a woman whose pregnancy has been terminated.

Here’s the link to the Bill: Medical Termination of Pregnancy (Amendment) Bill, 2020


Lok Sabha

Case BriefsHigh Courts

“Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven”

Madhya Pradesh High Court: The instant petition was contemplated by S.K. Awasthi, J., in which the petitioner who was the father of the rape victim sought termination of pregnancy for his 14 years old daughter.

The unfortunate facts were that a girl about 14 years old was raped and because of the alleged crime, she got pregnant. The girl was 22 weeks pregnant and as per the reports she was fit for termination of pregnancy.

The Hospital in its report submitted that pre-anesthetic & medical checkup and opinion of consultant Anesthesia and Medicine, Psychiatry was required in case if the medical method of termination failed and surgical intervention was required, however, the case was suitable for termination of pregnancy under the Medical Termination of Pregnancy Act, 1971.

The counsel for the petitioner Amit Dubey submitted that the report by the competent hospital reflected that abortion could have been carried out with the permission of the Court. The relevant statutory provisions i.e. Sections 3 and 5(1) of Act, 1971, stated when pregnancies were to be terminated and one of the clauses was, ‘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 physical or mental health’; as the girl was very young the counsel argued that the pregnancy might ruin her mental health and there was a risk to the life of the girl. It was further contended that the Act of 1971, also provided for an explanation clause i.e., ‘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.’

The counsel relied on Murugan Nayakkar v. Union of India, 2017 SCC OnLine SC 1902, where the Supreme Court granted termination of pregnancy to a 13-year-old girl who was a victim of rape and sexual abuse, the Supreme Court had held that, “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.”

The Court observed that while interpreting the provisions of Section 5 of the Act of 1971, it was to be borne in mind that principle that the section must be construed as a whole whether or not one part was a saving clause and similarly elementary rule of construction of section was made of all the parts together and that it was not permissible to omit any part of it; the whole section must be read together. Hence, the termination was granted on the said grounds.[Ritika Prajapat v. State of M.P, 2019 SCC OnLine MP 1687, decided on 18-07-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: A writ petition was contemplated by Vivek Rusia, J. for allowing medical termination of pregnancy of the said petitioner-wife. The petitioners requested the Court for termination of pregnancy as the report of the Radiologist showed that the right kidney of fetus was not visible and there were other complications. On the basis of the aforesaid report, the treating Doctor gave an opinion that after birth, the child may not survive even for 2-3 days.

The petitioner contended that the age of fetus was more than 20 weeks therefore, under the provisions of Medical Termination of Pregnancy Act, 1971 the doctor had refused to terminate her pregnancy. The learned counsel for the petitioners had relied upon the judgment in X v. Union of India, 2016 (14) SCC 382, where the Supreme held that Section 5 of the Act laid down the exception to Section 3 if two registered Medical Practitioner gave the opinion of in good faith in respect of the termination of pregnancy to save the life of pregnant women. In the view of the aforesaid section, the Supreme Court had granted liberty to the petitioner to terminate her pregnancy. The counsel further placed reliance upon the judgment in Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC 57, where the Supreme Court had permitted termination of pregnancy when the girl was into her 24th week of pregnancy. The Court held that “it is difficult for us to refuse the permission to the petitioner to undergo medical termination of pregnancy. It is certain that the fetus, if allowed to born, would have a limited life span with serious handicaps which cannot be avoided. It appears that the baby will certainly not grow into an adult.

It was requested by the petitioner to constitute a Committee of Doctors who can suggest whether the termination of pregnancy shall be allowed or not.

