Namiratahezi Mustand Momin vs The Union Of India And Others
2018 Latest Caselaw 943 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO. 970 OF 2018


"XYZ"                                                 ..       Petitioner

                                    Versus

1.    The Union of India                              ..       Respondents
      Through the Secretary,
      Ministry of Law and Justice,
      Shastri Bhawan, C-Wing,
      New Delhi - 110 001.

2.    The State of Maharashtra
      Through the Principal Secretary,
      Public Health Service,
      Mantralaya, Mumbai - 32.

3.    Union of India
      Through its Secretary,
      Ministry of Health and Family Welfare,
      M.H. Division, New Delhi.

4.    The Government Medical College, 
      Aurangabad,
      Through its Superintendent.

Mr.Mohasin Latif Khan Pathan, Advocate for petitioner.
Mr.R.B.Bagul,Standing Counsel for respondent Nos.1 and 3.
Mr.A.B. Girase, Government Pleader for respondent Nos. 2 
and 4.

                                     CORAM :  S.S.SHINDE &
                                              S.M.GAVHANE,JJ.

DATED : 25.01.2018

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JUDGMENT [PER : S.M. GAVHANE,J.] :-

1. Rule. Rule made returnable forthwith. Heard

finally with the consent of learned Counsel for the

parties.

2. The petitioner who is 19 years of age has filed

this petition with following prayer clause (C) :-

"(C) The Hon'ble Court may be pleased to issue appropriate writ, order or direction, directing the Respondent Nos.1 to 4 to permit the petitioner to undergo her, medical termination of pregnancy at medical facility of her choice and at her expenses."

3. The petitioner contends that she is carrying

pregnancy of 18 weeks and during medical treatment,

particularly in Sonographical examination it is found

that there is abnormal growth of pregnancy when the said

test was done on 19.12.2017 at Shanti Imaging Center at

Aurangabad. Thereafter, she has done Anomaly scan at

Shanti Imaging Center at Aurangabad on 01.01.2018 and at

that time the concerned Doctor found that the petitioner

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is carrying pregnancy of 18 weeks and 6 days and it was

noted that the position of pregnancy is fatal. On the

said date the Doctor had opined that the petitioner is

carrying pregnancy of 20-22 weeks. The ultimate

diagnosis of the concerned Doctor from respondent No.4

hospital i.e. the Government Medical College, Aurangabad

is that the pregnancy which the petitioner is carrying is

fatal, due to abnormal growth of fetus. Therefore, by

this petition the petitioner is seeking permission to

allow her to undergo medical termination of pregnancy at

medical facility of her choice and at her expenses.

4. Considering the aforesaid contentions raised in

the petition, by order dated 23.01.2018, we had directed

and referred the petitioner for medical examination

before the Medical Board constituted for the purpose

under the Medical Termination of Pregnancy Act, 1971, at

Aurangabad. The Medical Board was directed to examine

the petitioner and tender the report to this Court today

i.e. on 25.01.2018.

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5. In the light of the above directions, the

petitioner was examined medically by the following five

members of expert committee of the Medical Board, in the

Government Medical College, Aurangabad.

i) Dr.Shrinivas Gadappa (Chairman) Prof. & HOD, OBGY.

ii) Dr.Suhas Jewalikar (Member) Prof. & HOD, Anaesthesia

iii) Dr.Prashant Titare (Member) Asso. Prof. Radiology

iv) Dr.P.S.Patil (Member) Prof. & HOD, Paediatrics.

v) Dr.Ghuge (Member) Prof. & HOD, Psychiatry.

6. The Committee has submitted report dated

24.01.2018 to this Court recording following findings:-

1) From general medical examination she has no active medical complaints.

2) On Obstgetric examination her vital parameters are within normal limits with approximately 20.3 weeks of pregnancy.

3) Ultrasonographic examination suggestive of single live intrauterine foetus of approximately gestatgional age of 20 weeks 3 days with breech presentation with severe oligohydramnios with intrauterine growth restriction. Fetal mild cardiomegaly, borderline hepathomegaly, non visualization of gall bladder stomach bubble, echogenic bowel loops, mild overriding of skull bones. Placentomegaly.

