Bombay High Court
Shaikh Ayesha Khatoon vs Union Of India Through The ... on 9 January, 2018
Bench: R.M. Borde
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903.WPST.36727-17-JUDGMENT.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition (ST) NO. 36727 OF 2017
Shaikh Ayesha Khatoon,
Room No.112A, Millate Azad
Welfare Society, Ambuj Wadi,
Azad Nagar, Malwani,
Malad (W), Mumbai - 400 095. ...Petitioner
Versus
1. Union of India,
through the Secretary,
Ministry of Law and Justice,
Shastri Bhawan,
"C" Wing, New Delhi-110001.
2. State of Maharashtra,
through the Principal Secretary,
Public Health Services,
Mantralaya, Mumbai 23.
3. Ministry of Health and
Family Welfare,
through its Secretary,
M.H. Division, New Delhi. ..Respondents
....
Ms. Meenaz Kakalia i/b. Kranti L.C., Advocate for the Petitioner.
Mr. N.C. Walimbe, A.G.P., for Respondent No.2 - State.
Ms. Shehnaz V. Bharucha a/w. Ashok Verma, A.A. Ansari, Advocate for
Respondent Nos.1 and 3.
....
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CORAM : R.M. BORDE &
R. G. KETKAR, JJ.
DATE : 09th JANUARY, 2018
ORAL JUDGMENT: [PER R.M. BORDE, J.]
Heard. Rule. With the consent of the parties, Rule made
returnable forthwith and the Petition is taken up for final disposal at the
admission stage.
2. The petitioner is a lady undergoing 27 th week of pregnancy
and is praying for issuance of a direction to the respondents to allow
her to undergo medical termination of pregnancy at medical facility of
her choice and at her expenses. It is the contention of the petitioner
that on Sonographical examination of the fetus it was revealed that it
(fetus) suffers from several foetal anomalies including a congenital
malformation. The report of Sonography dated 18.12.2017 is annexed
at Exhibit 'A' to the petition. The Sonologist on examination reported
several foetal anomalies as recorded below:
(a) Inencephaly
(b) Cerebellar hypoplasia
(c) Hydranencephaly
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(d) Laryngeal Atresia
(e) Atrium - Venticular septal defect
(f) Double outlet single ventricle
(g) Stomach not visible
3. It is reported that above congenital malformations increased
the likelihood of an underlying genetic abnormality which could be
ruled out with invasive testing and micro array. It is further reported
that considering the number and severity of the malformations; chances
of independent intact neonatal survival appear less. In view of the
report of the Sonologist, the petitioner has approached this Court
seeking relief, as sought above. The petitioner has also requested to
refer her for further examination to Medical Committee in order to
confirm the diagnosis of the Sonologist and to assist the Court in
arriving at a decision as regards the request made by the petitioner in
the instant Petition.
4. Considering this, the learned Vacation Bench while directing
issuance of notice to the respondents on 2.1.2018 directed respondent
No.2 State of Maharashtra to get the petitioner examined by the
Medical Board of Sir J.J. Groups of Hospitals, Mumbai consisting of
Dean of the hospital, Head of Department (Gynecology), Professor and
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Head of Department of Pediatric / Cardiac Surgeon, Professor and Head
of Department of Radiology and Psychiatry and any other expert in the
field.
5. The petitioner appeared before the Committee and she was
medically and radiologically examined on 3.1.2018. The USG
impressions recorded in the report are thus :
USG Impressions Single live intrauterine gestation of mean
gestational age 26 weeks and 5 days with gross
polyhydramnios and multiple severe - cranial,
complex cardiac and bowel anomalies as
described above. Suggest cardiology opinion
for the cardiac anomaly and genetic work up
for underlying chromosomal anomalies as
multiple fetal abnormalities are seen.
6. The observations of Associate Professor of Department of
Pediatrics, Professor & Head of Department of Pediatric Surgery,
Associate Professor of Department of Neurosurgery as well as the
observations of Professor & Head of Department of Radiology and
Professor & Head of Department of Psychiatry are as narrated below:
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Observations of Dr. Subhash Walinjkar (Associate Professor of
Department of Pediatrics) ::
USG report suggest single live intrauterine
gestation of mean gestational age 26 weeks and
5 days with gross polyhydramnios and multiple
severe - cranial, complex cardiac and bowel
anomalies. In view of this grossly abnormal USG
report is a high chance of fetal Morbidity and
Mortality.
