Delhi High Court
Neha Devi vs Government Of Nct Of Delhi on 14 July, 2020
$~12.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 14th July, 2020
+ W.P.(C) 4104/2020
NEHA DEVI ..... Petitioner
Through: Ms. Sneha Mukherjee, Adv.
Versus
GOVERNMENT OF NCT OF DELHI ..... Respondent
Through: Ms.Hetu Arora Sethi, ASC for
Respondents No.1 & 2.
Mr. Anand Varma, Panel Counsel for AIIMS.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
: D.N.PATEL, Chief Justice (Oral)
1. The proceedings in the matter have been conducted through video
conferencing.
2. This writ petition has been preferred with the following prayers:-
"In the light of the facts and circumstances of this case, the
Petitioners pray before this Hon'ble Court as under:-
a. For a writ of mandamus or any other writ, order,
directing the Respondents to allow the Petitioner to
undergo Medical Termination of the Pregnancy.
b. For a writ of declaration or any other appropriate writ,
order or direction quashing Section 3(2)(b) of the
Medical Termination of Pregnancy Act, 1971 to the
limited extent that it stipulates a ceiling of 20 weeks for
an abortion to be done under Section 3, as ultra vires
Article 14 and 21 of the Constitution of India,
c. For a declaration to the effect that the expression "save
the life of the pregnant woman" in Section 5 of the MTP
Act includes "the protection of the mental and physical
health of the pregnant woman" and also incorporates
situations where serious abnormalities in the fetus are
detected after the 20th week of pregnancy.
d. for an order directing the Respondent No.1 to provide
necessary directions to the hospital for setting up an
expert panel of doctors to assess the pregnancy and offer
MTP to the petitioner and other women in need of the
procedure beyond the prescribed 20 weeks limit.
e. For any other order/direction that this Hon'ble Court may
deem fit."
3. At the outset, learned counsel for the petitioner submits that she does
not want to press prayer (b) of the writ petition.
4. We have heard the learned counsel for the parties.
5. This matter was listed before us on 10th July, 2020 when we passed
the following order:-
"Proceedings of the matter have been conducted through
video conferencing.
Having heard learned counsel for the petitioner and
looking to the facts and circumstances of the case, it appears
that this petitioner is in search of termination of pregnancy
which has now entered into 23rd week. Counsel for the
petitioner has taken this Court to paragraphs 8 and 9 to the
memo of this writ petition and has drawn our attention to the
report of the sonography conducted on the petitioner which
reflect that there are certain difficulties with the foetus in womb
of the petitioner.
We direct the petitioner to join All India Institute of
Medical Sciences as a party respondent No.3.
Issue notice through counsel.
Ms. Hetu Arora Sethi, learned Standing Counsel accepts
notice for respondents No.1 and 2. Mr. Anand Varma, learned
counsel accepts notice for respondent No.3 - All India Institute
of Medical Sciences (AIIMS), New Delhi.
Taking note of the facts of the case, we consider it
apposite to request the Director of All India Institute of Medical
Sciences (AIIMS), New Delhi - respondent No.3 to constitute a
board of at least three doctors to examine the petitioner. The
petitioner shall remain present before the Director, AIIMS or
such senior doctor or officer of AIIMS as he may specify, on
11th July, 2020 (Saturday) between 10:30 a.m. and 11:00 a.m.
We request the medical board appointed Director, AIIMS to
give a report about the condition of the foetus and as to whether
the termination of pregnancy would be safe in the case of the
petitioner or not. The report of the Medical Board/Committee
shall be filed in the Court by the evening of 13th July, 2020.
The matter is adjourned to 14.07.2020.
We also permit the personal service of this order on the
Director, AIIMS by the petitioner.
Copy of this order be communicated through electronic
mode to the petitioner and to the counsel for the AIIMS."
6. In compliance of the aforesaid order, the petitioner approached the
Medical Board constituted by the Director, All Indian Medical Sciences,
New Delhi at 10:30 a.m. on 11th July, 2020. The said Medical Board has
submitted its report dated 11th July, 2020, which reads as under:-
"ALL INDIA INSTITUTE OF MEDICAL SCIENCES
Ansari Nagar, New Delhi - 110029
No. F.2-17/Medical Board/2020-Estt.(H.)
Dated: 11.07.2020
Subject: Constitution of the medical board for medical
examination of petitioner Ms. Neha Devi to render an opinion
about the condition of the foetus and as to whether the
termination of pregnancy would be safe in the case of the
petitioner or not, including the likely physical & mental
consequences to the petitioner in both eventualities, in
compliance of order dated 10.07.2020 of Hon'ble The Chief
Justice and Hon'ble Mr. Justice Prateek Jalan, High Court of
Delhivide W.P.(C.) No. 4104/2020 titled Neha Devi Versus
Govt. of NCT of Delhi &Anr.
