Bombay High Court

High Court On Its Own Motion vs The State Of Maharashtra on 19 September, 2016

Bench: V.K. Tahilramani

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RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION




                                                                                                  
                 SUO MOTU PUBLIC INTEREST LITIGATION NO. 1 OF 2016




                                                                         
            High Court on its own Motion                                  .. Petitioner

                                 Versus




                                                                        
            The State of Maharashtra                                      .. Respondent

                                                   ...................
            Appearances




                                                             
            Ms. Manjiri Shah                  Advocate (appointed) for the Petitioner
            Mr. Arfan Sait                    APP for the State
                                               ig  ...................
                                             
                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              MRS. MRIDULA BHATKAR, JJ.

DATE : SEPTEMBER 19, 2016.

ORDER [PER SMT. V.K. TAHILRAMANI, J.] :

1. The background of this PIL, coming before us, is that

Ms. A.S. Shende, Judge, City Civil & Sessions Court, Greater

Bombay visited Byculla District Prison on 25.4.2016 in view

of directions of this Court. Generally women prisoners in

Mumbai are kept in District Women Prison, Byculla, Mumbai.

During the visit, one inmate / under-trial prisoner namely

Shahana gave a requisition for obtaining permission to

terminate her pregnancy. The requisition given by Shahana

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is part of this PIL. In the requisition, she has stated that she

already has a baby who is five months old. The baby was

suffering from convulsion / epilepsy, hernia, loose motion as

well as fever. Shahana's health was also not good and she

was suffering from repeated bleeding. Shahana was four

months pregnant. Shahana stated that in all these

circumstances, it was very difficult for her to maintain and

take care of her five months old baby and herself and in

addition, the baby which she was expecting, hence, she

requested that she be allowed to medically terminate her

pregnancy.

2. Ms. Shende, the learned Judge made inquiry with the

Jail Superintendent as well as the Medical Officer attached to

the jail. She was informed by the Medical Officer about the

health condition of five months old baby of Shahana and

pregnancy of Shahana. The medical officer also supported

the contention of Shahana in respect of termination of

pregnancy. Learned Judge Ms. Shende was further informed

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by the Medical Officer attached to jail that for obtaining

permission for termination of pregnancy, a proposal has to

be sent to the Committee which will take time, therefore,

considering the state of health of the baby and the mother

and the application given by Shahana, the learned City Civil

& Sessions Judge thought it fit to forward all the papers

including the application / requisition given by Shahana to

the High Court for information and urgent action, by her

letter dated 26.4.2016. Along with the letter, Ms. Shende

sent requisition of Shahana along with her medical papers

along with copy of application dated 21.3.2016 sent by the

Superintendent, Mumbai District Women Prison, Byculla,

Mumbai addressed to Sir J.J. Group of Hospitals, Mumbai for

grant of permission for surgery / medical termination of

pregnancy. The concern of the learned Judge was that

though the letter dated 21.3.2016 was addressed to the

hospital, till 26.4.2016, no medical termination of pregnancy

was carried out. In view of that, the learned Judge Ms.

Shende requested for urgent directions to be given to Jail

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Authorities as well as Dean of J.J. Hospital to take immediate

necessary action according to law. In view of this report, the

Registry of this Court then sought following directions :-

A. Registry be permitted to forward the report of City Civil

Judge, Mumbai dated 26.4.2016 with annexures to the Dean of Sir JJ Hospital for taking immediate needful action as permissible under law.

AND B. Registry be permitted to inform Jail Superintendent,

Mumbai District Women Prison, Byculla, Mumbai to immediately co-ordinate with the authority of Sir J.J.

Hospital and to produce the concerned Under Trial Prisoner at Sir J.J. Hospital for giving immediate medical treatment including MTP as per medical advice and permissible under

law.

AND

C. Registry be also permitted to inform the concerned City Civil & Sessions Judge to monitor the action taken by the Jail Authorities and Sir J.J. Hospital for avoiding delay as

there is requirement of urgent steps to be taken by the Authorities in respect of Under Trial Prisoners.

OR D. Your Lordship may issue any other appropriate directions

as may be deemed fit.

3. The directions at 'A' to 'C' were approved and the

matter was placed before the Hon'ble the then Chief Justice

who directed that this matter be treated as Suo Motu PIL and

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assigned the matter to this Bench. This is how this matter

has come up before us as a number of female prisoners are

faced with a similar situation.

