Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Sathish Chandra Sharma, CJ and Subramonium Prasad, J refused termination of pregnancy to an unmarried woman whose pregnancy arose out of a consensual relationship after holding that her case was clearly not covered by any of the categories mentioned under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 as on the date of the judgment.

The Petitioner aged 25 years is a 24 weeks pregnant unmarried woman. Her pregnancy arose out of consensual relationship that eventually failed. It was her case that she cannot give birth to the child due to her financial incapacity to raise and handle the child along with mental incapacity to be a mother in order to secure her future from social stigma.

The Court noted that a perusal of Section 3(2)(a) Medical Termination of Pregnancy Act, 1971 provides that the Medical Practitioner can terminate the pregnancy, provided the pregnancy does not exceed 20 weeks. Section 3(2) (b) of the Act provides for termination in circumstances where the pregnancy exceeds 20 weeks but does not exceed 24 weeks.

Further, it was noted that a perusal of Section 3(2)(b) Medical Termination of Pregnancy Act, 1971 provides that the said sub-Section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003. Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which permits termination of pregnancy up to 24 weeks, reads as under: –

“3-B. Women eligible for termination of pregnancy up to twenty-four weeks.

The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub-section (2) section 3 of the Act, for a period of up to twenty-four weeks, namely:

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c)change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”

The Court observed that the petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case.

A noteworthy mention was made by the counsel for petitioners regarding non-inclusion of unmarried women under Rule 3B of the Medical Termination of Pregnancy Rules, 2003 being violative of Article 14 of the Constitution of India. The Court, however, observed that whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court.

Noting that granting interim relief to the petitioner now would amount to allowing the writ petition itself, the Court held that in light of the law prevailing on the date of the passing of the order, Rule 3B Medical Termination of Pregnancy Rules, 2003, stands, and thus “this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute.”

This order, however, stands modified by the Supreme Court vide order dated 21-07-2022 wherein it has been held that woman cannot be denied right to safe abortion only on the ground of her being unmarried.

[X v. Principal Secretary, 2022 SCC OnLine Del 2171, decided on 15-07-2022]


Advocates who appeared in this case :

Dr. Amit Mishra, Advocate, for the Petitioner;

Ms. Hetu Arora Sethi, ASC for GNCTD with Mr. Arjun Basra, Advocate for R-1 Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor, Ms. Kunjala Bhardwaj, Advocates for R-2, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case relating to the termination of pregnancy of an unmarried woman, whose pregnancy arose out of a consensual relationship, the 3-judge bench of Dr. DY Chandrachud, Surya Kant and AS Bopanna, JJ has given a progressive ruling by holding that a woman cannot be denied the right to a safe abortion only on the ground of her being unmarried.

“Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.”

Facts

In the case at hand, the woman, a permanent resident of Manipur currently residing in Delhi, was in a consensual relationship but the relationship failed. In the month of June 2022 she learnt that she was pregnant. On 5 July 2022, an ultrasound scan revealed a single intrauterine pregnancy of a term of twenty-two weeks. The petitioner decided to terminate the pregnancy by averring that she has stated that she is the eldest amongst five siblings and her parents are agriculturists. She holds a BA degree and, in the absence of a source of livelihood, she would be unable to raise and nurture a child. It is the case of the woman that she was deserted by her partner at the last stage in June 2022 causing her immense mental agony, trauma, and physical suffering.

The laws in question

The woman sought a direction for the inclusion of an unmarried woman within the ambit of Rule 3B of the Medical Termination of Pregnancy Rules 2003 (MTP Rules) for the termination of pregnancy in terms of the provisions of clause (b) of sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act 1971 (MTP Act).

Section 3(2) of the MTP Act

Clause (a) of sub-section (2) of Section 3 permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks. Clause (b) permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty four weeks for such categories of women “as may be prescribed by Rules made under this Act”. However, an opinion must be formed by not less than two registered medical practitioners that inter alia “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”.

Explanation 1 to Section 3 stipulates that for the purpose of clause (a), where a pregnancy has occurred as a result of a failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 1 evidently qualifies clause (a) but not clause (b).

