Allowed

Sandhya Padhy v. Union of India Thru Ministry of Law and Justice and Ors.

Bombay HC26 Sept 2018WP/10711/2018

Case brief

AI extract

What is this about?

The High Court permitted a petitioner to undergo medical termination of pregnancy at Nowrosjee Wadia Maternity Hospital. The court accepted a medical board's opinion indicating a substantial risk of serious physical handicap to the fetus, allowing termination under Section 5 of the Medical Termination of Pregnancy Act, 1971, and granted immunity to the doctors.

What did the court decide?

Permission to undergo medical termination of pregnancy at Nowrosjee Wadia Maternity Hospital on September 28, 2018, with immunity to doctors.

Sandhya Padhy Vs Union of India Thru Ministry… — Pension and Retirement Benefits | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.10711 OF 2018

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XYZ

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vs.
The State of Maharashtra
and others

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...Petitioner

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...Respondents

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Ms Bhavana Mhatre a/w Ms Meenaz Kakalia I/b
Mr.Kranti L.C. for the Petitioner
Mr.P.G.Sawant, AGP for the respondent No.2
Ms Purnima Awasthi for respondednt No.1

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CORAM : A.S.OKA, &
 M.S.SONAK, JJ.

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 DATE : SEPTEMBER 26, 2018

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P.C. :

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1Perused the order dated 21st September 2018.
The petitioner has tendered additional affidavit to
which a photo copy of her Aadhar Card is annexed.
Affidavit is taken on record and marked `A-1' for
identification.

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2In terms of the order dated 21st September 2018,
a medical board constituted by the Dean of Sir
J.J.Group of Hospitals has submitted a report. The
medical board consisted of seven Doctors attached to
Grant Medical College, Mumbai. The Board consisted
of 1) Professor and Head of Department of Obstetrics
and Gynecology of Grant Medical College and Sir
J.J.Group of Hospitals, 2) Professor and Head of the
Department of Psychiatry, Sir J.J.Group of

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Hospitals, 3) Professor and Head of Department of
Radiology, Sir J.J.Group of Hospitals, 4) Professor
and Head of Department of Paediatrics, Sir J.J.Group
of Hospitals, 5) Professor and Head of the
Department of Cardiology, Sir J.J.Group of
Hospitals, 6) Professor and Head of the Department
of Pediatrics Surgery, Sir J.J.Group of Hospitals,
7) Professor and Head of the Department of C.V.T.S.,
Sir J.J.Group of Hospitals and 8) Professor and Head
of the Department of Neurosurgery, Sir J.J.Group of
Hospitals. The report is taken on record and marked
`R-1' for identification. In the report, opinion of
the Board is recorded. The opinion reads thus:

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COMMITTEE OPINION

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UPON EXAMINATION AND AFTER CAREFUL STUDY OF

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MULTIPLE SONOGRAPHY REPORTS, IT IS
CONFIRMED THAT THE FETUS SUFFERS FROM
SERIOUS NEUROLOGICAL ABNORMALITY IN THE
FORM OF UNILATERAL DILATATION OF LEFT
LATERAL VENTRICLE MEASURING 24 MM,BRAIN
PARENCHYMA IS THINNED OUT 7 CLEFT LIP.
THIS CONDITION IS LIKELY TO WORSEN WITH
INCREASING GESTATIONAL AGE.

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THE CONDITION OF THE FETUS FULFILLS
STHE CRITERIA OF “SUBSTANTIAL RISK OF
SERIOUS PHYSICAL HANDICAP”.

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THE WOMAN HAS BEEN EXPLAIINED ABOUT THE
OUTCOME IN HER LANGUAGE SHE UNDERSTANDS.

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THE PREGNANT WOMAN HAS VOLUNTARILY
EXPRESSED HER DESIRE TO TERMINATE THE
PREGNANCY AND IS WELL INFORMED ABOUT THE
NATURE OF THE CONDITION OF FETUS AND ITS
OUTCOME. SHE IS ANGUISHED WITH THE
CONDITION OF THE FETUS IN UTERO. HENCE IT
IS ADVISABLE TO TERMINATE THE PREGNANCY.

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THE PREGNANCY WAS WITHIN PERMISSIBLE
LIMITS FOR MTP, WHEN SHE CAME FOR MTP.
HENCE TERMINATION OF PREGNANCY CAN BE
ALLOWED WITH DUE RISK I/V/O FETAL
ANOMALIES.”

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3We have heard the learned counsel for the
petitioner. The learned AGP for the second
respondent and the learned counsel for the first
and third respondents.

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4Our attention is invited to the decision of the
Division Bench of this Court dated 9th January 2018
in Writ Petition St.No.36727 of 2017 in the case of
Shaikh Ayesha Khatoon vs. Union of India and others.
The Division Bench was dealing with the similar case
where the petitioner lady was in the 27th weeks of
pregnancy. In the present case, the petitioner is
in 26th week of pregnancy. The Division Bench
considered sections 3 and 5 of the Medical
Termination of Pregnancy Act,1971 (for short `the
said Act').

