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Poornima Devu Mandavkar vs The Union Of India And Anr on 3 April, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10835 OF 2018

XYZ … Petitioner
Versus
Union of India and ors. … Respondents

Mr. D.J. Khambatta, Sr. Advocate (Amicus Curiae) a/w. Ms
Naira Jejeebhoy and Mr. Pheroze F. Mehta.
Ms Gayatri Singh, Sr. Advocate a/w. Ms Aditi Saxena, Ms
Meenaz Kakalia and Mr. Kranti L.C. for the Petitioner.
Mr. Anil C. Singh, A.S.G. a/w. Mrs. Purnima Awasti a/w Ms
Anusha Pravin Amin and Ms Geetika Gandhi for Respondent
Nos.1 and 3.
Mr.AB. Vagyani, Government Pleader a/w. Mr Y.S. Khochare,
AGP and Mr. P.P. More, AGP and Mr. Udayan Shah for
Respondent No.2.
Mr. Rajiv Chavan, Sr. Advocate a/w. Ms Priyanka Chavan, Ms
Anupama Pawar I/b Mr. D.S. Shingade, Mr. Vinod Mahadik,
Dr.Madhavi Patil and R.N. Cooper Hospital for MCGM.

WITH
WRIT PETITION NO. 9748 OF 2018
XYZ … Petitioner
Versus
Union of India and ors. … Respondents

Ms Gayatri Singh, Sr. Advocate a/w. Ms Aditi Saxena, Ms
Meenaz Kakalia and Mr. Kranti L.C. for the Petitioner.
Mr.AB. Vagyani, Government Pleader a/w. Mr Y.S. Khochare,
AGP and Mr. P.P. More, AGP and Mr. Udayan Shah for
Respondent No.2.

WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3172 OF 2018

XYZ … Petitioner
Versus
Union of India and anr. … Respondents
Mr. Kuldeep U. Nikam for the Petitioner.

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Ms Poornima Awasthi for Respondent No.1 – UOI.
Ms P.H. Kantharia,Government Pleader a/w. Ms Deepali
Patankar, Assistant to G.P. for Respondent No.2- State.
…..

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

RESERVED ON : 2nd NOVEMBER 2018.

PRONOUNCED ON : 3rd APRIL, 2019.

JUDGMENT [Per M.S. SONAK, J.]

1] In all these matters, we have heard Mr. D.J. Khambatta,
learned Senior Advocate who was appointed as Amicus Curiae
in the matter. In this, he was ably assisted by learned counsel
Ms Naira Jejeebhoy and Mr. Pheroze F. Mehta.

2] We have also heard Ms Gayatri Singh, learned Senior
Advocate along with Ms Aditi Saxena, Ms Meenaz Kakalia and
Mr. Kranti L.C. for the Petitioner in Writ Petition No. 10835 of
2018 and Writ Petition No. 9748 of 2018. Similarly, we have
heard Mr.Kuldeep U. Nikam, learned counsel for the petitioner
in Original Side Writ Petition (L) No. 3172 of 2018. In the said
petition, Ms Flavia Agnes also appeared on behalf of legal
Guardian-mother.

3] We have also heard Mr. Anil C. Singh, learned Assistant
Solicitor General along with Mrs. Purnima Awasti, Ms Anusha
Pravin Amin and Ms Geetika Gandhi for the Union of India in
Writ Petition No. 10835 of 2018. We have also heard Mr.AB.
Vagyani, learned Government Pleader along with Mr Y.S.
Khochare, AGP and Mr. P.P. More, AGP and Mr. Udayan Shah

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for the State in Writ Petition No. 10835 of 2018 and Writ
Petition No. 9748 of 2018. Similarly, we have heard Ms P.H.
Kantharia, learned Government Pleader along with Ms Deepali
Patankar, Assistant to G.P. for the State in original side Writ
Petition (L) No.3172 of 2018.

4] We have also heard Mr. Rajiv Chavan, learned Senior
Advocate along with Ms Priyanka Chavan, Ms Anupama Pawar
for the respondent – MCGM.