Rule 3B of the MTP Rules

This rules lists down the category of women eligible for termination of pregnancy up to twenty-four weeks.-

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancy (widowhood and divorce);

(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];

(e) mentally ill women including mental retardation;

(f) the foetal malformation that has substantial risk of being imcompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and

(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

Delhi High Court’s order

The High Court denied the right to safe abortion to the woman by holding that since she is an unmarried woman whose pregnancy arose out of a consensual relationship, her case is “clearly not covered” by any of the above clauses of Rule 3B and, as a consequence, Section 3(2)(b) is not applicable.

Supreme Court’s observations

Disagreeing with the view, the Supreme Court observed that the High Court has taken an unduly restrictive view of the provisions of clause (c) of Rule 3B.

“Clause (c) speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. The expression “change of marital status” should be given a purposive rather than a restrictive interpretation. The expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes it.”

Explaining the fundamental principle of statutory interpretation that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intent of the legislature, the Court said that Parliament by amending the MTP Act through Act 8 of 2021 intended to include unmarried women and single women within the ambit of the Act. This is evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act.

It was further explained that Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy. Hence, it cannot be said that the Parliamentary intent is to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship.

“The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child. In recognizing the right the legislature has not intended to make a distinction between a married and unmarried woman, in her ability to make a decision on whether or not to bear the child. These rights, it must be underscored, are in consonance with the provisions of Article 21 of the Constitution.”

Drawing a comparison between the two provisions before and after the 2021 amendment, the Court noticed that the phrase ‘married woman’ was replaced by ‘any woman’ and the word ‘husband’ was replaced by ‘partner’. But evidently, there is a gap in the law : while Section 3 travels beyond conventional relationships based on marriage, Rule 3B of the MTP Rules does not envisage a situation involving unmarried women, but recognizes other categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape. There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women, especially when live-in relationships have been recognized by the Supreme Court.

“A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity.”

Holding that the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act, the Court was, hence, of the opinion that allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament. Moreover, allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute and the petitioner should not be denied the benefit on the ground that she is an unmarried woman.

The Court also took note of the fact that the petitioner had moved the High Court before she had completed 24 weeks of pregnancy, hence, the delay in the judicial process cannot work to her prejudice.

[X v. HEALTH AND FAMILY WELFARE DEPARTMENT, 2022 SCC OnLine SC 905, order dated 21.07.2022]


For Petitioner(s): Advocates Dr. Amit Mishra and Rahul Sharma

For Respondent(s): ASG Aishwarya Bhati, Advocates Deepabali Datta, Ketan Paul, Aman Sharma, B.L.N. Shibani, G.S. Makker

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. allowed an appeal which was filed seeking permission/ direction for termination of pregnancy.

The petitioner born in 2005 lodged an FIR alleging her kidnapping and sexual assault and because of the unfortunate incident, she had become pregnant and at present, she is carrying a pregnancy of 12 weeks. Since, she is victim of rape, therefore, she was not willing to continue the pregnancy and hence, she was before this court seeking direction to the respondents to terminate her pregnancy.

The District Hospital conducted an examination on the directions of the Court order as on 19-05-2022. They submitted a report in this regard and as per the report, the period of pregnancy was 13 weeks + 1 day, and therefore, in their opinion the same can be terminated.

The Court further reiterated the relevant portion of the Supreme Court judgment in X v. Union of India, (2016) 14 SCC 382 where it was held that Section 5 of the Act lay down the exception to Section 3 if as per the opinion of less than 2 registered Medical Practitioner gives the opinion of in good faith in respect of termination of pregnancy to save the life of pregnant women. By placing reliance over the aforesaid section the Supreme Court had granted liberty to the petitioner to terminate her pregnancy.

Considering the age of the petitioner, and the agony which she is going through at present and also keeping in view the report of Medical Board, the Court allowed the petition. It was stated that the case of the petitioner is covered under explanation of sub-section (2) of Section 3 of the Act of 1971.

The respondents were directed to carry out termination of pregnancy immediately if health condition of the girl permitted to do so. The Superintendent of District Hospital, was directed to admit the petitioner and examine her health condition before termination of pregnancy within 3 days positively as per the consent given by her as required under sub Section (4) of Section 3 of the Medical Termination of Pregnancy Act, 1971 & health condition.[X v. State of Madhya Pradesh, 2022 SCC OnLine MP 1070, decided on 23-05-2022]


For petitioner: Mr Ashish Choubey

For respondent: Mr Valmik Sakargayen


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

Petitioners sought to quash the complaint by the Appropriate Authority for violation of Rules 4 and 9 of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (PC&PNDT Rules) punishable under Section 23 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the proceedings pursuant thereto including framing of charges against the petitioners.

