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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. BORDE, R.G. KETKAR, JJ.
Shaikh Ayesha Khatoon - Petitioner
Versus
Union of India, through the Secretary, Ministry of Law and Justice and Ors. - Respondents
Writ Petition (ST) NO. 36727 OF 2017
Decided On : 09-01-2018
Medical Termination of Pregnancy Act, 1971 - Section 3 of the Act. Subsection (2) of Section 3 - Issuance of notice - Termination of pregnancy – Admission - Pregnancy and is praying for issuance of a direction - It is reported that above congenital malformations increased likelihood of an underlying genetic abnormality which could be ruled out with invasive testing and micro array - It is further reported that considering number and severity of malformations; chances of independent intact neonatal survival appear less - In view of report of Sonologist petitioner has approached this Court seeking relief as sought above - Petitioner has also requested to refer her for further examination to Medical Committee in order to confirm diagnosis of Sonologist and to assist Court in arriving at a decision as regards request made by petitioner in instant Petition – Held, Generally speaking Statutes are classified in fourfold manner - Firstly statutes are remedial secondly they are declaratory thirdly they are procedural and lastly they are penal or disentitling - One has to find out character of statute as to whether it is penal or not so as to apply principles of strict construction - In instant matter it cannot be said that provisions of enactment which are relevant for consideration are penal in character - In a way provision is remedial and procedural- provision therefore cannot be applied standards as regards interpretation of a Statute which is penal in character - On analysis of judgments and narrations as recorded above one must while interpreting provisions of law bear in mind that provision as to be interpreted by reading all of its parts together and it is not permissible to omit any part thereof- golden rule of interpretation is that provisions of law have to be read as it is without adding or subtracting anything therefrom - In an appropriate case Court can only iron out creases but while doing so it must not alter fabric of which an Act is woven - Writ Petition is allowed
R.M. BORDE, J.
Heard. Rule. With the consent of the parties, Rule made returnable forthwith and the Petition is taken up for final disposal at the admission stage.
2. The petitioner is a lady undergoing 27th week of pregnancy and is praying for issuance of a direction to the respondents to allow her to undergo medical termination of pregnancy at medical facility of her choice and at her expenses. It is the contention of the petitioner that on Sonographical examination of the fetus it was revealed that it (fetus) suffers from several foetal anomalies including a congenital malformation. The report of Sonography dated 18.12.2017 is annexed at Exhibit 'A' to the petition. The Sonologist on examination reported several foetal anomalies as recorded below:
(a) Inencephaly
(b) Cerebellar hypoplasia
(c) Hydranencephaly
(d) Laryngeal Atresia
(e) Atrium – Venticular septal defect
(f) Double outlet single ventricle
(g) Stomach not visible
3. It is reported that above congenital malformations increased the likelihood of an underlying genetic abnormality which could be ruled out with invasive testing and micro array. It is further reported that considering the number and severity of the malformations; chances of independent intact neonatal survival appear less. In view of the report of the Sonologist, the petitioner has approached this Court seeking relief, as sought above. The petitioner has also requested to refer her for further examination to Medical Committee in order to confirm the diagnosis of the Sonologist and to assist the Court in arriving at a decision as regards the request made by the petitioner in the instant Petition.
4. Considering this, the learned Vacation Bench while directing issuance of notice to the respondents on 2.1.2018 directed respondent No.2 State of Maharashtra to get the petitioner examined by the Medical Board of Sir J.J. Groups of Hospitals, Mumbai consisting of Dean of the hospital, Head of Department (Gynecology), Professor and Head of Department of Pediatric/Cardiac Surgeon, Professor and Head of Department of Radiology and Psychiatry and any other expert in the field.
5. The petitioner appeared before the Committee and she was medically and radio-logically examined on 3.1.2018. The USG impressions recorded in the report are thus :
| USG Impressions | Single live intrauterine gestation of mean gestational age 26 weeks and 5 days with gross polyhydramnios and multiple severe – cranial, complex cardiac and bowel anomalies as described above. Suggest cardiology opinion for the cardiac anomaly and genetic work up for underlying chromosomal anomalies as multiple fetal abnormalities are seen. |
6. The observations of Associate Professor of Department of Pediatrics, Professor & Head of Department of Pediatric Surgery, Associate Professor of Department of Neurosurgery as well as the observations of Professor & Head of Department of Radiology and Professor & Head of Department of Psychiatry are as narrated below:
Observations of Dr. Subhash Walinjkar (Associate Professor of Department of Pediatrics) :
| USG report suggest single live intrauterine gestation of mean gestational age 26 weeks and 5 days with gross polyhydramnios and multiple severe – cranial, complex cardiac and bowel anomalies. In view of this grossly abnormal USG report is a high chance of fetal Morbidity and Mortality. |
Observations of Dr. D.R. Kulkarni (Professor and Head of Department of Pediatric Surgery) :
| USG report suggest single live intrauterine gestation of mean gestational age 26 weeks and 5 days with gross polyhydramnios and multiple severe – cranial, complex cardiac and bowel anomalies. In view of this grossly abnormal USG report is a high chance of fetal Morbidity and Mortality. |
Observations of Dr. Sachin Giri (Associate Professor of Department of Neurosurgery) :
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