5] In all these petitions, the petitioners had basically applied
for appropriate orders to permit them to medically terminate
pregnancies, even though the length of their respective
pregnancies had exceeded 20 weeks. In two of the petitions, i.e.,
Writ Petition No. 10835 of 2018 and Writ Petition No. 9748 of
2018, declaration was sought to declare section 3(2)(b) of the
Medical Termination of Pregnancy Act, 1971 (MTP Act) to the
limited extent that it stipulates a ceiling of 20 weeks for an
abortion to be done under section 3 of the MTP Act is ultra vires
Article 14 and 21 of the Constitution of India. However, this
relief was not ultimately pressed, because the petitioners in the
said petitions had also applied for a declaration that their case
was fit for exercise of jurisdiction under section 5 of the MTP
Act, which, under certain circumstances, permits the medical
termination of pregnancy, regardless of the ceiling of 20 weeks
as prescribed in section 3 of the MTP Act.

6] Since, the consideration of reliefs sought for by the
petitioners could not brook any delay, by various orders, we

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directed the constitution of Medical Boards comprising experts
in various fields such as Gynecology, Medicine, Radiodiagnosis,
Pediatric, Psychiatry etc. on emergent basis, in order to
examine the petitioners and submit reports to this Court. In all
these petitions, relying upon the reports and upon decisions of
the Supreme Court in similar cases, we permitted the
Petitioners to undertake medical termination of their
pregnancies even though the length of the pregnancies had
exceeded twenty weeks.

7] However, these Petitions were kept pending since certain
important issues were raised, which in our opinion required
detailed consideration. This is because several such petitions
are being filed in this Court seeking urgent reliefs. In matters of
this nature, every passing day produces irretrievable changes in
the status of the petitioners and fetus which they carry. These
changes invariably have a direct impact upon the reliefs applied
for in such petitions. We therefore, appointed
Mr.D.J.Khambatta, learned Senior Advocate of this Court to
assist us as an Amicus Curiae in the matters and heard all the
learned counsel representing various stake holders in the
context of some important issues which arise in such matters.

8] According to us, the following issues arise in these
petitions.

(A) Whether and in what circumstances can this Court,
in exercise of its jurisdiction under Article 226 of the
Constitution of India, permit the Petitioners to medically
terminate pregnancies, the length of which exceed 20

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weeks, which is the ceiling prescribed in section 3 (2) of
the MTP Act ?

(B) If permission as aforesaid, can and is to be granted,
then what should be procedure and safeguards that will
have to be adopted in such matters, particularly, with
regard to:

(i) Constitution of medical boards to expeditiously
examine such petitioners;

(ii) The hospitals/ clinics where such procedures
may be permitted to be safely undertaken.

(C) What is the legal status of a child born alive, despite
attempts at medical termination of pregnancy – the
procedure to be followed in such cases – and the
responsibility of the State in such matters?

9] The statutory regime in such matters is governed by the
MTP Act which entered in force on 1 st April, 1972. This is an Act
to provide for the termination of certain pregnancies by
registered medical practitioners and for matters connected
therewith or incidental thereto.

10] The Statement of Objects and Reasons (S.O.R.) refers to
the provisions regarding termination of pregnancy under the
Indian Penal Code, 1860 (IPC) enacted about a century prior to
MTP Act entering into force. In keeping with the British Law on
the subject, the IPC had criminalized the medical termination of
pregnancy (abortion). The mother as well as abortionist could
be punished, except where abortion had to be induced in order
to save the life of the mother.

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11] The S.O.R. notes that the strict provisions of IPC were

observed in breach in very large number of cases all over the
country. Furthermore, most of these mothers were married
women and there was no particular necessity to conceal their
pregnancies. The S.O.R. then takes note of the fact that in
recent years, health services had expanded and hospitals were
availed of to the fullest extent by all classes of society and yet,
Doctors were often been confronted by gravely ill or dying
pregnant women whose pregnant uterus had been tampered
with, in order to cause abortion. The S.O.R notes that this was
avoidable wastage of the mother’s health, strength and
sometimes even life.

12] The S.O.R. then proceeds to state that the proposed
measures in the MTP Act, seeking to liberalize certain existing
provisions relating to termination of pregnancy have been
conceived, primarily, for the following three purposes:

(i) As a health measure – when there is danger to the
life or risk to physical or mental health of the woman;

(ii) On humanitarian grounds – such as when pregnancy
arises from a sex crime like rape or intercourse with a
lunatic woman, etc.; and

(iii) Eugenic grounds – where there is substantial risk
that the child, if born, would suffer from deformities and
diseases.

