R.I. Chagla, J.:— Heard the learned Counsel for the parties via Video Conferencing.
2. This Petition has been filed under Article 226 of the Constitution of India by the Petitioner seeking a direction to the Respondent No. 2 along with a duly constituted medical board to examine the Petitioner and file a report as to whether the termination of pregnancy of the Petitioner is possible and after considering the report allow the Petitioner to terminate her pregnancy.
3. The case of the Petitioner is that the Petitioner is a married woman. The Petitioner claims to have learnt of her pregnancy for the first time from her Gynecologist and was detected in a sonography Report dated 14 May 2020. The Petitioner was examined at the Department of Radiodignosis & Imaging Noopur Daignostics at Ratnagiri. The Petitioner further claims that the examination revealed that the Petitioner was pregnant beyond 20 weeks. The ultra sonography Report dated 14 May 2020 has been annexed at Exh.C. to the Petition.
4. The Petitioner states that the 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. The Petitioner further states that she is being treated by Dr. Prachi Aurangabadkar, who possesses a recognized medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in the State Medical Register and who has experience and training in gynecology and obstetrics as is prescribed by rules made by this Act.
5. It has been stated in the Petition that a decision had been taken by the Petitioner to go in for termination of her pregnancy, as the continuation of pregnancy at the Petitioner's age of 38 years may lead to various complications in her life. This according to the Petitioner would cause great physical and mental agony to the Petitioner. The Petitioner claims that she and her family are in no condition financially and neither is the Petitioner mentally prepared to be a mother under the given circumstances.
6. The Petitioner has sought to explain the delay in applying for termination of pregnancy. The Petitioner states that from March 2020 due to the Covid-19 pandemic situation, the Petitioner could not move out of her house as per the lockdown declared by the Union of India as well as State of Maharashtra. The Petitioner although having taken the decision to go for termination of pregnancy, Respondent No. 1 had shown inability to accept the request since the duration of pregnancy had exceeded 20 weeks and in view of the specific bar in Sections 3 and 5 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as “the said Act”). The Petitioner is thus applying to this Court by way of the present Petition for permission to terminate her pregnancy.
7. Learned Counsel for the Petitioner has placed reliance upon Explanation I to Section 3(2)(b) of the said Act. She has submitted that under this Explanation 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. She submits that although Section 3(2)(b) of the said Act pertains to a pregnancy which exceeds twelve weeks but does not exceed twenty weeks, this Court has extended this provision to a pregnancy, the length of which exceeds twenty weeks. This is in the decision of the Division Bench of this Court in XYZ v. Union of India Judgment dt 3.04.2019 in Writ Petition No. 10835 of 2018 - (2019) 3 Bom CR 400 where this Court had referred to the Medical Termination of Pregnancy (Amendment) Bill which had proposed permitting the termination of pregnancy upto 24 weeks from the existing 20 weeks. The Division Bench held that in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution, this Court may permit medical termination of pregnancy, the length of which exceeds twenty weeks, in contingencies set out in Clauses (i) and (ii) of Section 3(2)(b) of the said Act subject no doubt by adherence to the safeguards indicated in the said judgment. She has submitted that this decision has relied upon a prior decision of the Division Bench of this Court in High Court on its own Motion v. The State of Maharashtra Judgment dated 19 September 2016 in Suo Motu PIL 1 of 2016 - 2017 Cri LJ 218 where Smt. V.K. Tahilramani J. (as she then was), speaking for herself and Smt. Mridula Bhatkar J (as she then was), observed in paragraph 13 that in the context of the words “grave injury to her physical or mental health” in Section 3(2)(b)(i) of the said Act, it is mandatory on the registered medical practitioner while forming an opinion of the necessity of termination of pregnancy to take into account the woman's actual or reasonable foreseeable environment. It is further observed that a woman's decision to terminate her pregnancy is not a frivolous one and that abortion is the only way out of a very difficult situation for a woman, and that her limited financial and other resources are required to be taken into consideration.
