Pregnancy beyond 20 weeks, may be medically terminated with prior permission of High Court: Bombay High Court
In cases where pregnancy is a result of physical abuse and the subsequent birth of a child would cause physical disabilities and mental trauma to the pregnant woman, the victim may, with prior permission of the Court, be excused from the 20-week limitation imposed by the Medical Termination of Pregnancy Act. A Division Bench comprising of Justice KK Tated and Justice Abhay Ahuja while adjudicating the matter in X v. State of Maharashtra [WRIT PETITION (L) NO. 11131 OF 2021], dealt with the issue of terminating the pregnancy of a minor at her 23rd week of pregnancy. The petitioner, a minor girl, aged 16 years filed an FIR, under section 376 of the I.P.C. for rape, and under sections 4, 8 &amp; 12 of the Protection of Children for sexual assault and sexual harassment. The victim was raped by accused residing nearby. As a result of sexual offence, the victim became pregnant. Petitioner did not get her menstrual cycle for three months. Petitioner’s mother noted change in the Petitioner’s abdomen area and so took her to local clinic for check-up, where doctor after examination informed Petitioner’s mother that Petitioner was pregnant and sent the Petitioner for medico-legal checkup to R. N. Cooper Hospital. The said test was conducted on 23rd April 2021 and police were informed. Medical examination of Petitioner revealed that, she was pregnant and pregnancy was of 20 weeks gestation. Since the pregnancy had exceeded the statutory period of 20 weeks prescribed under the Medical Termination of Pregnancy Act, 1971 (the “MTP Act”), Petitioner is sought permission from this court to terminate her pregnancy. The learned Counsel for the petitioner relied on a few judgments passed by the Hon’ble Supreme Court as well as different Division Benches of this Court dealing with the issue of granting permission for termination of pregnancy even after the statutory period of twenty weeks provided under the MTP Act was over. He submitted that the mental trauma that the victim petitioner is undergoing because of the pregnancy caused due to the offence of rape was causing. serious injury to her mental health. Besides this, there was inherent risk to her life because of pregnancy at such a tender age.
 on 11 05 2021 on 12 05 2. WPL 11131 21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITIONNO. 11131 OF 2021 ‘X’Petitioner is seeking permission from this court toterminate her pregnancy.5. We have heard Ms. Padwal the learned Counsel for thepetitioner and Ms. Kantharia the learned GP for theRespondent.6. The learned Counsel for the petitioner relied on a fewjudgments passed by the Hon’ble Supreme Court as well asdifferent Division Benches of this Court dealing with theissue of granting permission for termination of pregnancyeven after the statutory period of twenty weeks providedunder the MTP Act was over. He submitted that the mentaltrauma that the victim petitioner is undergoing because ofthe pregnancy caused due to the offence of rape was causingNikita Gadgil2 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtserious injury to her mental health. Besides this there wasinherent risk to her life because of pregnancy at such atender age.7. Considering the various directions issued by theHon’ble Supreme Court as well as by different DivisionBenches of this Court this Court on 6th May 2021 directedthe Medical Board at the Sir J. J. Group of Hospitals andGrant Medical College Mumbai to submit a report aboutpermitting medical termination of Petitioner’s pregnancy tothis Court.8. Today the report of the Committee is tendered beforeus in sealed envelope. The envelope is opened in the court.The report dated 10th May 2021 of the Committee readsthus: “After careful clinical examination ultasonography examination and psychiatricevaluation the committee has come to theopinion that at present no abnormality is detectedin the fetus or the pregnant minor mother.Pregnant minor and her parents do not wish tocontinue the pregnancy. The minorNotwithstanding anything contained in theIndian Penal Codea registeredmedical practitioner shall not be guilty of anyoffence under that Code or under any other law forthe time being in force if any pregnancy isterminated by him in accordance with theprovisions of this Act.(2) Subject to the provisions of sub sectionapregnancy may be terminated by a registeredmedical practitioner —(a) where the length of the pregnancy does notexceed twelve weeks if such medical practitioneris or(b) where the length of the pregnancy exceedstwelve weeks but does not exceed twenty weeks ifNikita Gadgil5 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtnot less than two registered medical practitionersare of opinion formed in good faith that—(i) the continuance of the pregnancy would involvea risk to the life of the pregnant woman or of graveinjury to her physical or mental health or(ii) there is a substantial risk that if the child wereborn it would suffer from such physical or mentalabnormalities as to be seriously handicapped.Explanation I.