13] The MTP Act was amended in 2002 by Amendment Act
No. 64 of 2002. Again, the Statement of Objects and Reasons to
this Amendment Act refers to how MTP Act legalised
termination of pregnancy on various social socio-medical
grounds and how the MTP Act was aimed at eliminating
abortion by untrained persons and in unhygienic conditions,

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thus reducing maternal morbidity and mortality. The Statement
of Objects and Reasons to the Amendment Act then refers to
the expert group which was constituted to review the provisions
of MTP Act with a view to making it more relevant to the
present environment. There is reference to suggestions from the
National Commission for Women, in order to remove provisions
discriminatory to women.

14] Since, the S.O.R. to the MTP Act makes reference to the
provisions regarding termination of pregnancy in the IPC, brief
reference, to such provisions becomes necessary particularly to
the appreciation of background in which the provisions of MTP
came to be enacted and entered into force. These provisions are
mainly contained in Sections 312 to 318 of the IPC, which, as
noted earlier, was a law enacted in the year 1860.

15] Section 312 of the IPC, punishes those who cause
miscarriage in a pregnant woman. Even if the pregnant woman
causes herself to miscarry, the same is punishable. Enhanced
punishment is prescribed if miscarriage is caused after
quickening (perception by the mother that movement of the
fetus has started). Enhanced punishment is also prescribed
where the offence is committed without consent of the woman.
Section 314 of IPC deals with the offence of causing death while
causing miscarriage.

16] Section 315 of the IPC punishes those who intentionally
prevent the child being born alive or causing it to die after its
birth. Section 316 of the IPC provides that if a quick unborn

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child dies as a result of an act amounting to culpable homicide,
the offender can be punished under this section.

17] Section 317 of the IPC punishes father or mother of a
child under the age of twelve years, or persons having the care
of such child if they abandon such child. Section 318 of the IPC
punishes those who secretly bury or otherwise dispose of the
dead body of a child whether such child dies before or after or
during its birth or who intentionally conceal or endeavour to
conceal the birth of such child.

18] However, sections 312 and 315 of the IPC exempt and
decriminalize miscarriage, if undertaken in good faith for the
purpose of saving the life of the mother. This is based on the
logic that the fetus cannot have an independent existence
outside the womb of the mother, and the life of the mother who
independently exists, is entitled to greater protection.

19] The MTP Act, as noted earlier, was an act to provide for
the termination of certain pregnancies by registered medical
practitioners and for matters connected therewith or incidental
thereto. After the MTP entered into force from 1 st April 1972, the
provisions of IPC referred to above, to a great extent become
subservient to the special law codified in MTP Act.

20] Section 2 of the MTP Act provides for certain definitions of
expressions used in the MTP Act. Since the MTP Act
contemplates termination of pregnancies by “registered medical
practitioner”, section 2(d) defines this expression as meaning a

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medical practitioner who possesses any recognized medical
qualification as defined in clause (h) of section 2 of the Indian
Medical Council Act, 1956, whose name has been entered in a
State Medical Register and who has such experience or training
in gynecology and obstetrics as may be prescribed by rules
made under the MTP Act.

21] The definition in section 2(d)of the MTP Act will have to be
read in conjunction with Rule 4 of the MTP Rules 2003 which
provides for the experience and training which ‘registered
medical practitioner’ must possess before she can undertake
termination of pregnancies under the MTP Act.

22] Rule 4 of the MTP Rules provides that for purposes of
section 2 (d) of the MTP Act, registered medical practitioner
shall have one or more of the following experience or training in
gynecology and obstetrics, namely:

(a) In the case of medical practitioner, who was
registered in a State Medical Register immediately before the
commencement of the Act, experience in the practice of
gynaecology and obstetrics for a period of not less than
three years;

b) in the case of a medical practitioner, who is
registered in a State Medical Register:-

(i) If he has completed six months of house
surgery in gynecology and obstetrics; or

(ii) unless the following facilities are provided
therein, if he had experience at any hospital for a period of
not less than one year in the practice of obstetrics and
gynecology; or

c) if he has assisted a registered medical
practitioner in the performance of twenty-five cases of
medical termination of pregnancy of which at least five have

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been performed independently, in a hospital established or
maintained, or a training institute approved for this purpose
by the Government.