8. She has submitted that the decision for termination of pregnancy as observed in the above decision are to be taken by responsible women who have few other options. 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 i.e. woman's right to make reproductive choices and aggravates her mental trauma which would be deleterious to her mental health. She has in this context placed reliance upon the decision of the Supreme Court in Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1. She has accordingly, submitted that since the Petitioner and her family are in poor condition financially and the Petitioner is not mentally prepared to be a mother for the first time when she would be of the age of 39 years, the termination of pregnancy be permitted.
9. The learned AGP appearing for Respondent No. 1-State has submitted that there are no legal grounds for allowing the termination of pregnancy. She has submitted that Explanation II to Section 3(2)(b) relied upon by the learned counsel for the Petitioner would not apply in the facts of the present case as it would apply only to a married woman who already has a child and the pregnancy has occurred as a result of failure of any device or method used by the married woman for limiting the number of children. It is in this context that the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. In the present case, the Petitioner although a married woman has no child and hence there can be no limiting the number of children to make Explanation II to Section 3(2)(b) applicable. She has submitted that the decision of this Court in High Court on its own Motion (supra) was in the context of Explanation II and its interpretation. This Court was mindful that the said Explanation pertains to a married woman, who would be fearful that the welfare of the child she already has and the other members of the household that she is obliged to take care of with limited financial and other resources, may be compromised by the birth of another child. It is in this context, that this Court held that abortion is often only way out of a very difficult situation for a woman. She has submitted that the Medical Board had been constituted pursuant to the order of this Court dated 19 June 2020. The Report of the Medical Boards had been prepared after hearing the Petitioner on 20 June 2020. The Medical Board had not recommended the medical termination of pregnancy as the gestational age is beyond twenty weeks and there are no valid indications for medical termination of pregnancy as per the said Act. She has accordingly, submitted that this Court should take into consideration the recommendation of the Medical Board and not allow the Petitioner to terminate her pregnancy of 23 weeks and 5 days i.e. beyond the statutory ceiling of 20 weeks.
10. Having considered the above submissions, it is noticed that the Medical board has been constituted at Ratnagiri pursuant to the order of this Court dated 19 June 2020. The Medical Board comprises of suitably qualified persons and includes the following Doctors:—
Sr. No. Name Designation Specialization 1. Dr. Ashok N. Bolde Civil Surgeon Ratnagiri M.S. 2. Dr. Subhash Chavan Senior Gynecologist M.D. (Gynac) 3. Dr. Dilip More Paediatrician M.B.B.S., D.C.H. 4. Dr. Vinod Sangvikar Gynecologist M.B.B.S., D.G.O 5. Dr. Nitinkumar Saha Psychiatrist M.B.B.S., D.P.M. 6. Dr. Vijay Surygandh Paediatrician M.B.B.S., M.D. 7. Dr. Shubangi Bedekar Gynecologist M.B.B.S., D.G.O.D.N.B. (Obgy)
11. The Petitioner was examined on 20 June 2020 by the Medical Board. The Report of the Medical Board has referred to the sonography Report dated 14 May 2020 and provided opinion on the findings:
“(1) single live Fetus seen in longitudinal lie, vertex presentation; (2) Placenta is posterior GR. I in maturity. Three vessels cord is visualized and appears normal; (3) Amniotic fluid is adequate; (4) Composite gesrational age of 18 wks 3 days.”
12. Having conducted examination of the Petitioner and the related medical documents, the Medical Board made the following additional findings, observations and recommendations:—
“14. Additional findings and observations:—
Woman is asked the reason for MTP. She said that she was living alone at present and not financial sound. She was using condom as a contraceptive method. She was not seeking medical advice because of COVID 19 situation. The Board has observed that In COVID 19 situation, obstretics department of Govt. and private hospitals was working 24 × 7. She has visited two Gynacologist in the month of May. She does not know about the contraceptive methods. She was hiding a fact and giving false and contradictory statement before this board.
Physical fitness for termination:—
a. Yes √
b. No.
15. Recommendation by Medical Board for termination:
MTP is not recommended as gestation age is beyond 20 weeks and there is no valid indications for MTP as per MTP Act 1971.”
13. Thus, the Medical Board has not recommended the medical termination of pregnancy on two counts viz. (i) that the gestation age is beyond 20 weeks and (ii) that there are no valid indications for medical termination of pregnancy as per the said Act.
