IMPORTANT POINTS
Medical termination of pregnancy is possible only under the circumstances contained in Section 3 of the MTP Act, 1971-It cannot be said that everyone, who is not interested to continue with the pregnancy, is entitled as of right, to seek medical termination of pregnancy on any grounds other than the one mentioned under Section 3 of the Act. Furthermore, it is clear and evident from the provisions of Prohibition of Sex Selection Act, 1994, that any medical termination of pregnancy, which is sought on the basis of sex, selection and determination, is punishable as per the provisions of the said Act.

JUDGMENT :

S. Manikumar, J.

Instant public interest writ petition is filed for the following relief’s:

(i) Writ, order or direction in the nature of Mandamus or such other appropriate Writ, order or direction, declaring that Section 3(2)(ii) and Explanations I and II thereof, of the Medical Termination of Pregnancy Act, 1971 is unconstitutional for violating Article 21 of the Constitution of India.

(ii) Writ, order or direction in the nature of Mandamus or such other appropriate Writ, order or direction, declaring that “grave injury” in Section 3(2)(1) of the Medical Termination of Pregnancy Act, 1971 does not mean or include any anguish occasioned due to unwanted pregnancy caused by failure of any device or method used by any man or woman for the purpose of limiting number of children.

(iii) Writ, order or direction in the nature of Mandamus or such other appropriate Writ, order or direction declaring that medical termination of pregnancy other than in the circumstances wherein the life of the pregnant women is in grave and imminent danger is unconstitutional for violating Article 21 of the Constitution of India.

2. Shorts facts leading to the filing of the writ petition are as under: Petitioner No.1 is a charitable society registered under the provisions of Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, engaged in espousing social causes, particularly those relating to violation of human rights and foeticide under the cover of Medical Termination of Pregnancy. 2nd petitioner apart from being a member of the 1st petitioner society, is also engaged in the promotion of pro-life activities and has worked extensively in the field, by providing and directing a documentary film on the value of life and agony of the unborn child in a abortion. 3rd petitioner is a member of the 1st petitioner society and a medical professional working against female foeticide. The petitioners are challenging the constitutionality of Section 3(2)(ii) and the explanation thereof of Medical Termination of Pregnancy Act, 1971.

According to the petitioners, when a spermatozoon enters the ovum, fertilization takes place, which marks the beginning of a biological life of an individual. Formation of a child has to be considered from this stage where after it obtains all rights of a human being and is entitled to protection afforded to every citizen of India, including right to life and property. The only exception is when it becomes a risk or threat to the life of the mother. Thus, according to the petitioners, permitting abortion for the reason that the yet to be born is handicapped or that the pregnancy caused as a result of failure of device or method used by any married women or her husband for the purpose of limiting the number of children can be presumed to constitute grave injury to the mental health of the women and hence, she can be permitted to undergo abortion, which violates the right to life. Hence, they seek to declare that the said section is bad in law and violates right to life guaranteed under Article 21 of the Constitution of India.

3. Petitioners have contended that abortion is a deliberate ending of life. Every fertilized embryo has got a right of life and it should be protected as that of its mother. However, loose ends of the MTP Act causes termination of large number of “unwanted” pregnancies especially, the tendency for female foeticide in the mother's womb. According to the petitioners, in India, a large number of abortions are carried out for getting rid of girl children. Despite the fact that unborn child, especially the girl child, is given a special protection through Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, it does not serve any purpose. Due to the enabling provisions contained in the Act, female foetus are identified and killed in large numbers, which is obvious from the decline in sex ratio in the latest census report.

4. The grounds raised ar