4. Meanwhile as per the directions of the Jail

Superintendent of Byculla Prison, Mumbai, under-trial

prisoner Shahana was taken to the J.J. Hospital, Mumbai on

30.4.2016 for medical termination of her pregnancy. She

was directed to be brought before the concerned unit of J.J.

Hospital on 3.5.2016. Accordingly, she was brought to J.J.

Hospital on 3.5.2016 and on that day itself, her pregnancy

was medically terminated.

5. This Court appointed Advocate Ms. Manjiri Shah

to assist this Court as amicus curiae in this matter.

This Court also directed the learned APP to file

an affidavit stating the procedure which is followed in

case of Medical Termination of Pregnancy of a female

prisoner. Pursuant to the said directions, learned APP

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tendered the affidavit of Dr. Khan Sayeed Ahmed, Medical

Officer presently working at Byculla District Prison, Mumbai.

In the affidavit, it is stated that Chapter XLI, at Page No. 607

of Maharashtra Prisons Manual deals with women prisoners.

Rule 5 thereof deals with the facilities to women prisoners.

Rule 6 deals with medical aid to women prisoners including

cases of pregnancy. Rule 7 deals with pregnancy. Rule 8

deals with births in prison. In the said affidavit, it is further

stated that records are being maintained by Prison

Authorities and as soon as the prisoner viz. under-trial /

convicts are admitted to prisons / jails, entry is made in the

at the time of admission in the prison are medically

examined. Female prisoners at the time of admission are

examined and history about last menstrual period is taken

down. Urine pregnancy test is also conducted. After

conducting the test, if a woman prisoner is found to be

pregnant, this fact is intimated to the Superintendent of the

Jail and thereafter the woman prisoner is taken to the

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Government Hospital for further investigation, treatment and

for registration of pregnancy in Government Hospital at the

earliest.

6. On 29.8.2016, Advocate Ms. Manjiri Shah brought to our

notice that an under-trial prisoner Anjali who was lodged at

Thane Central Prison as under-trial prisoner F-346/16 was

arrested on 25.6.2016 and she wanted to terminate her

pregnancy, however, no steps were being taken in this

regard. We then directed the Superintendent of Thane

Central Prison to record the statement of under-trial prisoner

F-346/16 (Anjali) and to produce it in the Court on the next

date. Accordingly, the statement of under-trial prisoner F-

346/16 was produced before us on the next date i.e on

30.8.2016. In her statement, she clearly stated that she

wanted to terminate her pregnancy as it was not possible to

continue the same for various reasons stated in her

statement. We were also informed that the said prisoner had

been referred to the Civil Hospital, Thane for medical tests

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including sonography and the report of the tests will be

produced on the next date i.e 31.8.2016. On 31.8.2016, the

medical reports of under-trial prisoner F-346/16 were

produced before us. It showed that she was fifteen weeks

pregnant as on 30.8.2016. The Medical Officer of Thane

Central Prison who was present before the Court stated that

in view of the statement of the said under-trial prisoner, the

under-trial prisoner will be immediately referred to Thane

Civil Hospital so that pregnancy can be terminated. As 3rd

to 5th Sept. were holidays, we kept the matter on 6.9.2016

to find out the progress of the matter. On 6.9.2016, we were

informed that prisoner was admitted in hospital on 3.9.2016

for medical termination of pregnancy and on 4.9.16, the

pregnancy was medically terminated.

7. If a pregnancy is to be terminated, it is to be done

strictly as per the norms provided in the Medical Termination

of Pregnancy Act, 1971 (for short, 'The Act') especially

Sections 3, 4 and 5. The Medical Termination of Pregnancy

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Act, 1971 sets some limitations regarding the circumstances

when abortion is permissible, the persons who are

competent to perform the procedure and the place where it

could be performed. Sections 3 to 5 are relevant for our

purpose. Sections 3, 4 and 5 of the Act reads thus:-

3. When pregnancies may be terminated by registered medical

practitioners :-

Notwithstanding anything contained in the Indian Penal Code (45 of 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

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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 ig 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 of 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.

(4)(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

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4. Place where pregnancy may be terminated.- No termination of pregnancy shall be made in accordance with this Act at any place other than -

(a) a hospital established or maintained by Government, or

(b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District

Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said committee:

Provided that the District Level Committee shall consist of not

less than three and not more than five members including the Chairperson, as the Government may specify from time to

time.

