Delhi High Court
Kalpana Singh vs Govt. Of Nct Of Delhi & Ors. on 11 January, 2021
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11th January, 2021
+ W.P.(C) 115/2021
KALPANA SINGH .....Petitioner
Through: Mr. Siddharth Seem, Advocate
versus
GOVERNMENT OF NCT OF DELHI & ORS. .....Respondents
Through: Mr. V.S.R. Krishna & Mr. V.
Shashank Kumar, Advocates for R-3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGMENT
: D. N. Patel, Chief Justice (Oral)
The proceedings in the matter have been conducted through video
conferencing.
1. This writ petition has been preferred with the following prayers:
" 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, 971 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.
Signature Not Verified
Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
10:52:53
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 foetus are detected after the 20th
week of pregnancy.
d. For an order directing the Respondent No. 3 for setting up
an expert panel of doctors to assess the pregnancy and offer
MTP to the petitioner 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."
2. As per the case set out in the petition, petitioner had got
Ultrasonography conducted on 31st December, 2020 at gestational stage of
27 weeks 5 days which reveals that the foetus suffered from Anencephaly +.
Based on the said report, which indicated a fetal abnormality the petitioner
consulted her Gynaecologist at Lady Hardinge Medical College and
requested for medical termination of pregnancy. However, since the
permissible limit of 20 weeks under the Medical Termination of Pregnancy
Act had already crossed, the petitioner's request was declined. Report dated
31st December, 2020 is annexed at Annexure P-3 to the memo of this writ
petition and is as follows:-
"UHID: 20200157120
Lady Hardinge Medical College
And Smt. S.K. Hospital
Connaught Place, New Delhi-110001
Signature Not Verified
Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
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CONSULTING ROOM NO: Casualty EHR ID:
20000216047507830
CLINIC: Gynae Casualty TOKEN NO: 101
CASUALTY
Department: Main Casualty Fees: Rs. 0
ER No: 2020/078/0056128 GC/551273 Unit:
CASUALTY
Name: MRS. KALPANA 31/12/2020 /11PM W/O:
PRAKASH
Date of Registration: 31.12.2020 10:49:37 PM Sex: Female Age:
25 Y
Billing Type: GENERAL Religion: UNKNOWN
Mobile No.: *******294 Occupation: UNKNOWN
Address: F-7 SHANKAR MARKET CENTRAL DELHI, Patient
Type: NON MLC
DELHI, INDIA Prepared By: Mr. Satveer Singh
Brought By: Self Email:
_______________________________________________________
Presenting Complaints: Investigation:
Temp - 87.49 Primi/23 + 6 Wks. POG/Pain in abdomen/since
morning
No C/L c Gastuco
(illegible) No C/o BPV / LPV
_______________________________________________________
Examination : Primi/SPC
P:
BP: M/N - Prev. cycle regulation 3-4d.any flow 28-3LMP-16 Jul
R:
P / u : NAD
P / u : NAD
Doctor's Name Signature/Date
Patient Consent: I, the holder of the above mentioned mobile
number, herewith give my consent to share my electronic health
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Digitally Signed By:PANKAJ
KUMAR
Location:
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information with 'My Health Record', an initiative of Govt. of India.
I understand that I can revoke / withhold this consent through site
(https://myhealthrecord.nhp.gov.in)
/c ucp
(illegible)
PO
(illegible)
BP-103/86
PR - 84 min.
USG-31/12/2020
NMC: SL/UF
(illegible)
FL - 27 + 5 wks
Anencephaly +
Advice:
- USG for PWB + r/o ectopic stat
- T. Rantop 40mg stat given
- Pt. Obsecured in GC x 3 wks.
Comfortable
No C/O BPV/LPV
Pt. counselled i/v/o poor prognosis of fetus & prolong
POG
Pt. & husband both counselled and advice
Advice:
F/U in GOPD c/m
F/U in GOPD thus 2pm
Fetal medicine OPD
T. PA 5mg. 10 D
((illegible)"
3. The matter was listed before us on 7th January, 2021 when we passed
the following order:-
" 1. Learned counsel for the petitioner seeks permission to
amend the name of the petitioner in the memo of parties as well
as in the writ petition.
2. The permission as prayed for is granted. The amended memo
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Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
10:52:53
of parties and the amended writ petition be placed on record
during the course of the day.
3. Learned counsel for the petitioner submits that the petitioner
is 28 weeks pregnant and medical examination report of the
petitioner is annexed as Annexure P-3 to the memo of the writ
petition. The said report reads as follows:-
" Report
SLIUF, Cephohc
CA+ Absence of cranial vault
PL - Post, Nil & cerebral parenchyma
FL = 27 Wsd. S/o Anencephaly
Dr. Pavan SR
Signature 94979
Name & Designation of
Person on doing the USG"
4. It is submitted by the Counsel for the petitioner that the
health of foetus can also be one of the grounds for termination
of the pregnancy even beyond twenty weeks. Counsel for the
petitioner has relied upon several decisions which are referred
to in the memo of the petition.