Court had already ordered the competent Medical Board to examine the petitioner-wife’s health condition and verify the report submitted. To the said order, the Board submitted their opinion and suggested that such termination was not possible after 20 weeks of pregnancy. The Court further on the request of the petitioner directed the respondents to constitute a Committee of 5 senior doctors immediately and the said Committee is directed to examine the physical condition of petitioner 1 and if it is found that it is not dangerous to her life, the Committee may proceed with the termination of her pregnancy.[Roshni v. State of M.P., 2019 SCC OnLine MP 1122, decided on 06-06-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.M. Borde and N.J. Jamadar, JJ. allowed a petition for termination of pregnancy of the petitioner who was 24-weeks pregnant. The termination of pregnancy was allowed in view of fetal anomalies.

The petitioner was examined by Sonologist and certain congenital anomalies were reported. According to the petitioner and her husband, the continuation of pregnancy was not desirable since there was a substantial risk of the child to be born being seriously handicapped. The Court directed the Medical Board at B.J. Medical College, Pune to examine the case and file a report. In its report, the Committee opined that the “baby has fatal complex cardiac anomaly.”

Relying on its earlier decisions, the High Court observed: “Although, sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971 put a cap of 20 weeks for permitting the pregnant woman  to terminate the pregnancy, on consideration of Section 5, it would be logical to conclude that the contingencies referred in clauses (i) (ii) of sub-section 2(b) of Section 3 will have to be read in Section 5 of the Act and as such in an exceptional case, the request of a pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks can be considered.” In such view of the matter, the Court allowed the petition. HoD of Obstetrics and Gynaecology at B.J. Medical College was directed to carry out the termination of pregnancy forthwith.

Also, it was clarified that the doctors who had put their opinions on record shall have the immunity in the event of the occurrence of any litigation arising out of the instant petition.

It was also directed that in the event the child is born alive, the medical experts and the hospital concerned will have to assume full responsibility to ensure that child is offered the best medical treatment available in the circumstances, in order that it develops into a healthy child.

Further still, the Court directed that if parents of child are not willing to or are not in a position to assume the responsibility for child, then, the State and its agencies will have to assume full responsibility for such child and offer such child medical support and facilities, as may be reasonably feasible, adhering always to the principle of best interests of such child as well as the Statutory provisions in the Juvenile Justice Act.[Vaishali Pramod Sonawane v. Union of India, 2019 SCC OnLine Bom 932, decided on 07-06-2019]

Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., in his own words, departed from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 and allowed termination of 20-weeks pregnancy of a 12-year old rape victim.

The present matter was concerned with the question of allowing the termination of pregnancy of the victim child. Dr Mamata Pradhan, Chairperson of the Medical Board constituted by the Court clarified that termination of pregnancy of 20 weeks bears the serious risk, but it could be done and for that reason, the guardian of the victim girl had to give a qualified consent on fully understanding the consequences and risks involved in such termination.

After elaborate consultations with Dr Pradhan, victim’s mother (her guardian) informed the Court that there is no alternative but to get the pregnancy terminated. A. Bhowmik, Advocate for the petitioners submitted that the court may pass appropriate orders having regard to Supreme Court decision in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339 wherein reproductive choice was recognised to be an inseparable part of personal liberty protected under Article 21.

Having regard to such a situation, the High Court directed Dr Pradhan and her team to commence the procedure of termination of pregnancy of the victim. The Court observed, “Having considered the injury that might torment the mental health of this young girl, this Court has taken the undertaking made by the mother seriously. In the circumstance, the foetus be terminated forthwith, making a departure from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 for responding to the necessity created by human emergency.” The Court also recorded appreciation for B. Choudhary, Public Prosecutor and D. Sarma, Additional Government Advocate for their contribution. The matter was disposed of in the terms above. [Jhuma Roy v. State of Tripura, 2019 SCC OnLine Tri 80, Order dated 08-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of Bharati H. Dangre, J. allowed the termination of a pregnancy on grounds of it being a risky one as ‘multiple cardiac complications’ in the baby were expected.

Petitioner 1 was subjected to a medical examination and according to the opinion of the medical experts, the pregnancy was asked to be terminated since it posed risk and if the baby was given birth, it would have required multiple surgeries with high morbidity and mortality rate.