**************
In compliance with the letter No. F. 2-17/Medical
Board/2020-Esst,(H.) dated 11.07.2020, Medical board meeting
was held on 11.07.2020 at 12:00 Noon in M.S. Office Seminar
Room, Ground Floor, AIIMS, New Delhi. The Board consisted
of the following:
1. Dr. Aparna K. Sharma - Chairperson
Addl. Professor, Deptt. of Obs. & Gynae
2. Dr.Bichitra Nanda Patra - Member
Assoc. Professor, Deptt. of Psychiatry
3. Dr. Smita Manchanda - Member
Assoc. Professor, Deptt. of Radio-diagnosis
1. Dr. Jeeva Shankar - Member
Assoc. Professor, Deptt. of Paediatrics
2. Dr. Abhishek Yadav - Member
Assoc. Professor, Dept. of Forensic
Medicine & Toxicology
3. Dr. Deepali Garg - Member
Asstt. Professor, Deptt. of Obs. & Gynae
4. Dr. Reeja Raju - Member
Secy.Department of Hospital Administration
5. Dr. AmiteshKhare - Observer
Department of Hospital Administration
M/s. Neha Devi came to the M.S. Office, AIIMS on 11.07.2020
at 10:30 A.M. for the Medical Board as directed by the Hon'ble
High Court of Delhi for opinion on the above mentioned
subject. Medical board met in M.S. Office Seminar Room,
Ground Floor, AIIMS and Ms. Neha Devi was examined and
her medical records were evaluated by the panel of experts in
the committee.
OPINION:
The Medical board after reviewing the records is of the
following opinion:
The petitioner is at 23 weeks and 1 day of pregnancy by
LMP, which corresponds to Ultrasound report.
The board members reviewed the ultrasound reports
conducted in AIIMS on 11.07.2020. The ultrasound is
suggestive of large lumbar myelomeningocele with dilated
ventricles likely Arnold Chiari Malformations type II. POG
by ultrasound is 22 weeks 6 days. This type of malformation
likely to have will have significant morbidities in later life.
There is no contraindication from psychiatric point of
view at this point of time
There is no increased risk if the medical termination
of pregnancy is performed at this stage."
(emphasis supplied)
7. The learned counsel for the petitioner submitted that the petitioner had
undergone two more examination and has annexed copies of the reports.
The first report is dated 22nd June, 2020 of which is at Annexure P-2 of the
memo of writ petition and the details of the said report reads as under:-
"Fetal biometry, morphology and genetic sonogram performed.
Gravid uterus shows a single live fetus in variable presentation
at the time of study.
FETAL BIOMETRY
BPD : 47 mm 20 WEEKS 01 DAY
HC : 178 mm 20 WEEKS 02 DAY
AC : 147 mm 20 WEEKS 00 DAY
FL : 34 mm 20 WEEKS 05 DAY
EFWD : 346 gms =/- 12%
Internal os is closed. Cervical length is 32mm.
Placenta is posterior well above the os.
Placenta shows grade -1 changes.
Retroplacental region is clear.
Liquor amni is adequate in amount on this study.
Fetal cardiac activity is well visualized and normal. (FHR -
149bpm)
FETAL STRUCTURE
FL / AC = 0.23 mm (0.20-0.24)
HC / AC = 1.21mm (1.06-1.25)
FL / HC = 0.19MM (0.18-0.20)
Humeral length = 32mm= 20 wks 05 days
Ulnar length = 27mm=19 wks 03 days
Tibial length = 28mm= 19wks 05 days
There is flaring and defects of posterior element with a solid
cystic lesion of size approx..: 23x9mm in overlying lumbo
sacral region s/o Open Spina Bifida with Meningocele. Anterior
indentation of fetal skull giving lemon shape appearance with
dilated both lateral ventricles with Dangling Choroid Plexus s/o
Arnold chiari Malformation.
Posterior fossa appears small.
The pulmonary echogenicity was normal with no pulmonary
cyst(s) or mass grose diaphragmatic defect.
The fetal stomach, both kidneys, urinary bladder and other
abdominal viscera shows no gross abnormality.
Right kidney measures - 20 x 11mm, Left kidney measures -
19 x 10 mm."
8. The other report is dated 3rd July, 2020 (Annexure P-3 to the memo of
this writ petition) by Lady Hardinge Medical College and Smt.S.K.Hospital,
Connaught Place, New Delhi - 110011 and which reads as under:-
"Lady Hardinge Medical College and Smt. S.K. Hospital
Connaught Place, New Delhi-110001
OUT PATIENT RECORD
Name: MRS. NEHA DEVI Fees: ₹0
Department: Obstetrics and Gynecology Sex: Female
Dept. No.: 20204155/.....15574 W/o Sunil Tiwari
Date of Registration: 03.07.2020 Age: 74 Y
Ext. C
..............Type: General
.........No.
Address: ....................
LMP- 27/1/2020
G3 P1 4 A1 with 22 + 4 wks
with
Open spina bifida
IUF, voiable
BPD : 20 + wks.
Defect of heart ailment Adv.