5. Section 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 Indian Penal Code (45 of 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,

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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 that two years but which may extend to seven years.

Explanation 1 -For the purpose 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 purpose 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 gynecology and obstetrics

shall not apply.]

8. Sections 3 and 5 of the Act are the only sections which

allow termination of pregnancy. Section 5 can be invoked at

any time if the registered medical practitioner is of the

opinion in good faith that termination of pregnancy is

immediately necessary to save the life of the pregnant

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woman irrespective of restriction of 12 or 20 weeks as

mentioned in Section 3. Thus, Section 5 stands altogether

on different footing. We are concerned with Section 3.

Whether a woman can make her choice to continue with the

pregnancy or to terminate it within a restricted period as

contemplated in Section 3 of the Act.

In the affidavit of Dr. Khan Sayeed Ahmed, Medical

Officer of Byculla District Prison, it is clearly stated that if a

prisoner who is pregnant shows her willingness for

termination of pregnancy, the norms set out in Section 3 of

the Act are strictly followed and if the length of the

pregnancy exceeds maximum of 20 weeks as stated in

Section 3 of the Act, then Section 5 of the Act is followed.

10. It appears that earlier, there was some misconception

that for obtaining permission for medical termination of

pregnancy of a prisoner, the proposal has to be sent to a

Committee. Referring the case to a Committee would entail

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delay in the termination of pregnancy. This delay in

terminating the pregnancy could have some serious or

unnecessary complications which may affect the pregnant

lady adversely. However, on going through the Medical

Termination of Pregnancy Act and the Rules, as well as the

Prison Manual, we find that it is not necessary to refer the

case of a pregnant prisoner who wants to terminate her

pregnancy to a Committee. The Committee which is referred

to under 2(e) of the Medication Termination of Pregnancy

Rules 2003 and to which there is a reference in Section 4 of

the Act is a Committee whose job is only to approve the

place where a pregnancy can be terminated. A prisoner has

to simply indicate that she wants to terminate her pregnancy

as its continuance would cause grave injury to her physical

and mental health. She would then be referred to the

Government hospital and if her case was covered by

Sections 3 or 5 of the Act, the pregnancy would be

terminated.

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11. Section 3(2) states that where the length of pregnancy

does not exceed twelve weeks, it can be terminated by a

registered medical practitioner if he is of the opinion that the

case falls under Section 3(2)(a), (b)(i) or (ii). In case of

termination of pregnancy exceeding twelve weeks and not

exceeding 20 weeks, then same opinion but of not less than

two registered medical practitioners is to be sought. The

registered medical practitioners should opine that the

continuance of pregnancy either would involve a risk to the

life of the pregnant woman or of grave injury to her physical

or mental health. Section 3(2)(b)(ii) pertains to the risk

involved to the health of the child. The present case of

medical termination of pregnancy is to be considered under

Section 3(2)(b)(i) which allows the termination of pregnancy

if there is risk to the life of the pregnant woman or of grave

injury to her physical or mental health.

12. Besides physical injury, the legislature has widened the

scope of the termination of pregnancy by including "a injury"

to mental health of the pregnant woman. Thus, if

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continuance of pregnancy is harmful to the mental health of

a pregnant woman, then that is a good and legal ground to

allow termination if the pregnancy is not exceeding 20

weeks. Explanations 1 and 2 have stated the presumptions

in respect of grave injury to mental health of the pregnant

woman. The law-makers have considered and taken care of

the mental condition of the pregnant woman. In the case of

termination of pregnancy, the injury caused either to body or

mind is considered. However, mental health can deteriorate

if it is forced or unwanted pregnancy. Let us advert to

Explanation 1. Under Explanation 1, if a woman is pregnant

due to rape, then anguish caused by such pregnancy is to be

presumed to constitute a grave injury to mental health of the

pregnant woman. As per Explanation 2, if the pregnancy is

accidental on account of failure of device or method used by

married woman or her husband for the purpose of limiting

the number of children, then the said pregnancy if unwanted,

it may be presumed to constitute grave injury to mental

health of the pregnant woman. These two explanations

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stating presumptions do not restrict the scope of the various

other circumstances causing grave injury to mental health of

woman who is pregnant. We do not want to deal with

Explanation 1, as it is very specific about cases of rape and

mental anguish to a woman in such cases is obvious. If

pregnancy is due to rape, then there is bound to be complete

mental break down of a victim. We need to interpret

Explanation 2 which is restricted only to a married couple.