7. The Medical Termination of Pregnancy Act, 1971

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provides for termination of certain pregnancy by the

registered Medical Practitioner. Sections 3, 4 and 5 of the

Act are relevant which read thus :

3. When pregnancies may be terminated by registered medical practitioners -

(1) 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 thepregnancy 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

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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 pregnancy 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 pregnancy 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.

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

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

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Health Officer as a 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. Sections 3 and 4 when not to apply -

(1) The provisions of section 4, and so much of 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 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, 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.

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

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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 relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.

8. We have heard learned Counsel appearing for the

petitioner, learned Standing Counsel appearing for Union

of India and learned Government Pleader for respondent/

State.

9. Learned Counsel for the petitioner submits that

the petitioner is married. She is carrying 20-22 weeks'

pregnancy. The growth of said pregnancy is found

abnormal when the petitioner was examined by the Doctor

on 19.12.2017, 01.01.2018 and 11.01.2018 as stated in the

petition and continuation of said pregnancy is fatal to

the life of the petitioner and therefore even if the

pregnancy is of 20 weeks 3 days as per report submitted

by the Expert Committee, the same can be allowed to be

terminated.

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10. Learned Government Pleader does not dispute the

report submitted by the Expert Committee. He invited our

attention to the ratio laid down in the case of "X" Vs.

Union of India and Ors., (2016) 14 SCC 382 and recent

judgment of Division Bench of this Court at Principal

Seat in Writ Petition (St) No. 36727 of 2017 decided on

09.01.2018 (Shaikh Ayesha Khatoon Vs. Union of India &

Ors.) (Coram : R.M.Borde & R.G. Ketkar,JJ). In the case

of "X" Vs. Union of India & Ors. (cited Supra), the

petitioner who was carrying pregnancy of about 23-24

weeks was allowed to terminate her pregnancy by the

Hon'ble Supreme Court, considering the opinion of the

Medical Board, specially constituted in pursuance of

directions 7of the Supreme Court, as it was necessary to

save life of the pregnant woman. The Medical Board was

of the opinion that the risk of continuation of pregnancy

can gravely endanger physical and mental health of the

petitioner. In the case of Shaikh Ayesha Khatoon

(Supra), the petitioner who was carrying 26.5 weeks'

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pregnancy was permitted to undergo medical termination of

pregnancy at the medical facility of her choice,

considering the opinion of the Committee that upon

examination and after carefully studying multiple

Sonography report, it is confirmed that the fetus suffers

from serious neurological abnormility. In the case of

Shaikh Ayesha Khatoon (Supra), it was observed in para 11

of the said judgment as under :-

"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 provision of section 4, and so much of the provision 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 practitioner, 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 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

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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."

11. We have carefully considered the submissions

made by the learned Counsel for the petitioner, the

learned Government Pleader appearing for the respondent/

State and learned Counsel appearing for respondent/Union.

So also we have considered the contentions of the

petitioner, medical reports submitted by the petitioner

and the report of Medical Board/Expert Committee dated

24.01.2018. We have also perused the affidavit of

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Mohammad Mustaeed Abdul Hakim Momin, husband of the

petitioner, with copies of Nikahnama (Marriage

Certificate) and their Adhar Card. Said affidavit and

annexures are taken on record and collectively marked "X"

for the purpose of identification. There is no dispute

that the petitioner is married. She is carrying 20.3

week's pregnancy. Exh."A" (page No.9) report of anomaly

scan issued by Shanti Imaging Center proeduced by the

petitioner, signed by two Doctors under head

"Impression"- states that 19 wks 1 days single live

intrauterine gestation changing presentation Grade I

echogenic bowel loops, Gall bladder not well visualized,

low lying placenta suggest follow up after 1-2 wks.