Further, the matter was directed to be placed before the Court so that the intended parents apprised of the report and would have accorded their consent. The intending father made a statement that he had gone through the report and noting the report and opinion of the doctors he gave his consent to the termination of pregnancy.

Thus, the High Court on noting the complications as stated by the doctors, directed for the termination of pregnancy on completing necessary formalities. [Kiran Kailas Gavhande v. Union of India, 2018 SCC OnLine Bom 7463, dated 28-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vibhu Bakru, J. allowed the termination of pregnancy of a minor whose fetus had already undergone a gestation period of 22 weeks.

In the present order, it was noted that the petitioner had approached the High Court for direction to respondents in regard of termination of her pregnancy even after being aware of the high risks involved with the same. The Court on interaction with the 16-year old rape victim noted that she insisted on the termination of pregnancy and seemed to be in considerable distress.

Further, the Court noted the observation of Dr Sanjay Agrawal, Director Professor of Psychiatry, who was of the view that the unwanted pregnancy was causing a considerable amount of distress to Ms X. Medical Board had submitted the report which indicated that abortions of about 22 weeks carry a higher risk of mortality and morbidity. The stated risk was explained to the petitioner as well as her father, both of whom were adamant that the pregnancy should be terminated.

Learned Counsel for the petitioner while citing various decisions of Supreme Court including Chanchala Kumari v. Union of India, WP(C) No. 871 of 2017 and Venkatalakshmi v. State of Karnataka, Civil Appeal No. 1538 of 2017, noted that the Court on examining the medical reports had permitted the termination even after 24 weeks of pregnancy.

Thus, the High Court keeping in consideration the above-stated allowed the petition and directed for the termination of pregnancy of the minor child. [X v. State (NCT of Delhi),2018 SCC OnLine Del 12891, Order dated 01-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of Ranjit More and Prakash D. Naik, JJ. heard a petition requesting termination of pregnancy of the petitioner’s daughter who was a victim of rape and was running into 27 weeks of pregnancy on the grounds that continuation of pregnancy would cause grave injury to the victim.

Relying on the medical report submitted by the Assistant Public Prosecutor which stated that “the petitioner’s daughter should be directed to continue pregnancy with medical and psychological support” and also on Section 3 of the Medical Termination of Pregnancy Act, 1971, the Court refused to interfere and dismissed the petition.

Section 3 of the MTP Act, 1971 states that a pregnancy may be terminated where the length of a pregnancy exceeds 12 weeks (before which a medical practitioner is permitted to terminate a pregnancy) but not 20 weeks, and at least two registered medical practitioners must be of the opinion, formed in good faith, that the continuation of the pregnancy would gravely injure the woman’s physical or emotional health. The Explanation provides that if the pregnancy has been caused by rape, the anguish caused by such a pregnancy would constitute grave injury to mental health of the woman. [Danbahadur Rajkaram Yadav v. State of Maharashtra, 2017 SCC OnLine Bom 8900, order dated 13.10.2017]

 

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ issued notice to the Central Government on the petition seeking framing of appropriate medico legal guidelines for urgent and safe termination of pregnancy under safe medical facilities including termination of pregnancies beyond 20 weeks in the exceptional cases.

The petition also sought for constitution of a committee for framing of appropriate medico legal guidelines for setting up a permanent mechanism for expedient termination of pregnancies beyond 20 weeks in the exceptional cases particularly involving rape survivors and women and abnormal foetus’s under safe medical facilities and with adequate inputs from an association of professionals & experts.

The Court, however, refused to entertain the payer where the petitioner had sought directions for urgent amendment of Section 3 of the Medical Termination of Pregnancy Act, 1971, so as to permit termination of pregnancies of more than 20 weeks for expedient termination of pregnancies beyond 20 weeks in the cases particularly involving rape survivors and women with abnormal foetus’s under safe medical facilities. The Court said that the said prayer was in the legislative realm and hence, it will not interfere. [Anusha Ravindra v. Union of India, Writ Petition (Civil) No.934/2017, order dated 13.10.2017]

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Supreme Court: The 10-year-old girl, who’s plea to terminate her pregnancy was refused by the Supreme Court on 28.07.2017, will receive Rs. 10 Lakh compensation from the Chandigarh Administration as directed by the Court. The Court asked the Chandigarh administration to release Rs. 1 Lakh to the family of the girl and keep the remaining Rs. 9 Lakh in Fixed Deposit.