14. It would be necessary to refer to the said Act as well as relevant provisions thereto.
15. The Medical Termination of Pregnancy Act, 1971 has been enacted to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. As per the statement of objects and reasons, provisions regarding termination of pregnancy in the Penal Code, 1860 have virtually become otiose. Abortion was considered or looked at primarily from the prism of an offence. With expansion and improvement of health services, doctors were often confronted with gravely ill or dying pregnant women requiring operation. Therefore to liberalise existing provisions relating to termination of pregnancy, the aforesaid Act was conceived as a health measure to mitigate the following:
- where there is danger to the life or risk to physical or mental health of the woman;
- on humanitarian grounds, such as, when pregnancy arises from a sex crime; and
- on eugenic grounds where there is substantial risk that the child, if born, would suffer from deformities and diseases.
16. Section 3 of the said Act deals with situations when pregnancies may be terminated by the registered medical practitioners. Section 3 is extracted hereunder:
“3. When pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Penal Code, 1860, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that—
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation I.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment.
(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a [mentally ill person], shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.”
17. Supreme Court in X v. Union of India (2016) 14 SCC 382 considered the aforesaid provision and observed that the said provision deals with termination of pregnancies of different durations and the procedure contemplated thereof. Section 3 leaves no room for doubt that it is not permissible to terminate a pregnancy after 20 weeks.
18. On the other hand, Section 5 of the Act enumerates the situations when Sections 3 and 4 would not apply. Section 5 is reproduced hereunder:
“5. Sections 3 and 4 when not to apply.- (1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) Notwithstanding anything contained in the Penal Code, 1860, the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.
(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
(4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.
Explanation 1.-For the purposes of this section, the expression “owner” in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.-For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.”
19. Supreme Court in X v. Union of India (Supra), on perusal of Section 5 observed that termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.
20. In that case, Supreme Court considered the report of the medical board which recorded a finding that the risk to the Petitioner of continuation of her pregnancy of 24 weeks could gravely endanger her physical and mental health. In the light of the above, Supreme Court was satisfied that it was permissible to allow the Petitioner to terminate her pregnancy which was in the 24 week in terms of Section 5 of the Act. In view thereof liberty was granted to the Petitioner to terminate her pregnancy if she was so advised.
21. In Sarmishtha Chakraborty v. Union of India (2018) 13 SCC 339 Supreme Court was again confronted with the prayer made by the Petitioners, husband and wife, for constituting medical board to assess the pregnancy of the wife and directing termination of the pregnancy, after the pregnancy had crossed the outer limit of 20 weeks. In that case, 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. In the fact situation of that case, Supreme Court directed medical termination of pregnancy of the Petitioner wife.
22. This issue cropped up again before the Supreme Court in A v. Union of India (2018) 14 SCC 75. In that case also, Petitioner sought for a direction to allow her to undergo medical termination of her pregnancy beyond 20 weeks as she apprehended danger to her life when she discovered that her fetus was diagnosed with severe defects which were untreatable and certain to cause the infant's death during or shortly after birth, which was also likely to endanger the mother's life. After evaluation of the report submitted by the medical board which stated that petitioner was in her 25/26 week of pregnancy, Supreme Court permitted the Petitioner to undergo medical termination of her pregnancy.
23. It would thus, be seen from the various decisions of the Supreme Court that termination of pregnancy where the term of pregnancy has exceeded the statutory ceiling of 20 weeks would be allowed by the Court on limited grounds. The allowing of medical termination of pregnancy would be provided the Report of the Medical Board revealed that the mother would suffer mental injury if the pregnancy was continued and there would be multiple problems if the child was born alive including resulting in the death of the child during or shortly after birth.
24. In considering the provisions of the said Act it would be necessary to consider the scope and ambit of Section 3(2)(b) thereof. This provision relates to a pregnancy, the length of which exceeds twelve weeks but does not exceed twenty weeks, and where two registered medical practitioners are of the opinion in good faith that (i) the continuation of pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health and (ii) there is substantial risk if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Under this provision, two Explanations have been given. Explanation I is not applicable in the facts of the present case as the pregnancy is not alleged to have been caused by rape. Explanation II has been relied upon by the learned Counsel for the Petitioner. This Explanation would also not be applicable as although the pregnancy may have occurred as a result of failure of the device or method used by the Petitioner who is a married woman, the necessary ingredient viz. for limiting the number of children is not made out. In the present case, the Petitioner does not have a child and accordingly there can be no limiting of children in her case. Thus, the anguish caused of such unwanted pregnancy which would be presumed to constitute a grave injury to the mental health of the pregnant woman is nonexistent in the facts of the present case.