(i) This training would enable the Registered
Medical Practitioner (RMP) to do only 1 st Trimester
terminations (up to 12 weeks of gestation);

(ii) For terminations up to twenty weeks the
experience or training as prescribed under sub-rules (a), (b)
and (d) shall apply.

(d) in case of a medical practitioner who has been
registered in a State Medical Register and who holds a post-
graduate degree or diploma in gynecology and obstetrics,
the experience or training gained during the course of such
degree or diploma.

23] Thus, the immunity from prosecution under the above
referred provisions of IPC will apply only to registered medical
practitioners as defined under section 2 (d) of the MTP Act who
possess experience and training as prescribed under Rule 4 of
the MTP Rules, 2003. In other words, the termination of
pregnancy by any person other than registered medical
practitioner is still an offence punishable under the provisions
of the IPC. In fact, the MTP Act was amended in the year 2002
and punishment for termination of pregnancy by any person
other than “registered medical practitioner” came to be
enhanced with rigorous imprisonment for a term which shall
not be less than two years, but which may extend to seven
years under the IPC and the corresponding provisions of IPC to
that extent, were to stand modified.

24] In Surendra Chauhan vs. State of M.P. – AIR 2000 SC
1436, the Supreme Court upheld the conviction of a Doctor,

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who had a degree in Medicine, but not the experience and
training in the relevant discipline of Medicine for undertaking
abortions. In particular, the Doctor in question did not possess
the experience and training as prescribed in Rule 4 of the MTP
Rules.

25] Section 3 of the MTP Act deals with the important issue
‘when pregnancies may be terminated by registered medical
practitioners’.

26] Section 3(1) of the MTP Act provides, that notwithstanding
anything contained in the Indian Penal Code (45 of 1860), a
registered medical practitioner shall not be guilty of any offence
under that Code or under any other law for the time being in
force, if any pregnancy is terminated by him in accordance with
the provisions of the MTP Act.

27] Section 3 (2) of the MTP Act provides, that subject to the
provisions of sub-section (4), a pregnancy may be terminated by
a registered medical practitioner,-

a) where the length of the pregnancy does not exceed
twelve weeks, if such medical practitioner is, or

(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,-

(i) the continuance of the pregnancy would involve
a risk to the life of the pregnant woman or of grave injury

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to her physical or mental health ; or

(ii) 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.

Explanation I.- Where any, pregnancy is alleged by the
pregnant woman to have been caused by rape, the anguish
caused by such pregnancy shall be presumed to constitute a
grave injury to the mental health of the pregnant woman.

Explanation II.-Where any pregnancy occurs as a result of
failure of any device or method used by any married woman or
her husband for the purpose of limiting the number of children,
the anguish caused by such unwanted pregnancy may be
presumed to constitute a grave injury to the mental health of the
pregnant woman. (emphasis supplied)

28] Section 3 (3) of the MTP Act provides, that in determining
whether the continuance of pregnancy would involve such risk
of injury to the health as is mentioned in sub-section (2),
account may be taken of the pregnant woman’s actual or
reasonable foreseeable environment.

29] Section 3 (4) (a) of the MTP Act provides, that no
pregnancy of a woman, who has not attained the age of
eighteen years, or, who, having attained the age of eighteen
years, is a [mentally ill person], shall be terminated except with
the consent in writing of her guardian. Section 3 (4)(b) provides,
that save as otherwise provided in clause (a), no pregnancy

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shall be terminated except with the consent of the pregnant
woman.

30] Section 4 of the MTP Act is concerned with the place
where pregnancy may be terminated. This section provides, that
no termination of pregnancy shall be made in accordance with
the MTP Act at any place other than –

(a) a hospital established or maintained by Government,
or

(b) a place for the time being approved for the purpose of
this Act by Government or a District Level Committee
constituted by that Government with the Chief Medical
Officer or District Health Officer as the Chairperson of the
said Committee:

Provided that the District Level Committee shall
consist of not less than three and not more than five
members including the Chairperson, as the Government
may specify from time to time.