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5In paragraph 10, the Division Bench quoted
sections 3 and 5 of the said Act. Paragraph 10 reads
thus:

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“10Section 3(2)(b)(i) and (ii) as well as
section 5 (1) of the Act of 1971 read thus:

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“3. When pregnancies may be terminated by registered medical practitioners -

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(1) xxxx

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(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, -

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(a) xxxx

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(b) where the length of the pregnancy
exceeds twelve weeks but does not exceed
twenty weeks, if not less than two
registered medical practitioners are, of
opinion formed in good faith, that -

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(i) the continuance of the pregnancy would
involve a risk to the life of the pregnant
woman or of grave injury to her physical or
mental health; or

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(ii) there is a substantial risk that if
the child were worn, it would suffer from
such physical or mental abnormalities as to
be seriously handicapped.”

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“5.Sections 3 and 4 when not to apply –

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(1) The provisions of section 4, and so much
of the provisions of sub-section (2) of
section 3 as relate to the length of the
pregnancy and the opinion of not less than
two registered medical practitioners, shall
not apply to the termination of a pregnancy
by a registered medical practitioner in a
case where he is of opinion, formed in good
faith, that the termination of such
pregnancy is immediately necessary to save
the life of the pregnant woman.”

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In paragraph 13, the Division Bench held thus:

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“13It is further observed that ordinarily
a pregnancy can be terminated only when a
medical practitioner is satisfied that a
continuance of the pregnancy would involve a
risk to the life of the pregnant woman or of
grave injury to her physical or mental
health [as per section 3(2)(b)(i) of the Act
of 1971] or when there is substantial risk
that if the child were born, it would suffer
from such physical or mental abnormalities
as to be seriously handicapped [as per
Section 3(2)(b)(ii) of the Act of 1971]. It
is true that Clauses (I) and (ii) of sub-
section 2 (b) of Section 3 are attracted in
the case where the length of the pregnancy
exceeds twelve weeks but does not exceed
twenty weeks. However, as has been recorded

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above, Section 5 permits termination of
pregnancybyaregisteredmedical
practitioner in case where he is of opinion,
formed in good faith, that the termination
of such pregnancy is immediately necessary
to save the life of the pregnant woman. It
shall also have to be construed that Section
5 brings within its ambit the provisions of
Section 4 and so much of the provisions of
sub-section (2) of Section 3 of the Act of
1971 except the limitation in respect of
length of the pregnancy of 20 weeks as
provided in sub-section (2)(b) of Section 3
of the Act of 1971. It would thus 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 of 1971 and it
would be relevant to consider the threat
perception and substantial risk involved if
the child were to born, it would suffer from
such physical or mental abnormalities as to
be seriously handicapped. The contingencies
laid down in Clauses (i) & (ii) of sub-
section (2) (b) of Section 3 shall therefore
equally apply to the request of a pregnant
woman seeking permission to terminate the
pregnancy beyond 20 weeks and accordingly
Section 5(1) will have to be construed, to
meet the object and purpose of enactment and
to promote cause of justice.”

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6Even in paragraph 22, the Division Bench
reiterated that if the conditions laid down in
clauses (i) and (ii) of sub-section 2(b) of section
3 of the said Act are satisfied, it would provide a
good ground for exercising jurisdiction under
section 5 of the said Act. In the present case,
going by the opinion of the Medical Board, the
contingencies provided in clauses (i) and (ii) of
sub-section 2(b) of section 3 of the said Act exist.
The Medical Board has opinioned that there is a
substantial risk of child being born with serious
physical handicap. There is no reason to discard
the opinion of the Medical Board.

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7The opinion of the Medical Board records that
the petitioner is well informed about the nature and
condition of the fetus and its outcome and she has
voluntarily expressed her desire to terminate the
pregnancy.

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8The averments made in the petition show that
the petitioner wants to undergo medical termination
of pregnancy in Nowrosjee Wadia Maternity Hospital,
Parel, Mumbai which is admittedly, a hospital run by
Brihanmumbai Mahanagar Palika.

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9This is a case where the petitioner is willing
to undergo medical termination of pregnancy. The
petitioner is aware about the risks involved and the
petitioner has agreed to bear the expenses. As

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observed in the case case of Shaikh Ayesha Khatoon
(supra), it is obvious that the Doctors who are a
part of Medical Board and the Doctors who supervise
the procedure of medical termination of pregnancy
will enjoy immunity from any legal action arising
out of this litigation.

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10 Accordingly, we pass the following order:

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(i) We permit the petitioner to undergo medical termination of her pregnancy in Nowrosjee Wadia Maternity Hospital, Parel, Mumbai. It will be open for the petitioner to report to the office of the Head of the Department of Gynecology of the said hospital on Friday i.e. 28^th September 2018 at 11.00 a.m. The petitioner will produce a copy of this writ petition along with annexures and documents of identity which shall be verified by the concerned officers of the said hospital;

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(ii)We direct the authorities of Nowrosjee Wadia Maternity Hospital to admit the petitioner immediately on her reporting on Friday 28^th September 2018 and ensure that the procedure for medical termination of pregnancy will be undertaken;

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(iii) Needless to add that the medical termination of pregnancy will be at the

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risk of the petitioner and the doctors who
are the members of the Medical Board and
the doctors who will perform the procedure
will enjoy immunity from any legal action
arising out of this litigation;

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(iv) The petition is disposed of on the above terms;

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(vi) Hospital Authorities to act on an authenticated copy of this order.

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(M.S.SONAK,J.)

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 (A.S.OKA,J.)

Sandhya Padhy v. Union of India Thru Ministry of Law and Justice and Ors.

Case brief

What is this about?

What did the court decide?

Sandhya Padhy v. Union of India Thru Ministry of Law and Justice and Ors.

Case brief

What is this about?

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What the court decided

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