5. Issue notice to the respondents. Mr.Jawahar Raza, the
learned ASC accepts notice for the respondents No.1 and
2/Govt. of NCT of Delhi.
6. Notice be now issued to respondent No.3/AIIMS.
7. In view of the aforesaid facts and looking to the aforesaid
medical report, we consider it apposite to request the Director
of All India Institute of Medical Sciences (AIIMS), New Delhi to
constitute a Board of three doctors to examine the petitioner.
The petitioner shall remain present before the Director, AIIMS
on 8th January, 2021 between 11 a.m. to 1 p.m.
Signature Not Verified
Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
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8. The report of the Medical Board/Committee shall be
presented before this Court on or before 11th January, 2021.
9. List this matter on 11th January, 2021.
10. The Registry is directed to send a copy of this order to
Director, AIIMS through fax immediately.
11. We also permit the personal service of this order on the
Director, AIIMS by the petitioner.
12. Copy of this order be given dasti to learned Counsel for the
petitioner under signature of the Court Master."
4. In compliance of the aforesaid order, petitioner appeared before the
Medical Board, constituted by the Director, All India Institute of Medical
Sciences, New Delhi, on 08th January, 2021. The said Medical Board has
submitted its report dated 08th January, 2021, which reads as under:-
"ALL INDIA INSTITUTE OF MEDICAL SCIENCES
Ansari Nagar, New Delhi - 110029
NO.F.2-2/Medical Board/2021-Estt.(H.) Dated: 08.01.2021
Subject:Report of the medical board constituted at AIIMS
forMedical examination of petitioner Ms. Kalpana to render an
opinion regarding the medical condition of the foetus and also
whether the pregnancy can be terminated at this stage in compliance
of order dated 07.01.2021 of Hon'ble The Chief Justice and Hon'ble
Ms. Justice Jyoti Singh, High Court of Delhi vide W.P.(C.) No.
115/2021 titled Kalpana Versus Govt. of NCT of Delhi & Ors.
****************
With reference to the Hon'ble court order dated 07.01.2021 of
Hon'ble The Chief Justice and Hon'ble Ms. Justice Jyoti Singh, High
Court of Delhi vide W.P. (C.) No. 115/2021 titled Kalpana Versus
Govt. of NCT of Delhi & Ors., regarding subject noted above, a
Signature Not Verified
Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
10:52:53
meeting of the medical board was held on 08.01.2021 at 12:00 Noon
in VIP Room No. 13, M.S. Office Wing, AIIMS, New Delhi alongwith
following board members:
1. Dr. Vatsla Dadhwal - Chairperson
Professor, Deptt. Of Obs. & Gynae
2. Dr. Surabhi Vyas - Member
Addl. Professor, Deptt. of Radio-diagnosis
3. Dr. Aparna K. Sharma - Member
Addl. Professor, Deptt. of Obs. & Gynae
4. Dr. Abhishek Yadav - Member
Assoc. Professor, Deptt. of Forensic Medicine
5. Dr. Anu Thukral - Member
Assoc. Professor, Deptt. of Paediatrics
6. Dr. Arif T.P. - Member Secy.
Department of Hospital Administration
Mrs. Kalpana was examined on 08.01.2021 at 12:00 Noon in VIP
Room No. 13, M.S. Office Wing, AIIMS, New Delhi and her medical
records were evaluated by the panel of experts in the board.
OPINION: The Medical board after reviewing the records is of the
following opinion:
• The petitioner Ms. Kalpana is a 25 years old lady. This is her first
pregnancy and she is currently at 25 weeks of gestation by date
which corresponds with the Ultrasound findings.
• Ultrasound shows anencephaly which is incompatible with life.
• Mother does not have any medical co-morbidities.
• In view of above, Medical Termination of Pregnancy (MTP) can be
offered.
(Dr. Vatsla Dadhwal) (Dr. Surabhi Vyas) (Dr. Aparna K. Sharma)
Chairperson Member Member
(Dr. Abhishek Yadav) (Dr. Anu Sachdeva) (Dr. Arif T.P.)
Member Member Member Secy."
5. We have heard learned counsels for the parties.
Signature Not Verified
Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
10:52:53
6. The petitioner is 25 years of age. She is in the 25th week of her
pregnancy, as per Medical Report of AIIMS dated 08.01.2021. The foetus
has been diagnosed with Anencephaly, which is incompatible with life.
7. In the circumstances the petitioner seeks permission to abort the
foetus but according to her is prevented Statutorily, from doing so, owing to
the combined effect of the provisions of Sections 3(2)(b) and 5(1) of the
Medical Termination of Pregnancy Act, 1971 (hereinafter referred as 'the
MTP Act'), the vires of which are challenged in the present petition.
