Case BriefsHigh Courts

Madhya Pradesh High Court: A writ petition was contemplated by Vivek Rusia, J. for allowing medical termination of pregnancy of the said petitioner-wife. The petitioners requested the Court for termination of pregnancy as the report of the Radiologist showed that the right kidney of fetus was not visible and there were other complications. On the basis of the aforesaid report, the treating Doctor gave an opinion that after birth, the child may not survive even for 2-3 days.

The petitioner contended that the age of fetus was more than 20 weeks therefore, under the provisions of Medical Termination of Pregnancy Act, 1971 the doctor had refused to terminate her pregnancy. The learned counsel for the petitioners had relied upon the judgment in X v. Union of India, 2016 (14) SCC 382, where the Supreme held that Section 5 of the Act laid down the exception to Section 3 if two registered Medical Practitioner gave the opinion of in good faith in respect of the termination of pregnancy to save the life of pregnant women. In the view of the aforesaid section, the Supreme Court had granted liberty to the petitioner to terminate her pregnancy. The counsel further placed reliance upon the judgment in Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC 57, where the Supreme Court had permitted termination of pregnancy when the girl was into her 24th week of pregnancy. The Court held that “it is difficult for us to refuse the permission to the petitioner to undergo medical termination of pregnancy. It is certain that the fetus, if allowed to born, would have a limited life span with serious handicaps which cannot be avoided. It appears that the baby will certainly not grow into an adult.

It was requested by the petitioner to constitute a Committee of Doctors who can suggest whether the termination of pregnancy shall be allowed or not.

Court had already ordered the competent Medical Board to examine the petitioner-wife’s health condition and verify the report submitted. To the said order, the Board submitted their opinion and suggested that such termination was not possible after 20 weeks of pregnancy. The Court further on the request of the petitioner directed the respondents to constitute a Committee of 5 senior doctors immediately and the said Committee is directed to examine the physical condition of petitioner 1 and if it is found that it is not dangerous to her life, the Committee may proceed with the termination of her pregnancy.[Roshni v. State of M.P., 2019 SCC OnLine MP 1122, decided on 06-06-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.M. Borde and N.J. Jamadar, JJ. allowed a petition for termination of pregnancy of the petitioner who was 24-weeks pregnant. The termination of pregnancy was allowed in view of fetal anomalies.

The petitioner was examined by Sonologist and certain congenital anomalies were reported. According to the petitioner and her husband, the continuation of pregnancy was not desirable since there was a substantial risk of the child to be born being seriously handicapped. The Court directed the Medical Board at B.J. Medical College, Pune to examine the case and file a report. In its report, the Committee opined that the “baby has fatal complex cardiac anomaly.”

Relying on its earlier decisions, the High Court observed: “Although, sub-section (2) of Section 3 of the Medical Termination of Pregnancy Act, 1971 put a cap of 20 weeks for permitting the pregnant woman  to terminate the pregnancy, on consideration of Section 5, it would be logical to conclude that the contingencies referred in clauses (i) (ii) of sub-section 2(b) of Section 3 will have to be read in Section 5 of the Act and as such in an exceptional case, the request of a pregnant woman seeking permission to terminate the pregnancy beyond 20 weeks can be considered.” In such view of the matter, the Court allowed the petition. HoD of Obstetrics and Gynaecology at B.J. Medical College was directed to carry out the termination of pregnancy forthwith.

Also, it was clarified that the doctors who had put their opinions on record shall have the immunity in the event of the occurrence of any litigation arising out of the instant petition.

It was also directed that in the event the child is born alive, the medical experts and the hospital concerned will have to assume full responsibility to ensure that child is offered the best medical treatment available in the circumstances, in order that it develops into a healthy child.

Further still, the Court directed that if parents of child are not willing to or are not in a position to assume the responsibility for child, then, the State and its agencies will have to assume full responsibility for such child and offer such child medical support and facilities, as may be reasonably feasible, adhering always to the principle of best interests of such child as well as the Statutory provisions in the Juvenile Justice Act.[Vaishali Pramod Sonawane v. Union of India, 2019 SCC OnLine Bom 932, decided on 07-06-2019]

Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., in his own words, departed from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 and allowed termination of 20-weeks pregnancy of a 12-year old rape victim.