—Where any pregnancy is alleged bythe pregnant woman to have been caused by rape the anguish caused by such pregnancy shall bepresumed to constitute a grave injury to the mentalhealth of the pregnant woman.Explanation II.—Where any pregnancy occurs as aresult of failure of any device or method used byany married woman or her husband for the purposeof limiting the number of children the anguishcaused by such unwanted pregnancy may bepresumed to constitute a grave injury to the mentalhealth of the pregnant woman.(3) In determining whether the continuance of apregnancy would involve such risk of injury to thehealth as is mentioned in sub sectionaccountmay be taken of the pregnant woman’s actual orreasonably foreseeable environment.(4)(a) No pregnancy of a woman who has notattained the age of eighteen years or who havingattained the age of eighteen years is a[mentally illperson] shall be terminated except with theconsent in writing of her guardian.(b) Save as otherwise provided in clausenopregnancy shall be terminated except with theconsent of the pregnant woman.”Nikita Gadgil6 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odt12. Under Section 3(2)(b) of the MTP Act the maximumperiod of pregnancy is prescribed as twenty weeks. Thecircumstances under which the pregnancy can beterminated are also set out under this Section. One suchcircumstance as mentioned in Section 3(2)(b)(i) is that thetermination of pregnancy is allowed if the continuance ofthe pregnancy involved a risk to the life of the pregnantwoman or grave injury to her physical or mental health.Explanation 1 to this sub section provides that when thepregnancy was caused by rape it was presumed toconstitute a grave injury to the mental health of thepregnant woman. In the instant case this particularcircumstance is clearly existing and there is no doubt thatcontinuance of this pregnancy is causing a grave injury tothe mental health of the petitioner. Apart from this ofcourse considering her tender age of 16 years there is aninherent risk to her life. The only diffculty in the presentcase is that the statutory period of 20 weeks is over.Petitioner has entered into 23rd week of her pregnancy and therefore the MTP Act does not permit medical terminationof pregnancy in such cases.13. However Sub Sectionof Section 5 of the MTP Actcarves out an exception which reads thus :“5. Sections 3 and 4 when not to apply.The provisions of section 4 and so much of theprovisions of sub sectionof section 3 as relate to thelength of the pregnancy and the opinion of not less than tworegistered medical practitioners shall not apply to thetermination of a pregnancy by a registered medicalNikita Gadgil7 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtpractitioner in a case where he is of opinion formed in goodfaith that the termination of such pregnancy is immediatelynecessary to save the life of the pregnant woman.”14. A Division Bench of this Courtin Writ Petition Nos.10835 2018 9748 2018 & OS Writ PetitionNo.3172 2018 decided on3.4.2019 has discussed and dealt with similar issue. TheDivision Bench considered various judgments passed by theHon’ble Supreme Court and discussed many issues. Firstand foremost the Division Bench referred to the order ofthe Hon’ble Supreme Court passed in Writ Petition&of Section 3(2)(b) of the MTP Act exist.15. The Division Bench also considered whetherexpression ‘life’ in Section 5 of the MTP Act was to beconstrued narrowly as antithesis to death or physicalsurvival or whether it had to be liberally interpretedadopting the principles of purposive interpretation.Nikita Gadgil8 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odt16. It was observed in paragraphs 79 and 80 that wherethe continuance of pregnancy poses grave injury to thephysical or mental health of the mother if the pregnantmother is forced to continue with her pregnancy merelybecause the pregnancy had extended beyond the ceiling of20 weeks there would arise a serious affront to thefundamental right of such mother to privacy to exercisereproductive choices to bodily integrity and to her dignity.It was further observed that the principle of liberal orpurposive construction would harmonize the provision inSection 5 of the MTP Act with the constitutional provisions.Based on some Supreme Court judgments the DivisionBench went on to observe that the right to life enshrined