Open spina bifida with meningocele - patient
communicated that
Of 23 x 9 mm Spina bifida
is associated with
In lumbo sacral region Mental + physical
in Abnormality 70% of
with B/L Lat. Ventricle 11 mm the case Mental &
Physical
Abnormality remains after
surgery of bay - planover,
Neuro surgery facility is NA
in KSCH.
Adv.
Covid testing
- F/u in ANC checkup (Monday to
Friday)
Sd//-
Reg. by Dr.Manisha (staff)
OF, cephalic
BPD= 22+5 ; FL = 21+3
Ventriculo Megaly (+)
01 - Post Liq
Spine -- Meningomyolocele (+)
Adv.
As pregnancy is > 20 wks.
Termination can be done only after court orders.
Patient explained about taking court permission
might take 7-10 days
Sd/-
Miss Sneha - 9999602308
Dr. Manisha -"
9. Ms. Sneha Mukherjee, learned counsel appearing for the petitioner,
categorically states that her client has been made fully aware of the situation,
including the condition of her foetus and the possible risk in case
termination of pregnancy is to be allowed at this stage, and that her client is
willing to undertake the risk of termination of her pregnancy, but would not
desire to allow the pregnancy to continue, given the condition of the foetus.
10. The issue in controversy is, legally, not res integra. In Tapasya
Umesh Pisal v. Union of India, (2018) 12 SCC 57, Tapasya Umesh Pisal,
the petitioner, who was 24 years of age approached the Supreme Court,
under Article 32 of the Constitution of India, seeking permission to undergo
medical termination of her pregnancy, which had progressed to 24 weeks, as
her foetus has been diagnosed with tricuspid and pulmonary atresia, a
cardiac anomaly. The Supreme Court constituted a Medical Board to
examine the situation. The Board reported that the treatment of the
abnormality in the foetus would require foetal surgery which carried the risk
of high mortality, and that even if the surgery were to be successful, such
children would remain physically incapacitated and had a limited life span.
The Supreme Court observed that, except for the time period i.e. the
duration for which the pregnancy had continued, the case would fall within
Section 3(2)(b) of the MTP Act. In the circumstances, the Supreme Court
held thus:
"8. In these circumstances, it is difficult for us to refuse the
permission to the petitioner to undergo medical termination of
pregnancy. It is certain that the foetus if allowed to born, would have
a limited life span with serious handicaps which cannot be avoided. It
appears that the baby will certainly not grow into an adult."
11. In Mrs. X v. Union of India, (2017) 3 SCC 458 the pregnancy of the
petitioner had continued upto 22 weeks, when the foetus had diagnosed as
suffering from bilateral renal agenesis and anhydramnios. The Medical
Board reported that there was risk of intrauterine fetal death/still birth and
no chance of long term post natal survival, and that there was no curative
treatment available for bilateral rengal agenesis. The Supreme Court
observed thus:
"8. We have already vide order dated 16-1-2017 [Meera
Santosh Pal v. Union of India, (2017) 3 SCC 462] upheld the
right of a mother to preserve her life in view of foreseeable
danger in case the pregnancy is allowed to run its full course.
This Court in that case relied upon Suchita
Srivastava v. Chandigarh Admn. [Suchita Srivastavav.
Chandigarh Admn., (2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570],
where a Bench of three Judges held: (SCC p. 15, para 22)
"22. ... a woman's right to make reproductive choices is also a
dimension of "personal liberty" as understood under Article 21
of the Constitution."
In these circumstances we find that the right of bodily integrity
calls for a permission to allow her to terminate her pregnancy.
The report of the Medical Board clearly warrants the inference
that the continuance of the pregnancy involves the risk to the
life of the petitioner and a possible grave injury to her physical
or mental health as required by Section 3(2)(i) of the Medical
Termination of Pregnancy Act, 1971. It may be noted that
Section 5 of the Act enables termination of pregnancy where an
opinion if formed by not less than two medical practitioners in a
case where opinion is for the termination of such pregnancy is
immediately necessary to save the life of the pregnant woman.
9. Though the current pregnancy of the petitioner is about 24
weeks and endangers the life and the death of the foetus outside
the womb is inevitable, we consider it appropriate to permit the
petitioner to undergo termination of her pregnancy under the
provisions of the Medical Termination of Pregnancy Act, 1971.
We order accordingly."
12. Looking to the judgments of the Supreme Court, cited hereinabove,
and in the facts and circumstances of the case including inter alia, the report
of the Medical Board constituted by the Director, AIIMS, we are of the view
that the prayer of the petitioner deserves to be allowed. Accordingly, the
petitioner is permitted to have her pregnancy terminated, without any further
delay.
13. We express our appreciation for the assistance rendered to the Court
by the Director, AIIMS, as well as the Medical Board constituted by him,
who approached the matter with the urgency it deserved.
14. The writ petition stands allowed in the above terms.
CHIEF JUSTICE
PRATEEK JALAN, J
JULY 14, 2020
'anb'