The present matter was concerned with the question of allowing the termination of pregnancy of the victim child. Dr Mamata Pradhan, Chairperson of the Medical Board constituted by the Court clarified that termination of pregnancy of 20 weeks bears the serious risk, but it could be done and for that reason, the guardian of the victim girl had to give a qualified consent on fully understanding the consequences and risks involved in such termination.

After elaborate consultations with Dr Pradhan, victim’s mother (her guardian) informed the Court that there is no alternative but to get the pregnancy terminated. A. Bhowmik, Advocate for the petitioners submitted that the court may pass appropriate orders having regard to Supreme Court decision in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339 wherein reproductive choice was recognised to be an inseparable part of personal liberty protected under Article 21.

Having regard to such a situation, the High Court directed Dr Pradhan and her team to commence the procedure of termination of pregnancy of the victim. The Court observed, “Having considered the injury that might torment the mental health of this young girl, this Court has taken the undertaking made by the mother seriously. In the circumstance, the foetus be terminated forthwith, making a departure from Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 for responding to the necessity created by human emergency.” The Court also recorded appreciation for B. Choudhary, Public Prosecutor and D. Sarma, Additional Government Advocate for their contribution. The matter was disposed of in the terms above. [Jhuma Roy v. State of Tripura, 2019 SCC OnLine Tri 80, Order dated 08-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of Bharati H. Dangre, J. allowed the termination of a pregnancy on grounds of it being a risky one as ‘multiple cardiac complications’ in the baby were expected.

Petitioner 1 was subjected to a medical examination and according to the opinion of the medical experts, the pregnancy was asked to be terminated since it posed risk and if the baby was given birth, it would have required multiple surgeries with high morbidity and mortality rate.

Further, the matter was directed to be placed before the Court so that the intended parents apprised of the report and would have accorded their consent. The intending father made a statement that he had gone through the report and noting the report and opinion of the doctors he gave his consent to the termination of pregnancy.

Thus, the High Court on noting the complications as stated by the doctors, directed for the termination of pregnancy on completing necessary formalities. [Kiran Kailas Gavhande v. Union of India, 2018 SCC OnLine Bom 7463, dated 28-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vibhu Bakru, J. allowed the termination of pregnancy of a minor whose fetus had already undergone a gestation period of 22 weeks.

In the present order, it was noted that the petitioner had approached the High Court for direction to respondents in regard of termination of her pregnancy even after being aware of the high risks involved with the same. The Court on interaction with the 16-year old rape victim noted that she insisted on the termination of pregnancy and seemed to be in considerable distress.

Further, the Court noted the observation of Dr Sanjay Agrawal, Director Professor of Psychiatry, who was of the view that the unwanted pregnancy was causing a considerable amount of distress to Ms X. Medical Board had submitted the report which indicated that abortions of about 22 weeks carry a higher risk of mortality and morbidity. The stated risk was explained to the petitioner as well as her father, both of whom were adamant that the pregnancy should be terminated.

Learned Counsel for the petitioner while citing various decisions of Supreme Court including Chanchala Kumari v. Union of India, WP(C) No. 871 of 2017 and Venkatalakshmi v. State of Karnataka, Civil Appeal No. 1538 of 2017, noted that the Court on examining the medical reports had permitted the termination even after 24 weeks of pregnancy.

Thus, the High Court keeping in consideration the above-stated allowed the petition and directed for the termination of pregnancy of the minor child. [X v. State (NCT of Delhi),2018 SCC OnLine Del 12891, Order dated 01-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of Ranjit More and Prakash D. Naik, JJ. heard a petition requesting termination of pregnancy of the petitioner’s daughter who was a victim of rape and was running into 27 weeks of pregnancy on the grounds that continuation of pregnancy would cause grave injury to the victim.

Relying on the medical report submitted by the Assistant Public Prosecutor which stated that “the petitioner’s daughter should be directed to continue pregnancy with medical and psychological support” and also on Section 3 of the Medical Termination of Pregnancy Act, 1971, the Court refused to interfere and dismissed the petition.