inArticle 21 included the right to live with human dignity.17. Considering all these facets the Division Bench held inter alia where a pregnant woman the length of whosepregnancy has exceeded 20 weeks seeks to terminate suchpregnancy on the ground that its continuance would involvegrave injury to her physical or mental health or wherethere is a substantial risk that if the child were born itwould suffer from such physical or mental abnormalities asto be seriously handicapped such pregnant woman will haveto seek permission from the High Court and unless suchpermission is granted no registered Medical Practitionercan terminate such pregnancy.18. It was further held that this Court in exercise of itsextraordinary jurisdiction under Article 226 of theConstitution of India can permit medical termination ofNikita Gadgil9 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtpregnancy the length of which exceeds 20 weeks incontingencies set out in clausesandof Section 3(2)(b) of the MTP Act. The Division Bench had directed theState to constitute Medical Boards for this purpose whichdirection appears to have found place in the 2021amendments though yet to be made effective.19. The Division Bench had further held that if medicaltermination of pregnancy was permitted and inspite of thatif the child was born alive then the registered MedicalPractitioner and the hospital concerned was required toassume full responsibility to ensure that such child isoffered best medical treatment available in thecircumstances and in such cases if the parents ofsuch child were not willing to or are not in a position toassume the responsibility for such child then the State andits agencies will have to assume full responsibility for suchchild in the best interests of such child and in accordancewith the statutory provisions of the Juvenile Justice Act.20. In view of the observations made in the aforesaidjudgment of the Division Bench in W.P Nos.10835 2018 9748 2018 & OS W.P.No.3172 2018 applying the ratio guidelines and directions of this judgment to the facts of thecase we are of the considered view that Petitioner will haveto be permitted to undergo medical termination ofpregnancy.21. The report of the committee also mentions that thepregnant minor and her parents have been made aware ofNikita Gadgil10 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtthe dangers of continuation of pregnancy as well astermination of pregnancy. 22. Another Division Bench of this Courtin Writ Petition No.6613 2019on 13.6.2019 has dealt with another important issue. It wasobserved in that judgment that since the pregnancy in thatcase was a result of physical abuse and since the FIR waslodged directions were issued for preservation of the tissuesample blood sample of the fetus for carrying out necessarymedical tests including DNA fnger printing mapping andthe Investigating Offcer was directed to forward the sameto the Regional Forensic Laboratory. The learned Counselfor the petitioner submitted that similar directions neededto be issued in the instant case as well.23. Considering the above discussion following order ispassed :ORDERi. The petitioner is permitted to undergo medicaltermination of pregnancy as per Committee’s report dated10th May 2021 at KEM Hospital Mumbai.ii. The Dean of the KEM Hospital Mumbai shall ensure thatthe procedure is performed at a place which satisfes all therequirements of the MTP Rules 2003 and the procedureshall be conducted by the Medical Practitioner who satisfesthe conditions laid down under those rules.Nikita Gadgil11 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtiii. The blood sample and tissue sample of the fetus shall bepreserved for the purpose of carrying out necessarymedical tests including DNA and other tests. TheInvestigating Offcer conducting investigation shall ensurethat the samples are forwarded to Forensic ScienceLaboratory and the samples shall be preserved for thepurpose of trial of the offence.iv. In case if the child is born alive the Medical Practitionerwho conducts the procedure will ensure that all necessarymedical facilities are made available to such child for savingit’s life.V. In case if the child is born alive and if the petitioner andher parents are not willing or are not in a position to takeresponsibility of such a child then the State and its agencieswill have to assume full responsibility for such child.vi. Rule is made absolute in the aforesaid terms.vii. No order as to costs.viii. All concerned parties to act on the authenticated copyof this order. Learned A.G.P. is directed to send anauthenticated copy of this order to the Investigating Offcerwho is conducting investigation in the present case.(ABHAY AHUJA J.)(K.K.TATED J.)Nikita Gadgil12 12.. 