Observations of Dr. D.R. Kulkarni (Professor and Head of
Department of Pediatric Surgery) ::
USG report suggest single live intrauterine
gestation of mean gestational age 26 weeks and
5 days with gross polyhydramnios and multiple
severe - cranial, complex cardiac and bowel
anomalies. In view of this grossly abnormal USG
report is a high chance of fetal Morbidity and
Mortality.
Observations of Dr. Sachin Giri (Associate Professor of
Department of Neurosurgery) ::
USG finding at Sir J.J. Hospital on 03/01/2018.
USG at Sir. J.J. Hospital on 03/01/2018 shows
Gross hydrocephalus with paper thin cortex. The
lateral ventricles and the third ventricles are
dilated. The posterior fossa is Hypoplastic. The
head appears large due to excessive fluid.
There are associated cardiac & intra-abdominal
as well as thoracic anomalies. These findings
suggest that there is high chance of morbidity &
mortality
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Observations of Dr. Shilpa Domkundwar (Professor & Head of
Department of Radiology) ::
OBSTETRICS
PRESENTATION CEPHALIC AT UMBILICAL CORD 3 VESSEL NO CORD
PRESENT AROUND NECK,
CARDIAC ACTIVITY SEEN 145/MIN FETAL MOVEMENTS PRESENT
PLACENTA POSTERIOR CERVICAL, LENGTH ADEQUATE, 4 CM
PLACENTAL, NORMAL, INTERNAL OS CLOSED
THICKNESS NO
RETROPLACENTAL
CLOTS
FINDINGS :
Congenital Scan :
ENTITY REMARK ENTITY REMARK
SKULL ABNORMAL B/L KIDNEYS NORMAL
CVJ NORMAL GASTRIC BUBBLE NOT SEEN
SPINE NORMAL BLADDER BUBBLE PRESENT
BRAIN PARENCHYMA THINNED OUT LIMBS VISUALISSED FOUR
HEART COMPLEX ABNORMALITY VESSELS IN CORD THREE
Fetal Biometry : AFI : 20CM, POLYHYDRAMNIOS
BPD 77 mm 31 weeks 0 days
HC 284 mm 31 weeks 1 days
AC 220 mm 26 weeks 4 days
FL 48 mm 26 weeks 1 days
TIB 41 mm 26 weeks 6 days
FIB 39 mm 24 weeks 5 days
HUM 45 mm 26 weeks 5 days
RAD 36 mm 25 weeks 6 days
ULN 40 mm 26 weeks 1 days
MGA 26 weeks 5 days
EFW 1019+/- 149 gms EDD 05/04/2018
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Gross hydrocephalus is seen with paper thin
cortex. The lateral ventricles and the third
ventricles are dailated. The posterior fossa is
Hypoplastic. The head appears large due to
excessive fluid.
There is a small cystic structure with gut
signature that shows repeated filling and
emptying retrocardiac in location with
infradiaphragmatic extension mostly suggestive
of stomach herniation into the Mediastinum.
The bowel is not well seen ? Compressed ?
Cause. Anal pit is appreciated.
Gross fetal hepatomegaly is seen with abnormal
multiple intrahepatic venous channels.
The fetal heart shows complex abnormalities.
The LA is Hypoplastic. There is a fuctional
single ventricle with RV configuration and a
single atriventricular valve is appreciated. ASD
is seen. The ventricle has double outlet with
parallel outflow tracts with ? Fuctional
transposition. The SVC is prominent. Abnormal
venous channel is seen to drain into the SVC
from the contralateral side with pulmonary
venous drainage to it.
The infradiaphragmatic IVC is not appreciated.
Impression : Single live intrauterine gestation of
mean gestational age 26 weeks and 5 days with
gross polyhydramnios and multiple severe -
cranial, complex, cardiac and bowel anomalies
as described above. Suggest cardiology opinion
for the cardiac anomaly and genetic work up for
underlying chromosomal anomalies as multiple
fetal abnormalities are seen.
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Observations of Dr. V. P. Kale (Professor & Head of Department
of Psychiatry) ::
No Evidence of any Psychopathology at present.
She can take her own decision.
7. The Committee has recorded its opinion as narrated below :
" COMMITTEE OPINION
UPON EXAMINATION & AFTER CAREFUL
STUDY OF MULTIPLE SONOGRAPHY REPORTS, IT IS
CONFIRMED THAT THE FETUS SUFFERS FROM
SERIOUS NEUROLOGICAL, CARDIAC & BOWEL
ABNORMALITIES WITH A VERY HIGH CHANCE OF
MORBIDITY & MORTALITY.