31] Section 4 of the MTP Act will have to be read and
construed in conjunction with Rule 5 of the MTP Rules. This
Rule provides that no place shall be approved under clause (b)
of section 4,-

(i) unless the Government is satisfied that termination of
pregnancies may be done therein under safe and hygienic
conditions; and

(ii) unless the following facilities are provided therein,
namely-

in case of first trimester, that is, up to 12 weeks of
pregnancy:-

a gynecology examination/labour table, resuscitation
and sterilization equipment, drugs and parental fluid, back
up facilities for treatment of shock and facilities for
transportation ; and
in case of second trimester, that is up to 20 weeks of

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pregnancy:-

(a) an operation table and instruments for
performing abdominal or gynecological surgery;

(b) anesthetic equipment, resuscitation equipment
and sterilization equipment;

(c) drugs and parental fluids for emergency use,
notified by Government of India from time to time.

Explanation.- In the case of termination of early
pregnancy up to seven weeks using RU-486 # with
Misoprostol, the same may be prescribed by a Registered
Medical Practitioner (RMP) as defined under clause (d) of
section 2 of the Act and rule 4 of the MTP Rules, at his
clinic, provided such a Registered Medical Practitioner has
access to a place approved under section 4 of the MTP Act,
1971 read with MTP Amendment Act, 2002 and rules 5 of
the MTP Rules. For the purpose of access, the RMP should
display a certificate to this effect from the owner of the
approved place.

32] Thus, as per the statutory regime of MTP Act, in order
that medical practitioners are immunised from prosecution
under the provisions of IPC, medical termination of pregnancies
have to be undertaken only by registered medical practitioner as
defined under section 2(d) of the MTP Act and further, such
medical termination of pregnancies have to be made either at
hospitals established or maintained by the Government or at
places approved under the MTP Act in terms of section 4(d) of
the MTP Act, which is to be read with Rule 5 of the MTP Rules.

33] In Surendra Chauhan (supra), the Supreme Court
observed that conducting of abortions without proper facility
and not keeping clinic registered, was itself a punishable crime,

# RU-486 eliminates the element of human skill involved in an abortion and avoids surgical
intervention. The abortion “pill” is actually two pills, taken on two different days. The first tablet,
RU486 or Mifepristone, acts by blocking progesterone, a hormone essential in pregnancy, and
hence kills the fetus. The second pill, Misoprostol, is taken three days later. This causes uterine
contractions that expel the fetus.

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even though, no health hazard may have actually ensued.
Accordingly, since, the clinic in question was not an ‘approved
place’ in terms of section 4 of the MTP Act, the Doctor was
liable for conviction under section 314 of the IPC.

34] Section 5 of the MTP Act deals with the circumstances in
which the provisions of sections 3 and 4 of the MTP Act will not
apply.

35] Section 5 (1) of the MTP Act provides, that the provisions
of section 4, and so much of the provisions of sub-section (2) to
section 3 of the MTP Act 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 the 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.

36] Section 5 (2) of the MTP Act, as amended in 2002,
provides, that notwithstanding anything contained in the
Indian Penal Code, the termination of pregnancy by a person
who is not a registered medical practitioner shall be an offence
punishable with rigorous imprisonment for a term which shall
not be less than two years but which may extend to seven years
under that code, and that Code shall, to this extent, stand
modified.

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37] Section 5 (3) of the MTP Act provides, that whoever

terminates any pregnancy in a place other than that mentioned
in section 4, shall be punishable with rigorous imprisonment
for a term which shall not be less than two years but which
may extend to seven years.

38] Section 5(4) of the MTP Act provides, that any person
being owner of a place which is not approved under clause (b)
of section 4 shall be punishable with rigorous imprisonment for
a term which shall not be less than two years but which may
extend to seven years.

39] The first explanation to section 5 of the MTP Act provides,
that for the purpose of this section, the expression ‘owner’ in
relation to a place means any person who is the administrative
head or otherwise responsible for the working or maintenance
of a hospital or place, by whatever name called, where the
pregnancy may be terminated under the MTP Act.

40] The second explanation to section 5 of the MTP Act
provides, that for the purpose of this section, so much of the
provisions of clause (d) of section 2 of the MTP Act as relate to
the possession, by the registered medical practitioner, of
experience or training in gynaecology or obstetrics shall not
apply.

41] Thus, though section 5 of the MTP Act is in the nature of
an exception to the provisions in sections 3 and 4 of the MTP
Act, the exceptions, do not apply to all situations. The exception

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applies only in relation to the provisions of section 4 and so
much of the provisions of section 3 (2) as relate to the length of
pregnancy and the opinion of not less than two registered
medical practitioners.