However, today a man and a woman who are in live-in-

relationship, cannot be covered under Explanation 2 whereas

Explanation 2 should be read to mean any couple living

together like a married couple.

13. A woman irrespective of her marital status can be

pregnant either by choice or it can be an unwanted

pregnancy. To be pregnant is a natural phenomenon for

which woman and man both are responsible. Wanted

pregnancy is shared equally, however, when it is an accident

or unwanted, then the man may not be there to share the

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burden but it may only be the woman on whom the burden falls.

Under such circumstances, a question arises why only a woman

should suffer. There are social, financial and other aspects

immediately attached to the pregnancy of the woman and if

pregnancy is unwanted, it can have serious repercussions. It

undoubtedly affects her mental health. The law makers have

taken care of helpless plight of a woman and have enacted

Section 3(2)(b)(i) by incorporating the words "grave injury to her

mental health". It is mandatory on the registered medical

practitioner while forming opinion of necessity of termination of

pregnancy to take into account whether it is injurious to her

physical or mental health. While doing so, the woman's actual or

reasonable foreseeable environment may be taken into account.

14. A woman's decision to terminate a pregnancy is not a

frivolous one. Abortion is often the only way out of a very difficult

situation for a woman. An abortion is a carefully considered

decision taken by a woman who fears that the welfare of the child

she already has, and of other members of the household that

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she is obliged to care for with limited financial and other

resources, may be compromised by the birth of another child.

These are decisions taken by responsible women who have few

other options. They are women who would ideally have preferred

to prevent an unwanted pregnancy, but were unable to do so. If a

woman does not want to continue with the pregnancy, then

forcing her to do so represents a violation of the woman's bodily

integrity and aggravates her mental trauma which would be

deleterious to her mental health.

15. According to international human rights law, a person is

vested with human rights only at birth; an unborn foetus is

not an entity with human rights. The pregnancy takes place

within the body of a woman and has profound effects on her

health, mental well-being and life. Thus, how she wants to

deal with this pregnancy must be a decision she and she

alone can make. The right to control their own body and

fertility and motherhood choices should be left to the

women alone. Let us not lose sight of the basic right of

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women: the right to autonomy and to decide what to do with

their own bodies, including whether or not to get pregnant

and stay pregnant.

16. Women in different situations have to go for

termination of pregnancy. She may be a working woman or

homemaker or she may be a prisoner, however, they all form

one common category that they are pregnant women. They

all have the same rights in relation to termination of

pregnancy. As stated earlier, as per Prison Manual, for

prisoners, there is provision for pregnant prisoners. Chapter

XLI is on Women Prisoners. Rule 7 in said Chapter pertains

to "Pregnancy of Women Prisoners, which is as follows:

"When a woman prisoner (convict or undertrial) is found or suspected to be pregnant at the time of her admission or at any time thereafter, the Medical Officer shall report the fact to the

Superintendent. As soon as possible arrangements shall be made to get such prisoner medically examined at the hospital for ascertaining the state of her health, pregnancy, duration of pregnancy, probable date of delivery etc. After ascertaining necessary particulars, a report shall be sent to the Dy. Inspector of General of Prisons, stating the date of her admission, term of sentence, the date of release, duration of pregnancy, probable

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date of delivery etc.

Rule 8 states about Births in prison. Rule 9 is in respect

of children of women prisoners. However there is no

provision specifically relating to termination of pregnancy of

women prisoners either convict or under-trial.

17. When a woman prisoner is admitted in prison, she is

medically examined, history of her last menstrual period is

taken and urine pregnancy test is carried out. One register

is maintained in which noting on these aspects is made

including if she is pregnant and if pregnant, procedure stated

in paragraph 5 above is followed. However, we understand

that sometimes a convict or under-trial women prisoner may

not be aware of her pregnancy and she may be unable to

disclose the fact of pregnancy at the time of admission in the

prison. Hence, medical check up of all the women prisoners

who are of reproductive age should be done at least once

every month for two months from their admission in jail to

ascertain whether the woman is pregnant. Moreover, a

woman prisoner if found pregnant should be informed by

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the Medical Officer attached to the prison that she can get

the pregnancy terminated if it is such that it falls under

Section 3(2)(a), (b)(i) or (ii). This onus is cast on the medical

officer. If she wants to terminate the pregnancy, she should

be sent to the civil hospital on an urgent basis to help her to

terminate the pregnancy.