Section 3 of the MTP Act, 1971 states that a pregnancy may be terminated where the length of a pregnancy exceeds 12 weeks (before which a medical practitioner is permitted to terminate a pregnancy) but not 20 weeks, and at least two registered medical practitioners must be of the opinion, formed in good faith, that the continuation of the pregnancy would gravely injure the woman’s physical or emotional health. The Explanation provides that if the pregnancy has been caused by rape, the anguish caused by such a pregnancy would constitute grave injury to mental health of the woman. [Danbahadur Rajkaram Yadav v. State of Maharashtra, 2017 SCC OnLine Bom 8900, order dated 13.10.2017]



Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ issued notice to the Central Government on the petition seeking framing of appropriate medico legal guidelines for urgent and safe termination of pregnancy under safe medical facilities including termination of pregnancies beyond 20 weeks in the exceptional cases.

The petition also sought for constitution of a committee for framing of appropriate medico legal guidelines for setting up a permanent mechanism for expedient termination of pregnancies beyond 20 weeks in the exceptional cases particularly involving rape survivors and women and abnormal foetus’s under safe medical facilities and with adequate inputs from an association of professionals & experts.

The Court, however, refused to entertain the payer where the petitioner had sought directions for urgent amendment of Section 3 of the Medical Termination of Pregnancy Act, 1971, so as to permit termination of pregnancies of more than 20 weeks for expedient termination of pregnancies beyond 20 weeks in the cases particularly involving rape survivors and women with abnormal foetus’s under safe medical facilities. The Court said that the said prayer was in the legislative realm and hence, it will not interfere. [Anusha Ravindra v. Union of India, Writ Petition (Civil) No.934/2017, order dated 13.10.2017]

Hot Off The PressNews

Supreme Court: The 10-year-old girl, who’s plea to terminate her pregnancy was refused by the Supreme Court on 28.07.2017, will receive Rs. 10 Lakh compensation from the Chandigarh Administration as directed by the Court. The Court asked the Chandigarh administration to release Rs. 1 Lakh to the family of the girl and keep the remaining Rs. 9 Lakh in Fixed Deposit.

On 28.07.2017, the Court had held that allowing the termination of her pregnancy might be dangerous for the girl’s health, based on the medical report of the 10-year-old rape survivor who was repeatedly raped by her uncle. The Medical Board of PGI, Chandigarh said in it’s report that  it would neither be in the interest of the girl child nor the alive foetus, which is approximately 32-weeks-old, to order abortion.

Source: ANI

Case BriefsSupreme Court

Supreme Court: The bench of SA Bobde and L Nageswara Rao, JJ allowed a 26-year-old woman, who is in 25th week of pregnancy, to terminate her pregnancy after her fetus was diagnosed with Anencephaly, a defect that leaves foetal skull bones unformed and is both untreatable and certain to cause the infant’s death during or shortly after birth. The medical board’s report said that the condition of the foetus was also dangerous for the mother’s life.

Noticing that the fetus is without a skull and would, therefore, not be in a position to survive, the Medical Board said that the continuation of pregnancy can pose severe mental injury to the petitioner and no additional risk to the petitioner’s life is involved if she is allowed to undergo termination of her pregnancy. The Court, hence, said that it was in the interests of justice and particularly, to permit the petitioner to undergo medical termination of her pregnancy under the provisions of Medical Termination of Pregnancy Act, 1971. [Mamta Verma v. UOI, WRIT PETITION (CIVIL) NO.627 OF 2017, decided on 09.08.2017]

Hot Off The PressNews

Supreme Court: Hearing the appeal of a 10 year old rape survivor aggrieved by the order of a Chandigarh Court that refused to allow her to terminate her 26 week old foetus, the Court issued notice to the Centre and asked the Chandigarh Legal Service authority to get the girl examined at PGI Chandigarh.

The Medical Termination of Pregnancy Act, 1971, allows the termination of a foetus no more that 20 week old. The girl who was repeatedly raped by her uncle, is in her 26th week of pregnancy. In such cases the Court, based on the medical report, weighs the risks on the life of the woman/girl if the pregnancy is allowed to be terminated or ordered to be continued.

The Court will take up the matter on 28.07.2017, after the Medical team at PGI Chandigarh has submitted it’s report.