THE WOMAN WAS BEEN EXPLAINED ABOUT
THE OUTCOME IN THE LANGUAGE SHE
UNDERSTANDS.
THE CONDITION OF THE FETUS FULFILLS
THE CRITERIA OF "SUBSTANTIAL RISK OF SERIOUS
PHYSICAL HANDICAP" IN THE FETUS.
THE PREGNANT WOMAN HAS VOLUNTARILY
EXPRESSED HER DESIRE TO TERMINATE THE
PREGNANCY AND IS WELL INFORMED ABOUT THE
NATURE OF THE CONDITION OF FETUS AND ITS
OUTCOME. SHE IS EXTREMELY ANGUISHED WITH
THE CONDITION OF THE FETUS INUTERO.
THE PREGNANCY HAS ADVANCED TO 27
WEEKS AND IS BEYOND 20 WEEKS CUT OF THE
MEDICAL TERMINATION OF PREGNANCY ACT.
HENCE SHE HAS APPROACHED HONOURABLE
COURT FOR TERMINATION OF PREGNANCY.
AT THIS STAGE OF A PREGNANCY, THE RISK
OF TERMINATION REMAINS THE SAME AS THAT OF
NATURAL LABOUR AT TERM.
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THUS IF THE COURT PERMITS THE
PREGNANCY CAN BE TERMINATED AS DESIRED BY
THE WOMAN."
8. There is a little doubt that there are foetal anomalies
reported and the chances of survival of the fetus appear less and there
is a substantial risk of severe physical handicap. The learned Counsel
appearing on behalf of the petitioner, therefore, urges that this a fit case
for according permission to the petitioner to undergo medical
termination at the center of her choice.
9. The Medical Termination of Pregnancy Act, 1971 is enacted
with a view to providing for the termination of certain pregnancies by
registered medical practitioners and for matters connected therewith or
incidental thereto. When the pregnancy is to be terminated by
registered medical practitioners has been prescribed in Section 3 of the
Act. Sub-section (2) of Section 3 provides that 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,
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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 be suffer form such
physical or mental abnormalities as to be seriously handicapped.
10. Section 3(2)(b)(i) & (ii) as well as Section 5(1) of the Act of
1971 read thus:
"3. When pregnancies may be terminated by
registered medical practitioners.--
(1) xxxx
(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered medical
practitioner,--
(a) xxxx
(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 form such physical or
mental abnormalities as to be seriously
handicapped."
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"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."
11. Section 3 of the Act of 1971 thus prescribes the outer limit of
20 weeks in the matter of termination of pregnancy in certain
circumstances enumerated in Clauses (i) & (ii) of sub-section 2(b) of
Section 3. Section 5 carves out an exception to Sections 3 & 4. It is
provided that 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. It is contended
relying on the provisions of sub-section (1) of Section 5 by the
petitioner that the bar contained in sub-section (2) of Section 3 laying
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down the conditions for according permission to terminate the
pregnancy is not absolute bar and in appropriate cases such permission
can be accorded. Section 5 of the Act of 1971 carves out an exception in
relation to the outer limit provided under sub-section (2) of Section 3 of
the Act of 1971 i.e. 20 weeks in case where the termination of such
pregnancy is immediately necessary to save the life of the pregnant
woman. It is the contention of the petitioner that firstly the trauma that
the petitioner is likely to suffer is life threatening and it shall be
construed that exercise of a choice in the event there are foetal
abnormalities found and the chances of survives of the baby, if allowed
to take birth, are minimum, is a matter to be considered within the
parameters of Section 5 of the Act of 1971. Apart from this, the
petitioner contends that the provisions of sub-section (2) including
clauses (i) & (ii) of sub-section (2)(b) of Section 3 are required to be
read in Section 5 except the outer limit of twenty weeks that has been
provided in sub-section (2)(b) of Section 3 of the Act of 1971.
