Allowed

Sarla Gajanan Jadhav v. the State of Maharashtra and Another

Bombay HC1 Feb 2019WP/1343/2019

Case brief

AI extract

What is this about?

This court allowed a writ petition by a rape victim seeking termination of a 24-week pregnancy complicated by fetal malformation. Relying on MTP Act Section 5 and Supreme Court precedents, the court granted permission based on grave mental injury and substantial fetal risk, directing the petitioner to proceed with the procedure.

What did the court decide?

Permission granted to the petitioner to undergo medical termination of pregnancy at Government Medical College and Hospital, Aurangabad.

Sarla Gajanan Jadhav Vs the State of… — Constitutional and Fundamental Rights | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.1343 OF 2019

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Sau.Sarla w/o Gajanan Jadhav
Age 35 years, Occu.Hosehold
R/o At Post Dhavada, Taluka Bhokardan
District Jalna

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PETITIONER

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VERSUS

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1. The State of Maharashtra,

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 Thorough its Secretary,
 Public Health Department,
 Mantralaya, Mumbai- 400 032

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2. The Dean,
 Government Medical College & Hospital,
 Ghati, AurangabadRESPONDENTS

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Mrs Sabahat T. Kazi, Advocate for the petitioner
Mrs M.A.Deshpande, AGP for respondent nos. 1 & 2

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CORAM : PRASANNA B. VARALE &
S.M.GAVHANE,JJ.
DATED :01.02.2019

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P.C. :-

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1.Heard learned Counsel for the petitioner.

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Considering the urgency claimed by the petitioner, by

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order dated 29.01.2019, we have permitted to the
petitioner to undergo the exercise of medical examination

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of the Medical Board. Learned AGP with the assistance of

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respondent No.2 submitted a report of the Committee
before us. The Committee consists of eight Doctors under
the Chairmanship of Dr. Zine, Medical Superintendent,
Government Medical College and Hospital, Aurangabad.

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Other members of the Committee are Dr. Anurag Sonawane,
Dr. Prashant Titare, Dr. Anil Joshi, Dr. Pradip Deshmukh,

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Dr. Amol Joshi, Dr. Anant Beedkar and Dr. Dattatraya
Gangurde. The report report is duly signed by the
members of the Committee which states that the patient
was examined thoroughly and the Committee also had gone
through obst sonography of the patient and recorded
finding as below:-

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(1)Length of pregnancy has Average
Gestational age of 24 weeks 2 days.

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(2)On obstetric ultrasonography dated
31.01.2019, done at GMC, Aurangabad. Following
findings are noted

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Single live intrauterine foetus with
Finding Suggestive of Dandy Walker malformation
with hydrocephalus.
Theses are -

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 Severe neurodevelopmental anomalies in the form
of inferior vermis hypoplasia dilatation of both

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side lateral ventricals of brain and
communicating cyst of size 2.8cm x 1.6cm
communicating with the fourth ventricle. These
neurodevelopmental anomalies are likely to cause
severe neurological deficits in the fetus if
born.

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Taking into consideration the above findings
there is evidence of substantial risk to the
fetus if born, Pregnancy can be terminated with
due risk to mother and the risk is explained to
the mother.

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2.Learned Counsel appearing for the petitioner by

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inviting our attention to the documents placed on record,

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namely, the report issued by a private diagnostic center,
provisions of the Act, as well the judgments of the Apex

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Court and Division Bench of this Court, drew support for
his contentions. Learned Counsel for the petitioner was
justified in inviting our attention to the judicial
pronouncement and we are certainly guided by this
authoritative pronouncement by the Hon'ble Apex Court in

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the matter of “X” and others Vs. Union of India,
MANU/SC/0149/2017 and order passed by Division Bench of

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this Court in the matter of “X” Vs. State of Maharashtra
and others in Writ Petition No.12408 of 2017. There is

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some difference in the facts, namely, in Writ Petition
No.12408 of 2017, the petitioner was unfortunate victim
who had suffered physical abuse and mental torture and
had approached this Court, whereas here it is the
petitioner who is household lady faced with unforeseen
and unfortunate situation approaching this Court. The
Division Bench of this Court in the order dated 13th
October, 2017 referred to report received by the Court,
the constitution of Board, the conclusion drawn by the
Committee in the report. The Division Bench further
referred to provisions and the Medical Termination of
Pregnancy Act, 1971 and more particularly sections 3,4