Source: ANI


Case BriefsHigh Courts

Gujarat High Court: A Bench comprising of J.B. Pardiwala, J. allowed a writ application filed by a victim of rape for termination of her pregnancy, subject to her examination by two doctors to ensure that the termination can be carried out safely.

The applicant, a 16 year old girl was a victim of rape, due to which she got impregnated. The Medical Termination of Pregnancy Act only allows for termination of pregnancy below 20 weeks. Since, her pregnancy was a bit above 20 weeks she made an application for termination to the Court. The Court noted that the victim is aged sixteen years and is carrying pregnancy of above 20 weeks, which will cause a lot of mental stress and grave injury to her mental health.

The Court followed the case of Madhuben Arvindbhai Nimavat v. State of Gujarat,  2016 SCC OnLine Guj 662 in which a plethora of cases dealing with identical issues were discussed and the test of ‘best interest’ was applied. In that case, it was held that the Court shall have to consider the course of action bearing in mind the ‘best interest’ theory. Victim girl is very young. Her trauma, mental agony and possibilities of social ostracism needs to be kept in view. Considering the medical opinion on feasibility of continuing pregnancy as well as social circumstances faced by the victim, the Court’s decision has to be guided by the best interest of the victim alone and not of the guardians or the society.

In the present case, the Court observed that a doctor has personally examined the victim and submitted that she is in a fit condition to undergo termination and it is not likely to endanger her life. Consequently, the Court disposed of the application by directing that two other doctors, will examine the victim once again to ensure that the pregnancy can be terminated without compromising the safety of the victim. If the procedure is safe for her, the pregnancy should be terminated. [Pujaben Subedar Yadav v. State of Gujarat, 2017 SCC OnLine Guj 453, decided on 3-5-2017]

Case BriefsSupreme Court

Supreme Court: Paying heed to the grievance of a 35-year-old woman, a victim of sexual assault, who sought for termination of pregnancy on the ground that she is HIV positive, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed the Medical Board at AIIMS, New Delhi to examine the petitioner and submit a report to the Court on the next date of hearing i.e. 08.05.2017 so that attempts can be made to save the life of the petitioner.

Earlier, the Patna High Court had directed the Medical Board at Indira Gandhi Institute of Medical Sciences, Patna to examine the petitioner. The report of the said Board stated that a major surgical procedure was required. The High Court hence held that the Medical Board report has stated that it would be unsafe to the life of the petitioner and further there is compelling State’s responsibility to keep the child alive.

 Stating that the quintessential purpose of life, be it a man or a woman, is the dignity of life and all efforts are to be made to sustain it, the Court said that a woman, who has already become a destitute being sexually assaulted and suffering from a serious medical ailment, should not to go through further sufferings. [Indu Devi v. State of Bihar, 2017 SCC OnLine SC 560, order dated 03.05.2017]


Case BriefsHigh Courts

Madras High Court: Deliberating upon a relevant issue as to whether, “a minor daughter’s right to life under Article 21 of the Constitution includes the right to create a life”, the Bench of Dr. S. Vimala, J., observed that it is a woman’s choice and her autonomy to decide what to do with her body,  including conceiving a child and retention of pregnancy. With this observation, the Court thus held that considering the right to life, which includes the right to create a life, the right to dignity, the right to autonomy and bodily integrity, the Court cannot order the abortion of the foetus against the wishes of the victim girl as in the present case.

The present writ petition came up whereby which the petitioner (father) pleaded before the Court to direct the government hospital to medically terminate the pregnancy of his daughter under Section 3 of the Medical Termination of Pregnancy Act as the continuance of such pregnancy would cause grave physical and mental agony to his daughter, however the daughter was reluctant to abort the foetus and expressed her desire to continue with the pregnancy.