12. The petitioner thus contends that if 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, it will be open for the
Court to accord permission to terminate the pregnancy by taking
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recourse to Section 5 of the Act of 1971. It is further contended that
the concluding portion of Section 5 prescribing the limitation in
permitting such a choice or issuing direction in respect of termination of
the pregnancy only in the event to save the life of the pregnant woman
shall have to be interpreted harmoniously and looking to the object of
the provision. It also needs to be considered that a pregnant woman
has a right to make reproductive choices is also a dimension of
"personal liberty" as understood under Article 21 of the Constitution of
India. In this context reliance can be placed on the observations of
Hon'ble Supreme Court in the matter of Suchita Srivastava vs.
Chandigarh Administration reported in 2009 (9) SCC 1. In
paragraph-11 of said judgment, it is observed by the Hon'ble Supreme
Court as narrated below :
"11. A plain reading of the above-quoted provision
makes it clear that Indian law allows for abortion only if
the specified conditions are met. When the MTP Act was
first enacted in 1971 it was largely modelled on the
Abortion Act of 1967 which had been passed in the United
Kingdom. The legislative intent was to provide a qualified
'right to abortion' and the termination of pregnancy has
never been recognised as a normal recourse for expecting
mothers. There is no doubt that a woman's right to make
reproductive choices is also a dimension of 'personal liberty'
as understood under Article 21 of the Constitution of India.
It is important to recognise that reproductive choices can be
exercised to procreate as well as to abstain from
procreating. The crucial consideration is that a woman's
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right to privacy, dignity and bodily integrity should be
respected. This means that there should be no restriction
whatsoever on the exercise of reproductive choices such as
a woman's right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive
methods. Furthermore, women are also free to choose
birth-control methods such as undergoing sterilisation
procedures. Taken to their logical conclusion, reproductive
rights include a woman's entitlement to carry a pregnancy
to its full term, to give birth and to subsequently raise
children. However, in the case of pregnant women there is
also a 'compelling state interest' in protecting the life of the
prospective child. Therefore, the termination of a
pregnancy is only permitted when the conditions specified
in the applicable statute have been fulfilled. Hence, the
provisions of the MTP Act, 1971 can also be viewed as
reasonable restrictions that have been placed on the
exercise of reproductive choices."
13. It is further observed that ordinarily a pregnancy can be
terminated only when a medical practitioner is satisfied that a
'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' [as
per Section 3(2)(b)(i) of the Act of 1971] or when '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' [as per Section
3(2)(b)(ii) of the Act of 1971]. It is true that Clauses (i) & (ii) of sub-
section 2(b) of Section 3 are attracted in the case where the length of
the pregnancy exceeds twelve weeks but does not exceed twenty weeks.
However, as has been recorded above Section 5 permits termination of
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pregnancy by a registered medical practitioner in 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. It shall
also have to be construed that Section 5 brings within its ambit the
provisions of Section 4 and so much of the provisions of sub- section
(2) of Section 3 of the Act of 1971 except the limitation in respect of
length of the pregnancy of 20 weeks as provided in sub-section (2)(b)
of Section 3 of the Act of 1971. It would thus 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 of 1971 and it
would be relevant to consider the threat perception and substantial risk
involved if the child were to born, it would suffer from such
physical or mental abnormalities as to be seriously handicapped. The
contingencies laid down in Clauses (i) & (ii) of sub-section (2)(b) of
Section 3 shall therefore equally apply to the request of a pregnant
woman seeking permission to terminate the pregnancy beyond 20
weeks and accordingly Section 5(1) will have to be construed, to meet
the object and purpose of enactment and to promote cause of justice.
14. As has been recorded above, the freedom of a pregnant
woman of making choice of reproduction which is integral part of
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"personal liberty", whether to continue with the pregnancy or otherwise
cannot be taken away. It shall also be taken into consideration that
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 continuance of pregnancy is harmful to the
mental health of a pregnant woman, then that is a good and legal
ground to allow termination of pregnancy if all the conditions
incorporated in legal provision are met. In the instant matter the
petitioner claims that it would be injurious to her mental health to
continue with the pregnancy since there are severe foetal abnormalities
noticed and it would also be violative of her "personal liberty" to deny
her the choice to terminate the pregnancy. The provisions of Section 5
of the Act of 1971 shall have to be interpreted in the manner for
advancing the cause of justice. In this context it would be appropriate to
refer to the judgment of Division Bench of this Court in the matter of
High Court on its own motion vs. the State of Maharashtra, reported
in 2017 Cri L.J. 218. In paragraph-13 of the judgment, it is observed
thus:
"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
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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 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."