18.

Rule 1 of Section II of Chapter " Non Statutory Rules"

falling in Chapter IV relating to Maharashtra Prisons (Prison

Hospital) Rules 1970 reads as under:-

1. For all administrative purposes, the Medical Officer is subordinate to the Superintendent of the prison except as

regards the medical treatment of the sick. He shall have a free hand in the medical treatment of the inmates of the Hospital whether sick or convalescent or under

observation, subject to Jail discipline. He is under the general control of the I.G. of Prisons.

Though pregnancy is not a sickness, the case of

pregnant prisoner will fall in "Under Observation" category,

hence, the Medical Officer will have the right to decide

whether the prisoner requires termination of pregnancy and

send her to Civil Hospital on urgent basis to help her to

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terminate the pregnancy.

19. If a pregnant prisoner wants to terminate her

pregnancy, then provision of section 3(2)(b)(i) or (ii) are

applicable. She being a prisoner should not be treated

differently than any other pregnant women. We, with all

responsibility state that Section 3 of Medical Termination of

Pregnancy Act bestows a very precious right to a pregnant

woman to say no to motherhood. It is the right of a woman

to be a mother so also it is the right of a woman not be a

mother and her wish has to be respected. This right

emerges from her human right to live with dignity as a

human being in the society and protected as a fundamental

right under Article 21 of the Constitution of India with

reasonable restrictions as contemplated under the Act.

Human rights are natural rights and thus a woman has a

natural right in relation to her body which includes her

willingness to be a mother or her unwillingness to be a

mother.

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20. Section 3(2)(b)(i) is an extension of the human right of

a woman and this needs to be protected. Woman owns her

body and has right over it. Abortion is always a difficult and

careful decision and woman alone should be the choice

maker. A child when born and takes first breath, is a human

entity and thus, unborn foetus cannot be put on a higher

pedestal than the right of a living woman. Thus,

fundamental right under Article 21 of Constitution of India

protects life and personal liberty which covers women. This

right of exercise of reproductive choice though is restricted

by Medical Termination of Pregnancy Act, 1971, it also

recognizes and protects her right to say no to the pregnancy

if her mental or physical health is at stake. Thus, it is a

regulated procedure.

21. We would like to refer to the decision of the Supreme

Court in the case of Suchita Srivastava and Anr. vs.

Chandigarh Administration1 where it is observed that

there is no doubt that a woman's right to make reproductive

1 (2009) 9 SCC 1

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choices is also a dimension of "personal liberty" as

understood under Article 21 of the Constitution of India. It is

important to recognize that reproductive choice can be

exercised to procreate as well as to abstain from procreating.

The crucial consideration is that a woman's right to privacy,

dignity and bodily integrity should be respected."

22.

Advocate Ms. Manjiri Shah stated that she had a

discussion with the Head of the Department of Gynaecology

in J.J. Hospital where women prisoners in Mumbai are

referred in cases of pregnancy. The Out Patient Department

(O.P.D.) timings are 8.00 a.m. to 12.00 p.m and it was found

that generally women prisoners were brought to the hospital

at about 11.30 a.m. to 12.00 p.m., hence, on that day,

though the woman prisoner is examined, it is not possible to

carry out all the tests which are necessary in relation to the

pregnancy. Therefore, it was felt that it would be advisable

that the woman prisoner who is pregnant reaches the

hospital at about 8.00 or 8.30 a.m. and after examination,

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the tests can be prescribed and carried out on the same day

by the afternoon and the tests results would be received by

the evening, hence, by the time, the woman prisoner went

back to the prison, the entire tests and reports are ready due

to which the next step can be decided and the next date of

operation / medical procedure can be decided on that day

itself.