Question for Consideration

Whether cognizance of the complaint filed by a single member of Appropriate Authority is illegal warranting quashing of the complaint and proceedings pursuant thereto?

On a perusal of Section 28 of PC&PNDT Act, it is evident that the Metropolitan Magistrate/Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under this Act on the complaint of an Appropriate Authority or any officer authorized in this behalf by the Central or State Government or the Appropriate Authority under Section 28(1). Further, the complaint could also be filed by any person who gave notice of fifteen days to the Appropriate Authority.

Central Government and the State Government can even authorize an officer other than the Appropriate Authority to file a complaint on which cognizance can be taken by the Court.

In the present matter, the complaint against the petitioner had been filed by Dr Aruna Jain was a single member authority.

The Bench stated that since the cognizance of the complaint of an Appropriate Authority or an officer authorized on this behalf is a sine qua non for taking cognizance of an offence under the PC&PNDT Act, the Appropriate Authority should be validly appointed.

The notification dated 4-7-2003 issued by the Ministry of Health and Family Welfare, Union of India appointing a three-member Appropriate Authority for the Union Territory of Delhi is in the exercise of its power conferred under clause (a) of sub-Section 3 of Section 17 PC&PNDT Act and not in respect of clause (b) of sub-Section 3 of Section 17 of the PC&PNDT Act.

High Court noted that the functions assigned by the appropriate authority are multifarious and in view, thereof the Act contemplating appropriate authorities at the State level and District, or part of the State level is duly conceived by Sections 17 (3) (a) and Section 17 (3) (b) PC&PNDT Act.

Hence, every time when a raid is conducted in different areas of the State, it cannot be accepted that an officer of the Department of Law will be available every time.

In view of the plain language of Section 17(3)(b) PC&PNDT Act, it cannot be held that even for part of State, a Multi Member Committee would be a validly constituted Appropriate Authority.

Therefore, by giving a purposive construction to Section 17(b) and (c) of the Act, the acts performed by the Appropriate Authority of filing complaints pursuant to valid notification cannot be quashed.

The Bench added that, incomplete and improper maintenance of records are indicative of the fact that ultrasound was being done without keeping proper records for concealment of facts so that unwanted pregnancies for particular sex can be terminated, there is thus clear violence of PC & PNDT Act and MTP Act.

High Court found no ground to quash the complaint filed by the respondent and the proceedings thereto. [Manish Gupta v. State NCT of Delhi, 2022 SCC OnLine Del 1154, decided on 22-4-2022]


Advocates before the Court:

For the petitioner: Mr. Amardeep Singh, Adv. with Ms. Shruti Khosla, Adv.

For the respondent: Mr. Rajesh Mahajan, ASC for State with Ms. Jyoti Babbar, Ms. Shrutika Vedi, Advs. With SI Vineet Kumar, P.S. Timarpur

Mr. Anil Soni, CGSC for UOI

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. allowed the appeal for bail and set aside the order passed by the LXX Additional City Civil l and Sessions Judge and Special Judge, Bengaluru (on the application of the appellant under Section 439 Cr.P.C.

The instant appeal was filed under Section 14-A of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘SC/ST Act’ for short). The accused has preferred this appeal challenging the order passed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru rejecting his application for bail under Section 439 Cr.P.C.

Counsel for appellants Mr. Hasmath Pasha and Mr. Nasir Ali submitted that no doubt, the contents of the report and the charge sheet indicate that they spent intimate moments, but it also shows that the second respondent might have had consensual intercourse with the appellant. Even when they went to the hospital for the purpose of terminating the pregnancy, it was disclosed to the Doctors that the second respondent was the wife of the appellant, and she gave consent for termination of the pregnancy. The age of the second respondent is 27 years and in this view, the relationship between the appellant and the second respondent could be consensual. She knew the consequences of what she was doing. These being the facts and circumstances, at this stage, the appellant has been able to make out a prima facie case for grant of bail.

Cousnel for respondent Mr. K S Abhijith and Ms. Dhanlakshmi submitted that the second respondent has given statement under Section 164 Cr.P.C which discloses that she was subjected to forcible intercourse by the appellant. Her pregnancy was also terminated forcibly. There are ample materials indicating the involvement of the appellant. He refused to marry the second respondent the moment he came to know that she belonged to the scheduled caste. Therefore, there is no case for granting bail. it prima facie appears that the relationship between the appellant and the second respondent since the year 2018 is consensual.