On 28.07.2017, the Court had held that allowing the termination of her pregnancy might be dangerous for the girl’s health, based on the medical report of the 10-year-old rape survivor who was repeatedly raped by her uncle. The Medical Board of PGI, Chandigarh said in it’s report that  it would neither be in the interest of the girl child nor the alive foetus, which is approximately 32-weeks-old, to order abortion.

Source: ANI

Case BriefsSupreme Court

Supreme Court: The bench of SA Bobde and L Nageswara Rao, JJ allowed a 26-year-old woman, who is in 25th week of pregnancy, to terminate her pregnancy after her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infant’s death during or shortly after birth. The medical board’s report said that the condition of the foetus was also dangerous for the mother’s life.

Noticing that the fetus is without a skull and would, therefore, not be in a position to survive, the Medical Board said that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioner’s life is involved if she is allowed to undergo termination of her pregnancy. The Court, hence, said that it was in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. [Mamta Verma v. UOI, WRIT PETITION (CIVIL) NO.627 OF 2017, decided on 09.08.2017]

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Supreme Court: Hearing the appeal of a 10 year old rape survivor aggrieved by the order of a Chandigarh Court that refused to allow her to terminate her 26 week old foetus, the Court issued notice to the Centre and asked the Chandigarh Legal Service authority to get the girl examined at PGI Chandigarh.

The Medical Termination of Pregnancy Act, 1971, allows the termination of a foetus no more that 20 week old. The girl who was repeatedly raped by her uncle, is in her 26th week of pregnancy. In such cases the Court, based on the medical report, weighs the risks on the life of the woman/girl if the pregnancy is allowed to be terminated or ordered to be continued.

The Court will take up the matter on 28.07.2017, after the Medical team at PGI Chandigarh has submitted it’s report.

Source: ANI

 

Case BriefsHigh Courts

Gujarat High Court: A Bench comprising of J.B. Pardiwala, J. allowed a writ application filed by a victim of rape for termination of her pregnancy, subject to her examination by two doctors to ensure that the termination can be carried out safely.

The applicant, a 16 year old girl was a victim of rape, due to which she got impregnated. The Medical Termination of Pregnancy Act only allows for termination of pregnancy below 20 weeks. Since, her pregnancy was a bit above 20 weeks she made an application for termination to the Court. The Court noted that the victim is aged sixteen years and is carrying pregnancy of above 20 weeks, which will cause a lot of mental stress and grave injury to her mental health.

The Court followed the case of Madhuben Arvindbhai Nimavat v. State of Gujarat,  2016 SCC OnLine Guj 662 in which a plethora of cases dealing with identical issues were discussed and the test of ‘best interest’ was applied. In that case, it was held that the Court shall have to consider the course of action bearing in mind the ‘best interest’ theory. Victim girl is very young. Her trauma, mental agony and possibilities of social ostracism needs to be kept in view. Considering the medical opinion on feasibility of continuing pregnancy as well as social circumstances faced by the victim, the Court’s decision has to be guided by the best interest of the victim alone and not of the guardians or the society.

In the present case, the Court observed that a doctor has personally examined the victim and submitted that she is in a fit condition to undergo termination and it is not likely to endanger her life. Consequently, the Court disposed of the application by directing that two other doctors, will examine the victim once again to ensure that the pregnancy can be terminated without compromising the safety of the victim. If the procedure is safe for her, the pregnancy should be terminated. [Pujaben Subedar Yadav v. State of Gujarat, 2017 SCC OnLine Guj 453, decided on 3-5-2017]

Case BriefsSupreme Court

Supreme Court: Paying heed to the grievance of a 35-year-old woman, a victim of sexual assault, who sought for termination of pregnancy on the ground that she is HIV positive, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed the Medical Board at AIIMS, New Delhi to examine the petitioner and submit a report to the Court on the next date of hearing i.e. 08.05.2017 so that attempts can be made to save the life of the petitioner.