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and 5 of Act. It would be useful for our purpose to
refer to observations of the Division and the same reads
as under :-

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”10.Although section 3 of the Act provides
the limit of 12 weeks for medically terminating
pregnancy by a medical practitioner and, where
the length of pregnancy exceeds 12 weeks but
does not exceed 20 weeks and if, not less than
two medical practitioners are of opinion, formed
in good faith, the continuance of pregnancy
would involve a risk to the life of pregnant

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woman or grave injury to her physical or mental
health or that there is a substantial risk that
if the child were born, it would suffer from
such physical or mental abnormalities as to be
seriously handicapped, it would be permissible
to terminate the pregnancy. It must be noted
that section 5 of the Act is not controlled by
the limitation in respect of duration of
pregnancy contained in sections 3 and 4 of the
Act. If in the opinion of medical experts,
arrived at in good faith, the termination of
pregnancy is immediately necessary to save the
life of the pregnant woman, such a pregnancy can
be terminated. It also must be noted that
Explanation 1 to section 3 records that where
the pregnancy is alleged by the pregnant woman
to have been caused by rape, the anguish caused
by such pregnancy can be presumed to constitute
a grave injury to the mental health of the
pregnant woman. Sub-section (1)(b)(i) of section
3 refers to the risk involved to the pregnant
woman which includes even injury in respect of
mental health. There shall not be reason to
doubt that since pregnancy in the instant matter
is as a result of offence of rape, it causes a
huge mental trauma and such inference is in
consonance with explanation 1 to section 3(1) of
the Act of 1971. “

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3.The Division Bench also referred to judgment of

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the Apex Court in the case of Suchita Srivastava Vs.
Chandigarh Administration, 2009(9) SCC 1 and it states
that there is no doubt that a woman's right to make

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reproductive choices is also a dimension of “personal

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liberty” as understood under Article 21 of the
Constitution of India. It is important to recognise that
reproductive choice can be exercised to procreate as well
as to abstain from procreating. The crucial consideration

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is that a woman's right to privacy, dignity and bodily
integrity should be respected. It refers to the
observations made by Division Bench of this Court in Sou
Moto Public Interest Litigation No.1/2016 in the matter

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of High Court on its own motion Vs. The State of
Maharashtra, LEX(BOM) 2016 9 page 114, in para 13 and
these observations read thus :-

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“13. A woman irrespective of her marital status
can be pregnant either by choice or it can be an
unwanted pregnancy. To be pregnant is a natural
phenomenon for which woman and man both are
responsible. Wanted pregnancy is shared equally,
however, when it is an accident or unwanted,
then the man may not be there to share the
burden but it may only be the woman on whom the
burden falls. Under such circumstances, a
question arises why only a woman should suffer.
There are social, financial and other aspects
immediately attached to the pregnancy of the
woman and if pregnancy is unwanted, it can have
serious repercussions. It undoubtedly affects

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her mental health. The law makers have taken care of helpless plight of a woman and have enacted Section 3(2)(b)(i) by incorporating the words "grave injury to her mental health". It is mandatory on the registered medical practitioner while forming opinion of necessity of termination of pregnancy to take into account whether it is injurious to her physical or mental health. While doing so, the woman's actual or reasonable foreseeable environment may be taken into account .”

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4.The Division Bench then refers the judgment of the

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Apex Court in the matter of Appellant “X” Vs. Union of
India & Ors, AIR 2016 SC 3525 and observed that the

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Hon'ble Apex Court considering the provisions of Section
5 of the Act of 1971, permitted termination of pregnancy

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of duration of 23 to 24 weeks. It is observed in the
judgment that section 3 leaves no room for doubt that it
is not permissible to terminate pregnancy after 20 weeks,

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however, section 5 of the Act lays down exception to
section 3. It is further observed that termination of

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pregnancy which is necessary to save life of a pregnant

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woman is permissible(Emphasis supplied).

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5.

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5.The Hon'ble Apex Court in the matter of

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Appellant “X” Vs. Union of India and others, AIR 2017 SC
1055 granted permission for termination of pregnancy of
duration of 24 weeks since it was noticed that the foetus

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could not survive. It may not be necessary for us to

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refer to further observations and on the facts in the
matter of Writ Petition 12408 of 2017, wherein the
petitioner was subjected to physical and mental trauma in
the exploitation suffered by her.