The Court observed that the age of the second respondent is 27 years. She knew the consequences of having intercourse with the appellant. The appellant has produced a document which shows that both the appellant and the second respondent went to hospital for the purpose of terminating the pregnancy and at that time, they introduced themselves to be husband and wife. So, if all these aspects are taken into consideration, it is difficult to arrive at a conclusion at this stage that the appellant used to have sexual intercourse with the second respondent forcibly.

The Court thus held in the light of all these facts and circumstances, it is not diff icult to arrive at a conclusion that the appellant has been able to make out a case for grant of bail.

[Manoj Kumar M R v. State of Karnataka, Criminal Appeal No. 1933 of 2021, decided on 13-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While explaining whether a pregnant woman can seek termination of pregnancy beyond 24 weeks, Jyoti Singh, J. (Vacation Judge) found the mental health of the petitioner to be an essential factor for allowing termination of pregnancy.

Petitioner was 33 years old and had been undergoing regular checkups from the 5th week of her pregnancy. From the ultrasonography report conducted during the 20th week of gestation, it was revealed that there was choroid plexus cyst in the left lateral ventricle of the foetus. However, since the foetus was only 20 weeks old, foetal echocardiography was not performed. On completion of 24 weeks, foetal Echo-Doppler test was done, and various anomalies were found in the heart of the foetus.

After taking opinions from various doctors, it was found that the survival of the infant would be 50% in the very first year of their birth and even if they do survive the first year, repeated surgeries would have to be carried out and success of the surgeries would depend upon the stimuli of the baby to the environment.

Further, since the permissible limit of 24 weeks under the Medical Termination of Pregnancy (Amendment) Act, 2021 was over, the petitioner approached this Court seeking direction from the respondents to allow her to undergo medical termination of pregnancy.

Court had directed respondent 3/AIIMS to constitute a Medical Board to examine the petitioner, who had on the said date completed 28 weeks of pregnancy, to furnish its report regarding the necessity and feasibility of medical termination of the pregnancy.

The gist of the medical board’s opinion was also that the foetus had substantial abnormalities.

Analysis, Law and Decision

High Court observed that the petitioner in the present matter had completed 28 weeks of pregnancy, which was beyond the maximum period of 24 weeks, permissible under the MTP Act and therefore, on account of the proscription in Section 3 of the MTP Act, the petitioner had approached the Court, seeking directions to the respondents to allow the petitioner to undergo medical termination of the pregnancy.

The only focal point of the matter was that the petitioner sought pregnancy on account of the fact that the foetus was suffering from a severe cardiac anomaly.

As per Section 3(2)(b)(i) of MTP Act, grave injury to ‘mental health’ of a pregnant woman is a legal ground available to the woman to seek medical termination of pregnancy, with the caveat that the maximum period permissible under the Act, for termination, is 24 weeks.

Petitioner’s counsel took the Court to various decisions wherein cases of substantial foetal abnormalities and/or where the said abnormalities had a consequent impact on the mental health of the pregnant woman, Supreme Court and High Courts, both have permitted medical termination of pregnancy, beyond the statutory cap of 24 weeks.

While referring to a catena of decisions in view of the present matter, Court lastly referred to a judgment of Bombay High Court in XYZ v. State of Maharashtra, 2021 SCC OnLine Bom, 3353, wherein dealing with an identical issue, the Court allowed the petitioner to undergo medical termination of her pregnancy, finding that continuation of pregnancy could cause grave injury to her mental health.

Court noted the medical board’s opinion that the entire life of the child, if born, would largely depend on the clinical condition and quality of medical care provided to the child.

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Hence, High Court held that the mental frame of the petitioner, a mother, taking a tough call to terminate pregnancy, was understandable.

The Bench also added that the above-said circumstances would cause grave injury to the mental health of the petitioner.

Therefore, the petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. [Pratibha Gaur v. GNCTD, 2021 SCC OnLine Del 5573, decided on 31-12-2021]


Advocates before the Court:

For the Petitioner:

Ms. Sneha Mukherjee and

Ms. Surabhi Shukla, Advocates.