25. The decision of the Division Bench of this Court in High Court on its own Motion (supra) has interpreted the said Explanation II to Section 3(2)(b) of the said Act. It is clear from this decision that Explanation II is applicable only to a married couple and would be applicable where the woman fears that the welfare of the child she already has as well as the other members of household she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. In this context, it is observed by this Court that 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. Given this interpretation of Explanation II, the said provision is not applicable in the case of the Petitioner. It has also been made clear in the said decision that Explanation I to Section 3(2)(b) is very specific about the case of rape and the mental anguish to a woman who has suffered rape is obvious. This Court thus did not consider it necessary to deal with or interpret Explanation I.
26. The decision of Division Bench of this Court in XYZ v. Union of India (supra) which is relied upon by the Petitioner had held that this Court can exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to permit medical termination of pregnancy, the length of which exceeds twenty weeks, in the contingencies set out in clauses (i) and (ii) of Section 2(b) of the said Act. However, this necessarily would be subject to the recommendations of a duly constituted Medical Board. This Court had referred to the Termination of Pregnancy (Amendment) Bill which the Petitioner relies upon and which contemplated permitting the termination of pregnancy up to 24 weeks from the existing 20 weeks time line. However, this Bill has to date not been enacted. Thus, there still exists a bar on the registered medical practitioners permitting medical termination of pregnancy which exceeds twenty weeks under Section 3 of the said Act. Section 5 of the said Act which enumerates when Section 3 and 4 would not apply provides for medical termination of pregnancy by a registered medical practitioner under section 5 of the said Act where he is of the opinion formed in good faith that the termination of pregnancy is immediately necessary to save the life of a pregnant woman. Further, it is for the Court to permit the medical termination of pregnancy upon being satisfied that a special case is made out and that the Medical Board has recommended such termination.
27. It is clear from the Report of the Medical Board that the medical termination of pregnancy has not been recommended as the gestation age is beyond 20 weeks and that there is no valid indication for medical termination of pregnancy as per the said Act. The Report has further observed that the Petitioner was hiding facts and giving false and contradictory statements before the Medical Board. The Petitioner had sought to rely upon the Covid-19 pandemic situation for not moving out of her house for conducting the requisite examination and for termination of her pregnancy in view of the lockdown declared by the Union of India as well as the State of Maharashtra. It has been observed by the Medical Board that the obstretics department of the Government and private hospitals was working 24 × 7 in the Covid-19 situation. Further, the Petitioner has made a false statement that the sonography revealed that the Petitioner was pregnant beyond 20 weeks. The Medical Board had found that the sonography Report dated 14 May, 2020 showed that the composite gestational age was of 18 weeks and 3 days. Despite the observations in the sonography Report, the Petitioner has filed this Petition only on 15 June 2020 i.e. after the expiry of the statutory limit of 20 weeks for termination of pregnancy.
28. We are of the considered view that the reasons for medical termination of pregnancy beyond the statutory limit of 20 weeks viz. that the Petitioner and her family are in no condition financially and/or that the Petitioner would be of an advanced age of 39 years to be mentally prepared to be a mother are not valid grounds for termination of pregnancy under the said Act.
29. The decision of the Supreme Court in Suchita Srivastava (supra) relied upon by the Petitioner is inapplicable in the facts of the present case. In this decision the Supreme Court has observed that a pregnant woman has a personal autonomy to exercise her reproductive choice and terminate her pregnancy. This would necessarily be exercisable in terms of Section 3 of the said Act i.e. within the statutory limit provided thereunder.
30. Upon a thorough consideration of the matter as well as giving due consideration to the Report of the Medical Board, the Petitioner cannot be allowed to terminate her pregnancy which is beyond 20 weeks.
31. The Petition is thus dismissed with no order as to costs.
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