In the High Court of Madhya Pradesh W.P. No. 6494/2020 Petitioner Asthha Pande Respondent State of M.P & Anr Date of Judgement 26 March, 2020 Bench Judge Vivek Rusia
Facts of the Case
The petitioner is a Student pursuing BA, she got pregnant by her boyfriend, who later broke his relationship with her after 24 weeks of pregnancy and refused to marry with her. So she wanted to terminate her pregnancy for which she approached the M.Y Hospital where the Medical Practitioner refused to terminate the pregnancy of 24 weeks and same is impermissible under the provision of Medical Termination of Pregnancy Act, 1971. Therefore, the filed the present petition seeking direction for termination of her pregnancy by the registrated Medical Practitioner.
Whether termination of pregnancy after 24 weeks be permitted against the provisions of Section 3 of the Medical Termination of Pregnancy Act, 1971 where the time permitted for termination is on or before 20 weeks?
Though the petitioner signed the affidavit in support of the petition, but for the satisfaction of the court, the Principal Registrar is directed to record the statement of the Petitioner in the support of the averments made in the petition. Except the petitioner, no one will appear before the Principal Registrar at the time of recording her statement and it shall be an incamera proceedings. The Principal Registrar shall record the statement of the petitioner in “Question and Answer” form and submit the report to this court during the course of the day. The Principal Registrar was requested to take a statement of the petitioner in order to verify as to whether she is still willing to terminate the pregnancy? The Principal Registrar has recorded her statement in camera proceedings and according to which still she is willing to go for termination of the pregnancy.
Counsel appearing for the petitioner submits that because of this unwanted pregnancy, the petitioner is suffering grave injury to her mental health hence, despite exceeding the 20 weeks of pregnancy, with the permission of the Court the pregnancy can be terminated. In support of his contention, he is placing reliance over the judgment passed by the Apex Court in the case of Suchita Shrivastava & another V. Chandigarh Administration reported in (2009) 9 SCC 1 in which the apex Court held that with the consent of the woman the pregnancy can be terminated even after 20 weeks of pregnancy.
Shri Vinay Gandhi learned Govt. Advocate appearing for the respondent/State submits that the termination of pregnancy beyond the period of 20 weeks is impermissible under the provisions of Act of 1971. The petitioner is not fulfilling any of the contingency provided under Sub Clause (i) (ii) & (b) of Sub Section 2 of Section 3 of the Act of 1971. She approached the M.Y. Hospital for termination of pregnancy after crossing the period of 22 weeks. She had knowledge of pregnancy long back but chosen to continue with the pregnancy. By her volunteer act she entered into the physical relationship with the boy at the age of majority. She was very much aware of the consequence of it and continued with the unwanted pregnancy. Petitioner is neither a rape victim nor the foetus is suffering from any congenital defect. As per the medical opinion there is no threat to the petitioner’s life if she is permitted to continue up to full terms of the pregnancy and deliver a child, if she is permitted to terminate the pregnancy that would amounts to taking of life of an unborn child.
Shri Yashpral Rathore, learned counsel for the petitioner fairly concedes that he has not come across any judgment passed by the High Court as well as the Apex Court in which in a similar facts and circumstances the Court has permitted for termination of the pregnancy. In case of Suchita Shrivastava (supra) the petitioner was a victim of rape and attended the age of majority and was capable to give consent. In case of Ms X & Others (supra) the girl was 22 years of age and the pregnancy was 22 weeks old on the date of the petition and her medical condition known as “bilateral renal agenesis and anhydroamnios”, therefore, the Apex Court has permitted for termination of pregnancy beyond period of 22 weeks. The facts of this case are not in dispute. The petitioner at the age of majority had an affair with a boyfriend and became pregnant. She approached the M.G.M. Medical College and M.Y. Hospital for termination of her pregnancy very late. She was thoroughly examined by the team of Doctor and they opined that the pregnancy is 24 weeks; hence, termination is impermissible under the M.T.P. Act.
The petitioner has also undergone an ultra sound and according to the report, the foetal movement and cardiac activity are normal, therefore, neither the petitioner nor the foetus is suffering from any physical abnormality. There is no opinion by the Doctor that termination is required either in order to save the life of pregnant woman or in order to prevent grave injury to the physical and mental health of the pregnant woman or in view of the substantial risk that if the child was born it would suffer from such physical or mental abnormalities as to be seriously handicapped. Vide order dated 17.03.2020, this Court has directed the Medical Superintendent M.Y. Hospital to undergo the fitness examination for termination of pregnancy. The team of four doctors vide letter dated 23.03.2000 gave an opinion that the petitioner is having 8.5 gm. HB and she has been transfused 1 unit of blood. She can be considered for termination of pregnancy after optimization of her Haemoglobin status.
Under the Indian Penal Code abortion is a crime for which the mother as well as the abortionist could be punished except where it had to be induced in order to save the life of the mother. The legislature came up with the Medical Termination of Pregnancy Act, 1971 with aim and object to save the mother’s health, strength and sometime life by way of termination of pregnancy. The legislature has carved out certain exceptions under which the pregnancy can be terminated without attracting any penal consequences, under the IPC or any other law for the time being in force. As per Section 3 of the Act a registered Medical Practitioner shall not be guilty of any offence if pregnancy is terminated by him in accordance with the provisions of the Act. As per Sub Section 2 the pregnancy may be terminated by the registered Medical Practitioner where the pregnancy does not exceed 12 weeks or where the pregnancy exceeds 12 weeks but does not exceed 20 weeks and two registered Medical Practitioners are of the opinion that the continuance of the pregnancy would involve a risk to life of a pregnant woman or a grave injury to her physical or mental health or there is a substantial risk that if the child was born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
In a recent judgment passed by the Apex Court in the case of Z V/s. State of Bihar & Others reported in (2018) 11 SCC 572 the victim was suffering from AIDS desiring to terminate the pregnancy on account of rape committed on her within the statutory limit of 20 weeks of pregnancy. The termination of pregnancy was not carried out within 20 weeks because of the fault on part of the Medical authorities; therefore, the Apex Court has awarded the compensation of Rs.10, 00,000/- in favour of victim. In this case also the Apex Court has held that legislative intention of M.T.P. Act, 1971 and the decision in case of Suchita Shrivastava (supra) prominently emphasis on personal autonomy of a pregnant woman to terminate the pregnancy in terms of Section 3 of the Act. In view of the above discussion, as per the provision of Section 3 admittedly the petitioner is not entitled for termination of pregnancy. The only reason given by the petitioner for termination is that the boyfriend has broken up the relationship with her. In future there may be a possibility of re-association between them but the termination of pregnancy is irreversible process. The petitioner came up with the plea of breaking of relationship after the expiry of 22-24 weeks, had she been approached immediately after initial of the pregnancy the Medical Practitioner would have terminate the pregnancy or this Court would have permitted to terminate the pregnancy, therefore, in the facts and circumstances of the case, no case is made out for termination of pregnancy.
“The views of the authors are personal“