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2018 Supreme(P&H) 369
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAKESH KUMAR JAIN, J.
Aarti Rani – Petitioner
Versus
State of Punjab and others – Respondents
CWP No.4160 of 2018
Decided On : 21-03-2018
For the Petitioner:Mr. Anant Kataria, Advocate
For the Respondent:Mr. H.S. Sitta, AAG, Punjab, Ms. Nirmaljeet Kaur, Advocate
The court's decision was guided by the provisions of the Medical Termination of Pregnancy Act, medical opinions, and the best interests of the petitioner, who was a HIV positive patient.
Headnote:
Medical Termination of Pregnancy Act - HIV Positive Patient - Section 3(2)(b)(i), Section 3(2)(b)(ii)
Fact of the Case:
The petitioner, a HIV positive patient, sought termination of her pregnancy as the child in her womb was likely to suffer from HIV. The medical board opined that termination was feasible, but also highlighted the risk of HIV transmission to the child.
Finding of the Court:
The court found that the petitioner's health, social circumstances, and the potential risk of HIV transmission to the child warranted termination of the pregnancy.
Issues: The main issue was whether the petitioner's HIV positive status and the potential risk of HIV transmission to the child justified the termination of her pregnancy.
Ratio Decidendi: The court relied on the provisions of Section 3(2)(b)(i) and Section 3(2)(b)(ii) of the Medical Termination of Pregnancy Act, along with medical opinions and the petitioner's social circumstances, to allow the termination of the pregnancy.
Final Decision: The writ petition was allowed, and the court directed the respondents to terminate the petitioner's pregnancy forthwith, considering her health and mental condition.
RAKESH KUMAR JAIN, J.
1. The petitioner was married to respondent No.3 on 2.9.2017 and conceived on 9.11.2017. Thereafter, the petitioner had some routine tests from Mata Kaushalaya Hospital, Patiala and Government Rajindra Medical College and Hospital, Patiala and found that she is a HIV positive patient. She was thus registered in HIV care vide registration No.P-9699 and ART registration No.PB-PTE-7946 on 5.1.2018 and was put on medicines by the doctors. It is alleged that respondent No.3, instead of looking after her, turned her out from the matrimonial home on 24.1.2018 and since then the petitioner is living with her old parents, who themselves are dependent upon their son. Not only this, respondent No.3 has also filed a divorce petition against the petitioner on 5.2.2018 in the Court at Patiala. The petitioner received the summons of the divorce petition for 26.3.2018. The petitioner come to know that the divorce petition, filed by her husband, is on the ground that she is suffering from HIV positive. The petitioner also came to know that the child in her womb may also suffer from HIV positive which would result into a traumatic life for the child after his/her birth and her own health shall be at stake and that the stigma of being a patient of HIV would cause an adverse effect on her physical and mental health. The petitioner then decided to get the pregnancy terminated but since it was more than 12 weeks old, therefore, she could not have got it done otherwise than adverting to provision of the Medical Termination of Pregnancy Act, 1971 [for short ‘the Act’] and has thus prayed that a direction may be issued to respondents No.1 & 2 to constitute a board of experts for the purpose of termination of her pregnancy as the foetus is already 14 weeks old.
2. After notice was issued, this Court passed an order on 12.3.2018, asking respondent No.2 to constitute a Board of Doctors, to opine as to whether it would be feasible to terminate the pregnancy of the petitioner at this stage. The said order is reproduced as under: -
“The petitioner has produced a report of the Board of Doctors addressed to the Principal, Government Medical College, Patiala, dated 3.3.2018, wherein they have opined that the petitioner has foetus of 14 weeks and 4 days as on 3.3.2018 and the termination of her pregnancy is feasible. The said report is taken on record.
There is no dispute that the petitioner is HIV Positive patient. Section 3 of the Medical Termination of Pregnancy Act, 1971 provides that a pregnancy may be terminated by the registered medical practitioner, where the pregnancy is of 12 weeks but not exceeding 20 weeks, and they are of the opinion, formed in good faith, that there is a substantial risk if the child is born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. So far, there is no evidence on record of the opinion formed by the Medical Board that the child in womb, if born, would also suffer from the disease of HIV Positive.
In order to satisfy the provisions of Section 3(2)(b)(ii) of the aforesaid Act, it would be just and expedient if an opinion be also obtained from the Medical Board that in case child is born, he would also suffer from physical or mental abnormality because the mother is HIV Positive or the child in womb or after birth would also suffer HIV Positive. The Principal, Government Collage, Patiala, is directed to constitute the Board immediately on receipt of the copy of the order of this Court, so as to form an opinion in the light of the provisions of Section 3(2)(b)(ii) of the Act.
Adjourned to 15.3.2018.
Copy of this order be given dasti to learned counsel for the parties and the learned State counsel is directed to ensure the compliance of this order on or before the next date of hearing.
To be shown in the urgent list.”
3. Apropos, respondents No.1 & 2 submitted their report on 3.3.2018 in which the following observations have been made: -
“We the members of the boar
