X vs State Of Maharashtra Thr. Prin. ...
2022 Latest Caselaw 12933 Bom

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                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 CIVIL APPELLATE JURISDICTION
          Digitally signed by
KANCHAN   KANCHAN VINOD
VINOD     MAYEKAR
          Date: 2022.12.14
MAYEKAR   10:47:22 +0530




                                                WRIT PETITION NO. 15057 OF 2022

                                X                                                 ..... Petitioner

                                        VERSUS

                                The State of Maharashtra                          ..... Respondent

                                Ms.Rebecca Gonsalvez for the Petitioner.

                                Smt. M.P.Thakur, A.G.P. for the State.

                                                          CORAM: R. D. DHANUKA AND
                                                                 M.M. SATHAYE, JJ.

DATE : 13TH DECEMBER, 2022

P.C:-

By this petition filed under Article 226 of the Constitution of

India, the petitioner seeks writ of mandamus directing the respondent

to permit the petitioner to terminate her pregnancy in any duly

approved and equipped hospital and for other reliefs.

2. The petitioner has approached this Court for permission for

medical termination of the pregnancy on the ground that the Foetal

echocardiography report shows that foetal echocardiography is S/o

hypoplastic LV Asc AO & aortic arch with antegrade flow. KVM

9 - WP 15057 OF 2022.doc

3. By an order dated 6th December, 2022 this Court directed to

constitute the Medical Board, directed the petitioner to remain present

for the purpose of examination before the Medical Board and directed

the Medical Board to submit a report.

4. In pursuance of the said order passed by this Court, the Medical

Board has submitted a report before this Court on 8 th December, 2022

after carrying out various investigations.

5. The Medical Board recorded additional findings and

observations as under :-

Record additional findings and observations here, if any (Also include any risk to the health of girl/woman in case of continuation of pregnancy as well as termination) :-

On examination gestational age is of 28 weeks, if decision of termination is taken, following complications can occur during delivery- (1) Delivery time is prolonged as she is 28 weeks gestation.

(2) Patient may require surgical intervention and intra-operative and post-operative complications is similar to other surgeries.

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(3) According to USG done on 8th December, 2022, the gestational age is 27 weeks and so, there are chances of survival of fetus requiring NICU admission and management.

(4) For mother in future pregnancy, chances of complications are more likely.

(5) If patient requires surgical intervention, she becomes a High Risk Case of hysterotomy. So, in the next pregnancy, she can have chances of Uterine Scar dehiscence, Scar rupture.

6. The Medical Board after recording the additional findings and

observations recommended termination of the pregnancy. The

recommendation is as under :-

Recommendation by Medical Board for termination (choose one and provide any additional recommendations of the panel in the box below if any) :- Recommended - (if yes, please mention the methods) :- Tab. Misoprostol 200 mcg per vaginally 6 hourly. Key recommendations of the panel (if any) with justification :-

      CONGENITAL ANAMALY - HYPOPLASTIC LV
      WITH       ASCENDING         AND       AORTIC      ARCH
      ANTEGRADE FLOW.
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                                                     9 - WP 15057 OF 2022.doc

7. Learned counsel for the petitioner placed reliance on the

judgment of Division Bench of this Court in Writ Petition No. 10835

of 2018, 2019 SCC OnLine Bom 560 and submitted that subject to

various safeguards after considering atleast similar medical report this

Court has framed guidelines as to in what circumstances, Court can

permit medical termination of pregnancy. Learned counsel placed

reliance on paragraphs 125 to 134 and 138 of the said judgment.

8. Learned counsel for the petitioner also placed reliance on the

judgment of this Court in Writ Petition (L) No. 31015 of 2021

delivered on 31st December, 2021, judgment delivered on 26th August,

2021 in Writ Petition (L) No. 18582 of 2021, judgment delivered on

28th September, 2022 in Writ Petition (L) No. 30453 of 2022 and

submitted that in those cases though the pregnancy was more than 28

weeks, this Court has granted permission to terminate such pregnancy.

9. Upon raising a query by this Court that the additional findings

recorded by the Medical Board indicates that if the patient requires

surgical intervention, she becomes a high risk case of hysterotomy and

so, in the next pregnancy, she can have chances of Uterine Scar KVM

9 - WP 15057 OF 2022.doc

dehiscence, Scar rupture, learned counsel for the petitioner states that

inspite of such additional findings and observations made by the

Medical Board, her client is ready and willing to proceed with the

termination of pregnancy at her own risk. Statement is accepted.

10. Ms.Thakur, learned A.G.P. for the State opposes this writ petition

on the ground that the medical report does not favour such termination

of pregnancy and more particularly on the ground that the delivery time

is prolonged as she is since 28 weeks gestation.

11. We have perused the report submitted by the Medical Board and

also the additional findings and observations made in the said report.

We also perused the judgments relied upon by the learned counsel for

the petitioner in support of her submission that though in those cases,

medical pregnancy was more than 28 weeks, this Court has granted

permission for termination of pregnancy subject to various safeguards

provided by this Court in the said judgment in SCC OnLine Bom 560.

12. Learned counsel for the petitioner states that the safeguards

provided by this Court in the said judgment and the subsequent KVM

9 - WP 15057 OF 2022.doc

judgments placed in service by the learned counsel can be provided in

this case also. Statement is accepted.

13. The petitioner has voluntarily expressed her desire to terminate

the pregnancy and is well informed about the nature of the condition of

foetus and its outcome. It is made clear that the pregnancy can be

terminated as desired by the petitioner with due risk.

14. We accordingly pass the following order :-

(a) The petitioner is permitted to terminate the

pregnancy at Vaishampyan Memorial Government

Medical College, Solapur. The petitioner is already

admitted in the hospital and shall remain present for

examination tomorrow at 11.00 a.m.

(b) The Medical team who would be

performing the termination of the pregnancy shall

take utmost care while carrying out the termination

and more particularly in view of the additional

findings and observations made by the medical team.

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(c) In the event of child being born alive, the

Medical Practitioner conducting the procedure shall

ensure that all necessary facilities are available to

such child for saving his/her life.

(d) In the event of the child being born alive

and the petitioner and her husband are not willing to

take responsibility of such child, the State and its

agencies will have to assume full responsibility for

such child.

15. We have observed that though this Court by an order dated 31 st

December, 2021 in Writ Petition (L) No. 31015 of 2021 directed the

State of Maharashtra to forthwith proceed to constitute Medical

Boards, as the same will result in providing efficacious redressal to

women seeking medical termination of pregnancy with foetal

abnormalities, no steps are taken by the State Government till date in

compliance with the said order and section 3(2C) of the Medical

Termination of Pregnancy Act, 1971. As a result of not constituting the

Medical Board, a large number of women are required to face hardship. KVM

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We accordingly direct the State Government to constitute the Medical

Boards in compliance with the order dated 31 st December, 2021 and in

compliance with section 3(2C) of the said Act within eight weeks from

today without fail.

16. Writ petition is disposed of in the aforesaid terms. No order as

to costs. The parties to act on the authenticated copy of this order.

17. Ms.Thakur, learned A.G.P. for the State agrees to communicate

this order immediately to the hospital for complying with the order

passed by this Court.

      [M. M. SATHAYE, J.]                     [R. D. DHANUKA, J.]