15. While interpreting the provisions of Section 5 of the Act of
1971, it must be borne in mind the principle that the section must be
construed as a whole whether or not one part is a saving clause and
similarly elementary rule of construction of section is made of all
the parts together and that it is not permissible to omit any part of
it; the whole section must be read together. The words of Statute are
first understood in their natural, ordinary and popular sense and phrases
and sentences are construed according to their grammatical meaning
unless there be something in the context, or in the object of the statute
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in which they occur or in the circumstances in which they are used, to
show that they were used in special sense different from their ordinary
grammatical meaning. The basic principle that while interpreting the
provisions of a Statute one can neither add nor subtract even a single
word, has to be kept in mind. A section is to be interpreted by reading
all of its parts together, and it is not permissible to omit any part thereof.
The Court cannot proceed with the assumption that the legislature,
while enacting the Statute has committed a mistake; it must proceed on
the footing that the legislature intended what it has said; even if there is
some defect in the phraseology used by it in framing the statute, it is not
open to the Court to add and amend, or by construction, make up for
the deficiencies, which has been left in the Act. The Court can only
iron out the creases but while doing so, it must not alter the fabric,
of which an Act is woven. The Court, while interpreting statutory
provisions, cannot add words to a Statute, or read words into it which
are not part of it, especially when a literal reading of the same produces
an intelligible result. [Vide Nalinakhya Bysack v. Shyam Sunder Haldar
and ors., AIR 1953 SC 148; Sri Ram Narain Medhi v. State of Bombay,
AIR 1959 SC 459; M. Pentiah and Ors. v. Muddala Veeramallappa and
Ors., AIR 1961 SC 1107; The Balasinor Nagrik Co-operative Bank Ltd. v.
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Babubhai Shankerlal Pandya and Ors., AIR 1987 SC 849; and Dadi
Jagannadham v. Jammulu Ramulu and Ors., (2001) 7 SCC 71].
16. In the matter of New India Assurance Company Ltd. v.
Nusli Neville Wadia and another, (2008) 3 SCC 279, the Hon'ble
Supreme Court while referring to the analysis of purposive construction
has observed in paragraph-52 as narrated below:
"52. Barak in his exhaustive work on 'Purposive
Construction' explains various meanings attributed to
the term 'purpose'. It would be in the fitness of
discussion to refer to Purposive Construction in Barak's
words:
"Hart and Sachs also appear to treat
'purpose' as a subjective concept. I say
'appear' because, although Hart and Sachs
claim that the interpreter should imagine
himself or herself in the legislator's shoes,
they introduce two elements of objectivity:
First, the interpreter should assume that the
legislature is composed of reasonable
people seeking to achieve reasonable goals
in a reasonable manner; and second, the
interpreter should accept the non-rebuttable
presumption that members of the legislative
body sought to fulfill their constitutional
duties in good faith. This formulation
allows the interpreter to inquire not into the
subjective intent of the author, but rather
the intent the author would have had, had
he or she acted reasonably."
(Aharon Barak, Purposive Interpretation in Law
(2007) at pg. 87)
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17. A statute must be interpreted having regard to the purport
and object of the Act. The doctrine of purposive construction must be
resorted to. It would not be permissible for the Court to construe the
provisions in such a manner which would destroy the very purpose for
which the same was enacted. The principles in regard to the approach of
the Court in interpreting the provisions of a statute with the change in
the societal condition must also be borne in mind. The rules of
purposive construction have to be resorted to which would require the
construction of the Act in such a manner so as to see that the object of
the Act is fulfilled.
18. The two principles of construction - one relating to casus
omissus and the other in regard to reading the statute as a whole appear
to be well settled. In regard to the latter principle, the following
statement of law appears in Maxwell at page 47:
"A statute is to be read as a whole - "It was resolved in
the case of Lincoln Colleges case (1595) 3 Co Rep.
58B, at page 59b that the good expositor of an Act of
Parliament should make construction on all the parts
together, and not of one part only by itself. Every
clause of a statute is to be construed with reference to
the context and other clauses of the act, so as, as far as
possible, to make a consistent enactment of the whole
statute. (Per Lord Davey in Canada Sugar Refining Co.
Ltd. v. R. 1898 Act 735 (Canada)."