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6.Learned Counsel for the petitioner was justified
in placing reliance on the judgment of this Court in the

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matter of Ayesha Khatoon Vs. Union of India and
Ors.MANU/MH/0028/2018. It would be relevant for our

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purposes to refer the observations of the Division Bench
from the judgment.

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20.Generally speaking, Statutes are
classified in fourfold manner. Firstly, the
statutes are remedial, secondly they are
declaratory, thirdly they are procedural and
lastly they are penal or disentitling. One has
to find out the character of the statute as to

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whether it is penal or not, so as to apply
principles of strict construction. In the
instant matter it cannot be said that the
provisions of the enactment which are relevant
for consideration are penal in character.
In a way, the provision is remedial
and procedural. The provision, therefore, cannot
be applied the standards as regards
interpretation of a Statute which is penal in
character.

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21.On analysis of the judgments and the
narrations, as recorded above, one must while
interpreting the provisions of law, bear in mind
that the provision as to be interprted by
reading all of its parts together and it is not
permissible to omit any part thereof. The golden
rule of interpretation is that the provisions
of law have to be read as it is
without adding or subtracting anything
therefrom. In an appropriate case, the Court
can only iron out the creases but while doing
so, it must not alter the fabric, of which an
Act is woven.

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22. In the instant matter, on reading of
Section 5 of the Act of 1971, it does transpire
that the contingencies and the parameters laid
down in clauses (i) & (ii) of subsection (2)(b)
of Section 3 shall have to be read in Section 5
except the bar of limitation as provided in
Section 3(2)(b) of the Act of 1971. It would
not be appropriate to over look the
contingencies laid down in clauses (i) & (ii) of
subsection (2) (b) of Section 3 while
considering the request of a pregnant woman for
termination of the pregnancy if the conditions
laid down in clauses (i) & (ii) of subsection
(2)(b) of Section 3 are satisfied it would

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provide a good ground for exercise of
jurisdiction under Section 5 of the Act of 1971.

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23. The Ministry of Health and Family
Welfare, Government of Maharashtra has
prepared the MTP (Amendment) Bill and
the notification in that regard was published on
29.10.2014. The State Government has proposed
amendment to Section 3 of the Act of 1973 and
clause (C) is proposed to be added which reads
thus :

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“(C) the provisions of subsection (2) of
section 3 as relate to the length of the
pregnancy shall not apply to the
termination of a pregnancy by a registered
health care provider where the termination
of such pregnancy is necessitated by the
diagnosis of any of the substantial
foetal abnormalities as may be prescribed.”

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x x x x x

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27. The Counsel appearing for the
petitioner states, on instructions, that the
petitioner will bear the medical expenses of the
procedure of medical termination of pregnancy at
a medical facility of her choice.

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28. It is clarified at this stage that the
petitioner has been sensitized by the
Committee/Medical Board about the risk factors
involved and it would be open for the petitioner
to undergo the procedure of medical termination
of pregnancy at her own risk and
consequences. It is further made clear that the
Doctors who have put their opinions on record
shall have the immunity in the event
of occurrence of any litigation arising out of

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the instant Petition.

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29. Rule is accordingly made absolute.
There shall be no order as to costs. The
operative part of this judgment shall be
uploaded today and all concerned parties,
including concerned approved Medical
Center, to act upon the authenticated copy of
the operative order.

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7.In the present matter, the petitioner has also

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been sensitized by the Committee/Medical Board about risk

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factors involved and learned Counsel for the petitioner
reiterated and assures this fact that the petitioner has

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been sensitized about the risk factors involved. Learned

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Counsel for the petitioner, on instructions, submits
before us that that petitioner is ready to go before the

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Medical authorities of respondent No.2 i.e. the
Government Medical College and Hospital, Aurangabad
tomorrow i.e. 2nd February, 2019, for the exercise of
termination of pregnancy by following due procedure of
the Government Medical College and Hospital, Aurangabad

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and by bearing expenses as required.

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8.In view of these facts, the writ petition is

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allowed in terms of prayer clause (B).

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9.Parties to act upon authenticated copy of this

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order.

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[S.M.GAVHANE,J.] [PRASANNA B. VARALE,J.]

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Habeeb

Sarla Gajanan Jadhav v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

Sarla Gajanan Jadhav v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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