2016 Supreme(Bom) 1874

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. Tahilramani and Mridula Bhatkar, JJ.
High Court on its own Motion - Appellants
Vs.
The State of Maharashtra - Respondent
Suo Motu Public Interest Litigation No. 1 of 2016
Decided On : 19-09-2016

Headnote:Medical Termination of Pregnancy Act, 1971 - Sections 3, 3(2)(b)(i) and 5-Mah. Prisons Manual, Rule 7-Termi- nation of pregnancy of prisoner.-Since a pregnant prisoner indicates that she wants to terminate her pregnancy, her pregnancy can be lawfully terminated.

       In case where there is no emergency, then that prisoner is not taken to the hospital on that day and may be taken to hospital after a day or two. In case of pregnant prisoner, if the pregnancy has to be terminated, normally it has to be done in 12 weeks as set out in Section 3(2)(a) or 20 weeks as set out in 3(2)(b) of the Act provided it falls under Section 3(2)(b)(i) or (ii).

       In cases of pregnancy, every day is important on account of growth of foetus. Once a woman prisoner is found to be pregnant and she indicates that she wants to terminate the pregnancy, she should be immediately referred to the hospital and it should be ensured that her pregnancy is terminated.

       The Jail Administration and Escort Division to ensure that as far as possible such lady prisoner reaches the hospital by 8.30 a.m. A female prisoner cannot have access to facility of medical termination of pregnancy if her case falls under Section 3 or 5 of the Act, therefore not providing her with the facility amounts to forcing a woman to continue with a pregnancy she does not want which by itself constitutes a grave injury to her mental health and as such would fall under Section 3(2)(b)(i) of the Act. Hence, such a pregnancy can be lawfully terminated.

       Medical Termination of Pregnancy Act, 1971 - Sections 3, 4 and 5-Constitution of India, Article 21-Termination of pregnancy of prisoner.-It is a precious right of a pregnant prisoner under Section 3 of Act to terminate her pregnancy.

       If a pregnant prisoner wants to terminate her pregnancy, then provision of Section 3(2)(b)(i) or (ii) are applicable. She being a prisoner should not be treated differently than any other pregnant women. Section 3 of Medical Termination of Pregnancy Act bestows a very precious right to a pregnant woman to say no to motherhood.

       It is the right of a woman to be a mother so also it is the right of a woman not be mother and her wish has to be respected. This right emerges from her human right to live with dignity as a human being in the society and protected as a fundamental right under Article 21 of the Constitution of India with reasonable restrictions as contemplated under the Act. Human rights are natural rights and thus a woman has a natural right in relation to her body which includes her willingness to be a mother.

       Medical Termination of Pregnancy Act, 1971 - Sections 3, 4 and 5-Medical Termination of Pregnancy Rules, 2003, Rule 2(e)-Maharashtra Prisons Rules, 1962, Ch. IV, Section II, R. 1- Maharashtra Prisons Manual, Ch. 41, R. 7-Termination of pregnancy of prisoner.-For purpose of medical termination of pregnancy of prisoner, procedure has to be followed by Jail Authorities.

       In case where there is no emergency, then that prisoner is not taken to the hospital on that day and may be taken to hospital after a day or two. In case of pregnant prisoner, if the pregnancy has to be terminated, normally it has to be done in 12 weeks as set out in Section 2(2)(a) or weeks as set out in 3(2)(b) of the Act provided it falls under Section 3(2)(b)(i) or (ii). In cases of pregnancy, every day is important on account of growth of foetus. Once a woman prisoner is found to be pregnant and she indicates that she wants to terminate the pregnancy, she should be immediately referred to the hospital and it should be ensured that her pregnancy is terminated. The Jail Administration and Escort Division to ensure that as far as possible such lady prisoner reaches the hospital by 8.30 a.m. A female prisoner cannot have access to facility of medical termination of pregnancy if her case falls under Section 3 or 5 of the Act, therefore not providing her with the facility amounts to forcing a woman to continue with a pregnancy she does not want which by itself constitutes a grave injury to her mental health and as such would fall under Section 3(2)(b)(i) of the Act. Hence, such a pregnancy can be lawfully terminated.

       In such case, there is risk of the case papers getting mixed up or lost. It would be proper that in addition an `OPD Register` is maintained in the jail in which brief details of the patient are given. The name of the prisoner, medical problem and follow up should be stated briefly in the register. This OPD Register be produced for inspection to the Sessions Judge/Magistrate who is deputed to visit the jail.

       Medical Termination of Pregnancy Act, 1971 - Sections 3, 4 and 5-Medical Termination of Pregnancy Rules, 2003, Rule 2(e)-Maharashtra Prisons Manual, Ch. 41, R. 7-Termination of pregnancy of prisoner.-Case of a pregnant prisoner, who wants to terminate her pregnancy, not necessarily required to be referred to committee.

       It appears that earlier, there was some misconception that for obtaining permission for medical termination of pregnancy of a prisoner, the proposal has to be sent to a Committee. Referring the case to a Committee would entail delay in the termination of pregnancy. This delay in terminating the pregnancy could have some serious or unnecessary complications which may affect the pregnant lady adversely. However, on going through the Medical Termination of Pregnancy Act and the Rules, as well as the Prison Manual, it is not necessary to refer the case of a pregnant prisoner who wants to terminate her pregnancy to a Committee. The Committee which is referred to under Section 2(e) of the Medication Termination of Pregnancy Rules, 2003 and to which there is a reference in Section 4 of the Act is a Committee whose job is only to approve the place where a pregnancy can be terminated. A prisoner has to simply indicate that she wants to terminate her pregnancy as its continuance would cause grave injury to her physical and mental health. She would then be referred to the Government hospital and if her case was covered by Sections 3 or 5 of the Act, the pregnancy would be terminated.

       Section 3(2) states that where the length of pregnancy does not exceed twelve weeks, it can be terminated by a registered medical practitioner if he is of the opinion that the case falls under Section 3(2)(a), (b) (i) or (ii). In case of termination of pregnancy exceeding twelve weeks and not exceeding 20 weeks, then same opinion but of not less than two registered medical practitioners is to be sought. The registered medical practitioners should opine that the continuance of pregnancy either would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health. Section 3(2)(b)(ii) pertains to the risk involved to the health of the child. The present case of medical termination of pregnancy is to be considered under Section 3(2)(b)(i) which allows the termination of pregnancy if there is risk to the life of the pregnant woman or of grave injury to her physical or mental health.