23. In Mumbai, when the prisoners are to be taken to the

Court or hospital, it is the job of L.A. Squad to escort them,

however, it is seen that except in cases of dire medical

emergency, the L.A. Squad gives preference to prisoners

who are to be produced in the Court and sometimes,

sufficient staff is not available to take the prisoners to the

hospital. In case where there is no emergency, then that

prisoner is not taken to the hospital on that day and may be

taken to hospital after a day or two. In case of pregnant

prisoner, if the pregnancy has to be terminated, normally it

has to be done in 12 weeks as set out in Section 3(2)(a) or

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20 weeks as set out in 3(2)(b) of the Act provided it falls

under Section 3(2)(b)(i) or (ii). In cases of pregnancy, every

day is important on account of growth of foetus. Once a

woman prisoner is found to be pregnant and she indicates

that she wants to terminate the pregnancy, she should be

immediately referred to the hospital and it should be ensured

that her pregnancy is terminated. The Jail Administration

and Escort Division to ensure that as far as possible such

lady prisoner reaches the hospital by 8.30 a.m. A female

prisoner cannot have access to facility of medical

termination of pregnancy if her case falls under Section 3 or

5 of the Act, therefore not providing her with the facility

amounts to forcing a woman to continue with a pregnancy

she does not want which by itself constitutes a grave injury

to her mental health and as such would fall under Section

3(2)(b)(i) of the Act. Hence, such a pregnancy can be

lawfully terminated.

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24. We are further informed that in the prison, OPD case

papers are maintained in loose format. In such case, there is

risk of the case papers getting mixed up or lost. In our

opinion, it would be proper that in addition, an 'OPD Register'

is maintained in the jail in which brief details of the patient

are given. The name of the prisoner, medical problem and

follow up should be stated briefly in the register. This OPD

Magistrate who is deputed to visit the jail.

25. In view of the above, directions are given as under:-

1. (i). Upon admission into a jail / prison, every

woman prisoner of child bearing age shall undergo a

Urine Pregnancy Test (UPT) within 5 days of being

admitted to jail.

(ii) Every woman prisoner of child bearing age

shall undergo a second UPT approximately 30 days

after admission into jail / prison in case the UPT

under 1(i) is not positive.

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2. In case, the urine pregnancy test is positive, the

Medical Officer shall inform the prisoner that she

can get the pregnancy terminated if her case falls

under Section 3 or 5 of The Medical Termination of

Pregnancy Act.

3. If the prisoner indicates she wants to terminate the

pregnancy, her statement should be recorded by

the Jail Authority or Medical Officer to that effect

and the record of the statement be maintained. A

copy of that statement be forwarded with the

prisoner when she is referred to the hospital.

4. If the prisoner indicates that she wants to terminate

the pregnancy, the Medical Officer and Jail

Superintendent shall ensure that woman prisoner is

sent on urgent basis to the nearest Government

Hospital to help her terminate the pregnancy. It is

made clear that they shall not wait for any order of

the Court if the case falls under Sections 3 or 5 of

the Act.

5. Every prison shall maintain "Prison OPD Register"

where details of every prisoner examined either by

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the prison medical officer / doctor or visiting doctor

are entered. Such register shall contain in brief (i)

the name of the prisoner; (ii) convict or undertrial

number, (iii) the medical complaint of the prisoner;

(iv) the advice of the doctor (including referral of the

patient to the nearest government Hospital) and (v)

the date for follow up when necessary. The Prison

OPD Register be produced for inspection of the

Sessions Judge / Magistrate deputed to visit the

prison.

6. The Jail Superintendent and escort division to

ensure that such prisoner as well as other prisoners

needing medical treatment in a hospital are sent to

the hospital as far as possible by 8:30 a.m. i.e when

O.P.D opens.

7. After discharge from the said hospital, the prison

authorities shall take due care of the woman

prisoner until she fully recovers from the medical

termination of her pregnancy.

civil smpil 1-16.doc

26. Copy of this order be forwarded for information and

implementation to the following:-

(1) Principal Secretary (Home Department),

Government of Maharashtra;

(2) Principal Secretary (Home Department -

Prisons),

Government of Maharashtra;

(3) Principal Secretary (Women and Health), Government of Maharashtra;

          (4)          Principal Secretary (Health),
                       Government of Maharashtra;
                                    
          (5)          Principal District & Sessions Judge;
                                   
          (6)          Chief Metropolitan Magistrate;

          (7)          Inspector General of Prisons;

          (8)          Addl. Director General (Prisons), Pune;
      


          (9)          Superintendents of all prisons in Maharashtra;
   



          (10)         Medical Officers of Prisons in Maharashtra.