For the Respondents:

Ms. Hetu Arora Sethi, Additional Standing Counsel with Mr. Siddarth Aggarwal, Advocate for R-1 & 2.

Mr. Tanveer Oberoi, Advocate for R3.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: Expressing that, A woman has the right to make choice to carry pregnancy, at the same time, it’s her right not to carry the pregnancy, subject to conditions and restrictions enumerated under the Medical Termination of Pregnancy Act, B. Vijaysen Reddy, J., permitted termination of pregnancy of a 16-year-old girl though the gestation period crossed 24 weeks.

Instant petition was filed by a 16-year-old girl through her natural guardian seeking direction to respondent 4 to terminate her pregnancy medically, as per the provisions of the Medical Termination of Pregnancy Act, 1971 and as amended in 2021.

Factual Background

It was stated that the 16-year-old girl was sexually exploited by one of her extended family members further she was also threatened and emotionally abused with dire consequences.

Due to not keeping good health, she was taken for a medical checkup to respondent 4/hospital and as directed by the said hospital on approaching another hospital she was diagnosed with foetus of 25 weeks.

On enquiry by the parents, petitioner stated that she was threatened with dire consequences and the accused threatened to kill her mother. FIR was registered for the offences under Sections 376 (2) and 506 of Penal Code, 1860 and Sections 6 read with 5 of the Protection of Children from Sexual Offences Act, 2012.

Medical Opinion

It was submitted that there was a threat to the physical and mental health of the petitioner, aged 16 years, as the formation of foetus is not a choice but purely circumstantial, as the pregnancy is the result of sexual assault and rape. The petitioner at her tender age is not in a position to bear the child physically, mentally and financially. Considering the situation of the petitioner, who is in dire need of protection and dependency, she is not in a stage to bear or nourish the foetus.

Law

The upper limit for medical termination of pregnancy prior to the 2021 amendments was 20 weeks, which has been extended to 24 weeks.

Court had directed the Medical Board to submit a report after examining the petitioner.

Analysis and Decision

As per the Medical Board, the gestational age of foetus was 26 to 27 weeks and expected date of delivery was 6-1-2022.

Further, the Medical Board certified that the petitioner was fit for termination of pregnancy, however, it was stated that there may be medical complications like bleeding and petitioner may be subjected to surgical procedure, which required anesthesia.

However, it was noted that under Explanation 2 to Section 3(2) of the Act of 2021, there was a presumption that anguish caused to the rape victim by pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Court stated that,

Though there is restriction under the statute for terminating pregnancy, if the gestation of foetus is more than 24 weeks, it is settled law that the Constitutional Courts are empowered to direct termination of pregnancy.

Adding to the above, Bench observed that if the petitioner is compelled to continue with pregnancy caused by rape, it would infringe her right to life guaranteed under Article 21 of the Constitution of India.

If the petitioner is not permitted to terminate the pregnancy, there is every possibility of the petitioner undergoing severe physical and mental stress, which may have adverse effect on her future health and prospects.

 In Court’s opinion, the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the petitioner.

Right of Woman to make Choice of Pregnancy and Terminate pregnancy

 Dignity, self-respect, healthy living etc., are facets of right to life and personal liberty enshrined under Article 21 of the Constitution of India, which also include right of a woman to make a choice of pregnancy and terminate pregnancy, in case, where pregnancy is caused by rape or sexual abuse or for that matter unplanned pregnancy, subject to reasonable restrictions under law.

 Therefore, in view of the above petition was allowed. [xxxx v. Union of India, 2021 SCC OnLine TS 1345, decided on 5-10-2021]


Advocates before the Court:

Petitioner Advocate: Katta Sravya

Respondent Advocate: Namavarapu Rajeshwar Raoassgi

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.B.Suresh Kumar, J., invoked the doctrine of parens patriae to permit termination of eight weeks pregnancy of a medically unsound rape victim.

 The instant petition was filed by Kerala State Legal Services Authority espousing the cause of a hapless rape victim diagnosed with psychosis. The victim was found wandering within the limits of Kazhakoottam Police Station and was taken by the Police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre.

The Medical Board at the Mental Health Centre found the victim to be pregnant, having gestation period corresponding to eight weeks as on 04-06-2021. As the relatives of the victim could not be traced, the Superintendent of the Mental Health Centre apprised the plight of the victim to the District Legal Services Authority and the writ petition was filed on that reference, seeking orders granting permission for medical termination of the pregnancy of the victim alleging that in terms of the provision contained in Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971, the victim being a major, her consent was required for terminating the pregnancy, but the victim was not in a position to grant such consent for termination of the pregnancy.

