2019 Supreme(Bom) 463

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, M.S. SONAK, JJ.
XYZ - Appellant
Vs.
Union Of India And Ors - Respondent
Writ Petition No. 10835 & 9748 of 2018; Writ Petition (L) No. 3172 of 2018
Decided on : 03-04-2019

Headnote:

Indian Penal Code,1860 – Sections 315,314,312,317,318,316 - Medical Termination of Pregnancy Act, 1971 - Sections 3,3(2)(b),2(d),5,5(3),5(4),4(d) - Term,inate Pregnancies - Petitioners had basically applied for appropriate orders to permit them to medically terminate pregnancies, even though the length of their respective pregnancies had exceeded 20 weeks. In two of the petitions, i.e., Writ Petition No. 10835 of 2018 and Writ Petition No. 9748 of 2018, declaration was sought to declare section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (MTP Act) to the limited extent that it stipulates a ceiling of 20 weeks for an abortion to be done under section 3 of the MTP Act is ultra vires Article 14 and 21 of the Constitution of India. However, this relief was not ultimately pressed, because the petitioners in the said petitions had also applied for a declaration that their case was fit for exercise of jurisdiction under section 5 of the MTP Act, which, under certain circumstances, permits the medical termination of pregnancy, regardless of the ceiling of 20 weeks as prescribed in section 3 of the MTP Act - Since, the consideration of reliefs sought for by the petitioners could not brook any delay, by various orders, we directed the constitution of Medical Boards comprising experts in various fields such as Gynecology, Medicine, Radiodiagnosis, Pediatric, Psychiatry etc. on emergent basis, in order to examine the petitioners and submit reports to this Court. In all these petitions, relying upon the reports and upon decisions of the Supreme Court in similar cases, we permitted the Petitioners to undertake medical termination of their pregnancies even though the length of the pregnancies had exceeded twenty weeks – Held, Supreme Court permitted the termination of pregnancy which had advanced in the 26th or 27th week, though, there was no danger to the petitioner’s life. The termination was permitted on the ground that the condition of fetus was not compatible with life, which is the contingency referred to in clause (ii) of section 3 (2)(b) of the MTP Act. The termination was also permitted because the continuance of pregnancy posed ‘severe mental injury’ to the petitioner, which is a contingency referred to in clause (i) of section 3 (2)(b) of the MTP Act. In effect therefore, the Supreme Court, read into the provisions of section 5 of the MTP Act, the contingencies referred to in clauses (i) and (ii) of section 3 (2)(b) of the MTP Act - We direct the State to constitute and establish, as expeditiously as possible, and in any case within a period of three months from today, Medical Boards as indicated in this judgment and order, in each of the districts, to examine pregnant women and to furnish reports in cases where permission to medically terminate pregnancy whose length exceeds twenty weeks, is sought for by institution of writ petitions in this Court. The Secretary (Health), Government of Maharashtra, to file affidavit of compliance on 1st July 2019, in this Court - We direct the State and/or the District Level Committees to ensure that there are sufficient approved places in terms of section 4 (b) of the MTP Act in each of the districts of State of Maharashtra, where, pregnancies may be terminated consistent with the provisions of the MTP Act. We also direct the Chief Medical Officers of each of districts to undertake periodic inspection of such approved places as contemplated by Rule 6 of the MTP Rules, 2003 with a view to verify whether termination of pregnancies is being done therein under safe and hygienic condition and to document and maintain such inspection reports. The Secretary (Health), Government of Maharashtra, to file a status report in this regard on 1st July 2019 in this Court - We direct the State to consider formulating a suitable policy to deal with cases of medical termination of pregnancies, with special emphasis upon rural areas, so that, pregnant women have access to safe and hygienic facilities and there is avoidable wastage of mother’s health, strength and sometimes, life. The Secretary (Health), Government of Maharashtra, to file a status report in this regard on 1st July 2019 in this Court – Petition Disposed of