Earlier, the Patna High Court had directed the Medical Board at Indira Gandhi Institute of Medical Sciences, Patna to examine the petitioner. The report of the said Board stated that a major surgical procedure was required. The High Court hence held that the Medical Board report has stated that it would be unsafe to the life of the petitioner and further there is compelling State’s responsibility to keep the child alive.

 Stating that the quintessential purpose of life, be it a man or a woman, is the dignity of life and all efforts are to be made to sustain it, the Court said that a woman, who has already become a destitute being sexually assaulted and suffering from a serious medical ailment, should not to go through further sufferings. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 03.05.2017]

 

Case BriefsHigh Courts

Madras High Court: Deliberating upon a relevant issue as to whether, “a minor daughter’s right to life under Article 21 of the Constitution includes the right to create a life”, the Bench of Dr. S. Vimala, J., observed that it is a woman’s choice and her autonomy to decide what to do with her body,  including conceiving a child and retention of pregnancy. With this observation, the Court thus held that considering the right to life, which includes the right to create a life, the right to dignity, the right to autonomy and bodily integrity, the Court cannot order the abortion of the foetus against the wishes of the victim girl as in the present case.

The present writ petition came up whereby which the petitioner (father) pleaded before the Court to direct the government hospital to medically terminate the pregnancy of his daughter under Section 3 of the Medical Termination of Pregnancy Act as the continuance of such pregnancy would cause grave physical and mental agony to his daughter, however the daughter was reluctant to abort the foetus and expressed her desire to continue with the pregnancy.

Examining the contentions of the parties, the Court first chose to look into the matter as to whether the daughter was a minor or major on the date of the alleged occurrence and on the date of production before the Court. Perusing the evidences, the Court decided that at the time of the sexual intercourse and conception the girl was a minor (17 years), however she attained majority on the date of her production before this Court. The Court further observed that India has ratified the United Nations Convention on the Rights of the Child (UNCRC) which places importance upon the decision-making ability of a child in matters affecting him/her directly or indirectly. Furthermore the Court highlighted the controversies surrounding certain provisions of the Protection of Children from Sexual Offences Act, 2012 and the disadvantages of teenage pregnancies. However, upon observing that the girl has formed a positive opinion regarding continuing her pregnancy, the Court declined to pass any order regarding termination of her pregnancy. The Court also observed that controversies, conflicts and constitutional validity of the POCSO Act can only be decided by the Division Bench of this Court as per the considerations of the Chief Justice of this Court. [Marimuthu v. The Inspector of Police, WP (MD) No. 12212 of 2016, decided on 19.09.2016]

Case BriefsSupreme Court

Supreme Court: Acting upon the report of the Medical Board at KEM Hospital and Medical College, Mumbai, constituted to medically examine the petitioner, a rape survivor, the Court said that that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Court, hence, made an exception and held that it is permissible to allow the petitioner to abort the 24 week-old foetus in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. As per Section 5 of the Act, the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.

On 22.07.2016, the bench comprising of JS Khehar and Arun Mishra, JJ. had directed the Maharashtra Government to set up a medical board to examine the rape survivor who sought permission to terminate her 24 week old foetus and the medical examination was directed to be conducted on 23.07.2016. The Medical Board had advised against the continuation of pregnancy and had noticed that in view of severe multiple congenital anomalies, the fetus is not compatible with extra-uterine life and that the pregnancy might endanger the health of the petitioner. [Ms. X. v. Union of India, 2016 SCC OnLine SC 745, decided on 25.07.2016]