Sections 3(2)(b) and 5(1) of the MTP Act, read thus:
"3. When pregnancies may be terminated by registered
medical practitioners.--
(2) Subject to the provisions of sub-section (4), a pregnancy
may be terminated by a registered medical practitioner,--
(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 from such physical or mental
abnormalities as to be seriously handicapped.
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
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Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
10:52:53
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."
8. Petitioner submits that there is an absolute proscription in Section
3(2)(b) of the MTP Act (supra), from termination of pregnancy, in cases
where gestation has crossed 20 weeks. Where the pregnancy is of less than
12 weeks, it may be terminated by a registered medical practitioner, if the
medical practitioner is of the opinion that the continuance of the pregnancy
would involve risk of the life of mother, or grave injury to her physical or
mental health, or result in the child suffering from physical or mental
abnormalities, causing a serious handicap. A similar despantion is available
where the pregnancy has crossed 12 weeks, but has not exceeded 20 weeks,
the only difference being that the opinion in such a case has to be of two
registered medical practitioners.
9. The controversy involved in the present petition is in a narrow
compass and on the legal front no longer res integra . In Tapasya Umesh
Pisal v. Union of India & Ors, (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
the foetus had been diagnosed with tricuspid and pulmonary atresia, a
cardiac abnormality. The Supreme Court directed constitution of a Medical
Board to examine the medical condition of the petitioner. 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 usually remain physically
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Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
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incapacitated and have a limited life span. 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 as follows:
" 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." (emphasis supplied)
10. In the case of Mrs. X and Ors. v. Union of India and Ors., (2017) 3
SCC 458 the pregnancy of the petitioner had continued upto 22 weeks, when
the foetus was diagnosed as suffering from bilateral renal agenesis and
anhydramnios. The Medical Board reported that there was risk of
intrauterine fetal death/still birth, with no chance of long term post natal
survival, and that there was no curative treatment available for bilateral renal
agenesis. The Supreme Court observed as under:
" 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
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Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
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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."
11. A similar issue arose in Sarmishtha Chakrabortty v. Union of India,
(2018) 13 SCC 339, wherein pregnancy had continued for 25 weeks and the
report of the Medical Board constituted to examine the case confirmed that
if the pregnancy were allowed to be continued, the mother was under threat
of severe injury and the child, even though born alive, would require
complex cardiac corrective surgery, with its inherent risks to life. Following
its decisions cited supra , the Supreme Court allowed the prayer of the
petitioner, before it, for medical termination of her pregnancy.
12. We thus find that the issue is covered by the decisions cited
hereinabove and permission can be granted to the petitioner for medical
termination of her pregnancy. We are also of the opinion, that in holding as
we do, we are not infracting Section 3 or Section 5 of the MTP Act (supra).
Section 3(2)(b) permits termination of pregnancy, inter alia, where there is
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Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
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substantial risk of serious physical or mental abnormalities, were the child to
be allowed to be born. Seen in isolation, it places a gap of 20 weeks
gestation for this to be permissible. At the same time, Section 5 relaxes the
rigours of Section 3(2) in a case where the termination of the pregnancy is
immediately necessary to save the life of the pregnant woman. We are also
of the opinion that these provisions have to be construed as part of one
cumulative dispensation and not isolated from each other. Seen thus, we are
convinced that, even in a case where the condition of the foetus is, as in the
present case, incompatible with life, the rigour of Section 3(2) deserves to be
relaxed, and the right to terminate the pregnancy cannot be denied merely
because gestation has continued beyond 20 weeks.
13. Law, needless to say, cannot be construed in a manner incompatible
with life.
14. Since the judgments cited above are based on the earlier decisions of
the Supreme Court, we have not referred to them separately to avoid
prolixity.
15. Having heard the counsel for the petitioner and looking to the urgency
of the matter as well as the health of the foetus in the womb of the petitioner
and the advance stage of pregnancy of the petitioner, we had passed an order
on 07.01.2021 and requested respondent No. 3 to examine the petitioner.
16. Pursuant thereto a Medical Board was constituted and report has been
rendered by Respondent No. 3/AIIMS, Delhi. Petitioner has been examined
by 6 eminent doctors who have opined that medical termination of
pregnancy can be offered. The report has been quoted in extenso in the
earlier part of the order.
Signature Not Verified
Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
10:52:53
17. Looking to the judgments of the Hon'ble 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.
18. 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.
19. With these directions, this writ petition is allowed and disposed of.
Copy of the order be given dasti under the signatures of the Court
Master.
CHIEF JUSTICE
JYOTI SINGH, J
JANUARY 11, 2021
kks
Signature Not Verified
Digitally Signed By:PANKAJ
KUMAR
Location:
Signing Date:13.01.2021
10:52:53