Perusal of Certificate issued by the Medical Board indicated that the victim was suffering from mental retardation with psychosis and was under treatment as an inpatient. It was recited in the said Certificate that the victim was unable to take decision or communicate her opinion.

The report submitted by the Medical Board stated that though continuation of the pregnancy did not endanger the life of the victim, there was a high risk for the mother and baby, as the victim was on multiple anti-psychotic medication. Continuation of pregnancy was riskier than termination at that in view of expected maternal complications due to the present mental status. Therefore, the Medical Board opined that the patient required observation and detailed evaluation, so as to comment upon her mental status conclusively and also to assess the capacity to take decision on her own.

In the light of the provision contained in sub-section (2)(b)(i) of Section 3 of the Act, 1971 and Explanation 2 to the said sub-section, the Bench held that the pregnancy was one that could be terminated on the basis of the opinion of two medical practitioners. As noted, the impediment in the matter of terminating the pregnancy of the victim was that she was not in a position to give consent for the same.

Reliance was placed by the Court on Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, wherein it was held that, “one among the said tests is the test of “best interests” which requires the court to ascertain the course of action which would serve the best interests of the person in question.”

Having regard to the fact that the person involved in the case was a rape victim and considering the opinion of the Medical Board, the Bench invoked the Hence, invoking the doctrine of parens patriae, to hold it was in the best interests of the person concerned to permit termination of her pregnancy. The writ petition was allowed and the respondents were permitted to terminate the pregnancy of the victim at the earliest, without insisting on the consent of the victim. However, considering that the person involved was a rape victim, the Bench passed further directions ordering respondents to take the tissue of the fetus and maintain the same for DNA examination.[Kerala State Legal Services Authority v. Union of India, WP(C) NO. 12278 of 2021, decided on 26-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsels for the Petitioners: K.P.Pradeep, T.T.Biju, T.Thasmi and M.J.Anoopa

Counsels for the Respondents: P.Vijayakumar, ASG and Initha B, Government Pleader

Case BriefsHigh Courts

Gujarat High Court: B.N. Karia, J., decided upon a petition which was filed with a request seeking permission to get the pregnancy terminated.

The Counsel for the petitioner, Mr Hardik H Dave had submitted that the victim was aged 13 years and accused is the paramour of the mother of the victim and they lived in the same house. The petitioner while having the doubt that her sister may be pregnant and to confirm the same took the victim for taking a pregnancy test and the test came out to be positive. On inquiry, the victim stated that her mother’s paramour that is the accused herein, for two months had been committing rape and atrocious sexual offence on the body of the victim and the said sexual engagement was without the consent of the victim.

The Court after considering the opinion of the panel doctors rejected the application to get the pregnancy terminated as they had suggested that termination of pregnancy would be very risky.

The Court directed that respondent 3 (Medical Superintendent, Civil Hospital, Godhra) shall provide the victim-girl with all possible medical treatments and shall conduct necessary tests which would also include the counselling by psychologist/Psychiatric and shall also provide requisite medicines and nutritious food. Further, at the time of the delivery victim girl shall be referred to Civil Hospital, Godhra, wherein her delivery, treatment and necessary care shall be taken by the Medical Superintendent, Civil Hospital, Godhra.

The Court further mentioned that if victim-girl and her family inform the authorities about their unwillingness to keep the child, then the efforts should be made to make necessary arrangement for the adoption of child by involving the concerned officials for the adoption of child from the Central Adoption Resource Authority (CARA) or any other recognized Institution expenses of which shall be borne by the Department of the Health and Family Welfare, State of Gujarat.

The disposing of the application directed the Department of Health and Welfare, Government of Gujarat to release sum of Rs1,00,000/- (Rupees One Lac only) in the account of the father/mother of the victim-girl for food and medical expenses.[Sangeetaben Arvindbhai Nayak v. State of Gujarat, R/Special Criminal Application No. 2630 of 2021, decided on 08-03-2021]


Suchita Shukla, Editorial Assistant has put this story together.

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 ]


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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

Legislation UpdatesStatutes/Bills/Ordinances

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]

Tripura High Court
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]