Note : all anomalies can't be ruled out due to fetal

position, liquor, maternal fat, infections etc". So also

Exh."B" (page 11) report of anomaly scan issued by Shanti

Imaging Center on 01.01.2018 under the heaed "Impression"

states that, "18 wks 6 days single live intrauterine

gestation BREECH presentation with highly echogenic bowel

loops Grade II - III, nonvisualization of gall bladder

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compressed skull bones, placentomegaly, severe oligo,

with IUGR s/o? Cystic fibrosis suggest HB 1AC,

correlation TO R/O ANUEPLOIDY/DM/ANEAMIA. Note : all

anomolies can't be ruled out due to fetal position,

liquor, maternal fat, infections etc." Exh. "C" (page

12) the Medical Papers shows that evidence of SLIUG of

AGA l9 weeks 2 days with EFW - 330 gm, liq-reduced AFI 2

to 3 cm cardiomegaly, gall bladder and stomach bubble not

seen.

12. As referred earlier in detail, the expert

committee report dated 24.01.2018 shows that

Ultrasonographic examination suggests single live

intrauterine foetus of approx. gestational age of 20

weeks 3 days with breech presentation with severe

oligohydramnious with intrauterine growth restriction.

Fetal mild cardiomegaly, borderline hepathomegaly, non

visualization of gall bladder stomach bubble, echogenic

bowel loops, mild overriding of skull bones.

Placentomegaly.

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13. Thus, on the basis of above said finding No.3

given by the Expert Committee, it can be said that the

fetus is abnormal. The conclusion No.2 given by the

expert committee in its report is that if pregnancy is

continued the foetus may land in intrauterine fetal death

which may affect the health of the mother. Considering

this conclusion of the expert committee, it can be said

that there can be fetal death, if the pregnancy is

continued and the said death may affect the health of the

petitioner/mother.

14. Considering the above finding and conclusion

given by the committee in its report dated 24.01.2018 and

applying the ratio laid down in the decisions in the case

of "X" Vs. Union of India (supra) and Shaikh Ayesha

Khatoon (Supra), we hold that the petitioner needs to be

permitted to terminate the pregnancy, in the light of

provisions under section 3(2)(b)(i) and (ii) and section

5 of The Medical Termination of Pregnancy Act, 1971, by

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allowing the petition.

15. Learned advocate appearing for the petitioner,

on instructions of petitioner and her husband who is

present in the Court submits that the petitioner wishes

to undergo the procedure of termination of pregnancy in

Mahatma Gandhi Mission Medical College and Hospital,

Aurangabad. Learned Government Pleader, on instructions

from the Dean of Government Medical College, Aurangabad,

informed that Mahatma Gandhi Mission Medical College and

Hospital, Aurangabad is approved for the aforesaid

purpose by the Government under the said Act and having

facility of medical termination as per the provisions of

the Medical Termination of Pregnancy Act, 1971. In the

light of discussion in foregoing paragraphs, we pass the

following order:-

i) The petitioner is permitted to undergo medical

termination of pregnancy.

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ii)             The petitioner undertakes to report to  Mahatma 

Gandhi Mission Medical College and Hospital, Aurangabad

for carrying out the procedure of medical termination of

pregnancy immediately and in any case within two days

from today.

iii) The Dean, Mahatma Gandhi Mission Medical

College and Hospital, Aurangabad shall arrange to

complete the procedure of medical termination of

pregnancy of the petitioner under supervision of team of

experts and two members of said team shall be expert in

Gynecology and Obstetric.

iv) The learned Advocate appearing for the

petitioner on instructions submits that the petitioner

will bear medical expenses, if any, of the procedure of

termination of pregnancy in Mahatma Gandhi Mission

Medical College and Hospital, Aurangabad.

v)              It is made clear that the Doctors who have put 





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their opinions on record shall have the immunity in the

event of occurrence of any litigation arising out of the

instant petition.

vi) Rule is made absolute accordingly. There shall

be no order as to costs.

vii) Parties to act upon authenticated copy of this

judgment.

[S.M.GAVHANE,J.] [S.S.SHINDE,J.]

snk/2018/SEP18/wp970.18jud