Examining the contentions of the parties, the Court first chose to look into the matter as to whether the daughter was a minor or major on the date of the alleged occurrence and on the date of production before the Court. Perusing the evidences, the Court decided that at the time of the sexual intercourse and conception the girl was a minor (17 years), however she attained majority on the date of her production before this Court. The Court further observed that India has ratified the United Nations Convention on the Rights of the Child (UNCRC) which places importance upon the decision-making ability of a child in matters affecting him/her directly or indirectly. Furthermore the Court highlighted the controversies surrounding certain provisions of the Protection of Children from Sexual Offences Act, 2012 and the disadvantages of teenage pregnancies. However, upon observing that the girl has formed a positive opinion regarding continuing her pregnancy, the Court declined to pass any order regarding termination of her pregnancy. The Court also observed that controversies, conflicts and constitutional validity of the POCSO Act can only be decided by the Division Bench of this Court as per the considerations of the Chief Justice of this Court. [Marimuthu v. The Inspector of Police, WP (MD) No. 12212 of 2016, decided on 19.09.2016]

Case BriefsSupreme Court

Supreme Court: Acting upon the report of the Medical Board at KEM Hospital and Medical College, Mumbai, constituted to medically examine the petitioner, a rape survivor, the Court said that that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Court, hence, made an exception and held that it is permissible to allow the petitioner to abort the 24 week-old foetus in terms of Section 5 of the Medical Termination of Pregnancy Act, 1971. As per Section 5 of the Act, the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.

On 22.07.2016, the bench comprising of JS Khehar and Arun Mishra, JJ. had directed the Maharashtra Government to set up a medical board to examine the rape survivor who sought permission to terminate her 24 week old foetus and the medical examination was directed to be conducted on 23.07.2016. The Medical Board had advised against the continuation of pregnancy and had noticed that in view of severe multiple congenital anomalies, the fetus is not compatible with extra-uterine life and that the pregnancy might endanger the health of the petitioner. [Ms. X. v. Union of India, 2016 SCC OnLine SC 745, decided on 25.07.2016]

Case BriefsHigh Courts

Gujarat High Court: Considering the fragile physical and mental health of the minor rape victim (‘Petitioner’), the Court allowed the Petitioner to terminate her pregnancy after 22 weeks of pregnancy as an exception to the provision of Medical Termination of Pregnancy Act, 1971. The Court said that the continuance of her pregnancy can cause grave injury to her mental health.

The Court followed the reasoning in Bhavakiben v. State of Gujarat in Special Criminal Application (Direction) No. 1155 of 2016, wherein the ‘best interest’ of the victim was to be the parameter, necessitating careful enquiry into medical opinion on the feasibility of the pregnancy as well as the social repercussions. In the present case, the victim suffered from fragile health and severe anemia, at gestation of 22 weeks and 3 days. Learned APP Mr. Ronak Raval while relying upon some of the judgments delivered by this Court and submitted that the Court may direct for termination of pregnancy, if deems fit, considering the mental health and overall picture. The Court allowed the prosecutrix-petitioner and her parents the right to determine the further course of action with the advice of the Senior Expert Doctor (PDU, Government Medical College, Rajkot) and directed the medical team to conduct all the required tests including haemoglobin test and to report her status to the Court in a week’s time before proceeding to terminate her pregnancy. Further, the Medical Superintendent, PDU Civil Hospital Rajkot directed to hand over tissues from the foetus to the Police Inspector at the Mahila Police Station in Rajkot, for transmission to the Forensic Science Laboratory. [Madhuben Arvindbhai Nimavat v. State of Gujarat, 2016 SCC OnLine Guj 662, decided 08.06.2016]

Legislation UpdatesStatutes/Bills/Ordinances

Ministry of Health & Family Welfare vide a notification dated October 29, 2014, proposes to bring certain amendments in Medical Termination Pregnancy Act, 1971. The Medical Termination Pregnancy (Amendment) Bill, 2014 proposes to exceed the limit for termination of pregnancy to twenty four weeks. It seeks to amend Section 3 of Act of 1971 which deals with Termination of pregnancy by registered medical practitioner. It also proposes to substitute the ‘registered medical practitioner’ with ‘registered health care’ and sub section (2) which says that a pregnancy may be terminated by a registered health care provider (a) On the request of a woman, where the length of pregnancy does not exceed twelve weeks. (b) (i) where the length of pregnancy exceeds  twelve weeks but does not exceed twenty weeks or; (ii) where the length of pregnancy exceeds twenty weeks but does not exceed twenty four weeks and the woman falls in the categories, as may be prescribed.

The provisions of sub section (2) related to the length of pregnancy shall not apply to the termination of pregnancy by registered health care provider where termination of such pregnancy is necessitated by diagnosis of any substantial foetal abnormalities.

To read the Bill, click here