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19. As has been observed by the Supreme Court in the matter of
RBI Vs. Peerless General Finance and Investment Co. Ltd., reported in
(1987) 1 SCC 424, the textual interpretation that matches the
contextual is known to be best interpretation. It is observed in
paragraph 33 of the judgment, thus:
"33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a
whole and then section by section, clause by clause,
phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context,
its scheme, the sections, clauses, phrases and words
may take colour and appear different than when the
statute is looked at without the glasses provided by the
context. With these glasses we must look at the Act as
a whole and discover what each section, each clause,
each phrase and each word is meant and designed to
say as to fit into the scheme of the entire Act. No part
of a statute and no word of a statute can be construed
in isolation. Statutes have to be construed so that
every word has a place and everything is in its
place..."
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20. Generally speaking, Statutes are classified in fourfold
manner. Firstly, the statutes are remedial, secondly they are declaratory,
thirdly they are procedural and lastly they are penal or disentitling. One
has to find out the character of the statute as to whether it is penal or
not, so as to apply principles of strict construction. In the instant matter
it cannot be said that the provisions of the enactment which are relevant
for consideration are penal in character. In a way, the provision is
remedial and procedural. The provision, therefore, cannot be applied
the standards as regards interpretation of a Statute which is penal in
character.
21. On analysis of the judgments and the narrations, as recorded
above, one must while interpreting the provisions of law, bear in mind
that the provision as to be interpreted by reading all of its parts together
and it is not permissible to omit any part thereof. The golden rule of
interpretation is that the provisions of law have to be read as it is
without adding or subtracting anything therefrom. In an appropriate
case, the Court can only iron out the creases but while doing so, it must
not alter the fabric, of which an Act is woven.
22. In the instant matter, on reading of Section 5 of the Act of
1971, it does transpire that the contingencies and the parameters laid
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down in clauses (i) & (ii) of sub-section (2)(b) of Section 3 shall have
to be read in Section 5 except the bar of limitation as provided in
Section 3(2)(b) of the Act of 1971. It would not be appropriate to over
look the contingencies laid down in clauses (i) & (ii) of sub-section (2)
(b) of Section 3 while considering the request of a pregnant woman for
termination of the pregnancy if the conditions laid down in clauses (i) &
(ii) of sub-section (2)(b) of Section 3 are satisfied it would provide a
good ground for exercise of jurisdiction under Section 5 of the Act of
1971.
23. The Ministry of Health and Family Welfare, Government of
Maharashtra has prepared the MTP (Amendment) Bill and the
notification in that regard was published on 29.10.2014. The State
Government has proposed amendment to Section 3 of the Act of 1973
and clause (C) is proposed to be added which reads thus :
"(C) the provisions of sub-section (2) of section 3 as
relate to the length of the pregnancy shall not apply to
the termination of a pregnancy by a registered health
care provider where the termination of such pregnancy
is necessitated by the diagnosis of any of the
substantial foetal abnormalities as may be prescribed."
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24. Considering the above proposed amendment, according to
us, the interpretation which we have put to Section 5 of the Act of 1971
appears to be a logical and same is in consonance with the proposed
changes as suggested by the State in the MTP (Amendment) Bill notified
on 29.10.2014.
25. The petitioner has restricted the claim in the petition in
respect of prayer clause (b)(ii) of paragraph-56 of the Petition. The
other prayers recorded by the petitioner in the instant petition are not
pressed. Even otherwise, in view of the interpretation which we have
put to Section 5 of the Act of 1971, prayer clause (a), as requested by
the petitioner, does not need consideration.
26. For the reasons recorded above, the Writ Petition is allowed.
The petitioner is permitted to undergo medical termination of pregnancy
at a medical facility of her choice. The petitioner undertakes to report to
the approved center for carrying out the procedure of medical
termination of pregnancy within two days from today.
27. The Counsel appearing for the petitioner states, on
instructions, that the petitioner will bear the medical expenses of the
procedure of medical termination of pregnancy at a medical facility of
her choice.
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28. It is clarified at this stage that the petitioner has been
sensitized by the Committee/Medical Board about the risk factors
involved and it would be open for the petitioner to undergo the
procedure of medical termination of pregnancy at her own risk and
consequences. It is further made clear that the Doctors who have put
their opinions on record shall have the immunity in the event of
occurrence of any litigation arising out of the instant Petition.
29. Rule is accordingly made absolute. There shall be no order
as to costs. The operative part of this judgment shall be uploaded today
and all concerned parties, including concerned approved Medical
Center, to act upon the authenticated copy of the operative order.
(R. G. KETKAR, J.) (R.M. BORDE, J.)
Deshmane (PS)
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