42] The exception applies only to a case where registered
medical practitioner is of the opinion, formed in good faith, that
the termination of such pregnancy is immediately necessary to
save the life of the pregnant woman. The exception will not
extend to termination of pregnancy by a person, who is not a
registered medical practitioner. The second explanation to
section 5 of the MTP Act however, exempts such registered
medical practitioner from the possession of experience or
training in gynaecology and obstetrics though otherwise
prescribed in clause (d) of section 2 of the MTP Act.

43] Section 6 of the MTP Act empowers the Central
Government to make rules to carry out the provisions of the
MTP Act. Section 7 of the MTP Act empowers the State
Government to make regulations on the aspects set out in sub-
clauses (a),(b) and (c) of clause (1). Section 7 (3) of the MTP Act
provides that any person who willfully contravenes or willfully
fails to comply with the requirements of any regulation made
under sub-section (1) shall be liable to be punished with fine
which may extend to one thousand rupees. Section 8 of the
MTP Act finally provides that no suit or other legal proceedings
shall lie against any registered medical practitioner for any
damage caused or likely to be caused by anything which is in
good faith done or intended to be done under the MTP Act.

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44] From the analysis of the aforesaid provisions of the MTP

Act and the MTP Rules, the following position emerges:

(a) The provisions of IPC relating to termination of
pregnancy or abortion are largely subservient to the
provisions of MTP Act. This is clear from the non-obstante
clause with which the provisions of section 3 of the MTP
Act commence;

(b) As a general rule, medical termination of
pregnancies may be undertaken only by registered
medical practitioner as defined under section 2 (d) of the
MTP Act who possess experience and training as
prescribed in Rule 4 of the MTP Rules;

(c) Section 3(2) of the MTP Act provides, that a
pregnancy may be terminated by a registered medical
practitioner, where the length of pregnancy does not
exceed 12 weeks, if such medical practitioner is, or where
the length of pregnancy exceeds 12 weeks but does not
exceed 20 weeks, if not less than two registered medical
practitioners are, of opinion, formed in good faith, that :

(i) The continuance of pregnancy would involve
risk to the life of the pregnant woman; or

(ii) The continuance of pregnancy would involve
grave injury to the physical health of the pregnant
woman; or

(iii) The continuance of pregnancy would
involve grave injury to the mental health of the
pregnant woman; or

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(iv) There is substantial risk that if the child were
born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped.

(d) The first explanation to section 3(2) makes it clear
that where pregnancy is alleged by the pregnant woman
to have been caused by rape, the anguish caused by such
pregnancy shall be presumed to constitute a grave injury
to the mental health of the pregnant woman.

(e) The second explanation to section 3(2) of the MTP
Act provides that where any pregnancy occurs as a result
of failure of any device or method used by any married
woman or her husband for the purpose of limiting the
number of children, the anguish caused by such
unwanted pregnancy may be presumed to constitute a
grave injury to the mental health of the pregnant woman.

(f) Section 3 (3) of the MTP Act provides, that in
determining whether the continuance of pregnancy would
involve such risk of injury to the health as is mentioned in
sub-section (2) of section 3, account may be taken of the
pregnant woman's 'actual or reasonable foreseeable
environment'.

(g) Section 3 (4) (a) of the MTP Act provides, that no
pregnancy of a woman, who has not attained the age of
eighteen years, or, who, having attained the age of
eighteen years, is a mentally ill person, shall be
terminated, except with the consent in writing of her

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guardian. Section 3 (4)(b) provides that save as otherwise
provided in clause (a), no pregnancy shall be terminated
except with the consent of the pregnant woman.

(h) Even to situations to which section 3(2) of the MTP
Act applies, the medical termination of pregnancies will
have to be undertaken only by registered medical
practitioners as defined under section 2 (d) of the MTP
Act. Further, such medical termination of pregnancy will
have to be undertaken at the places specified under
section 4 of the MTP Act.

(i) Section 4 (a) of the MTP Act refers to hospital
established or maintained by the Government and section
4 (b) refers to a place for the time being approved for the
purpose of the MTP Act by the Government or a District
Level Committee constituted by that Government with the
Chief Medical Officer or District Health Officer as the
Chairperson of the said Committee. The District Level
Committee shall consist of not less than three and not
more than five members including the Chairperson, as the
Government may specify from time to time.

(j) Section 5 of the MTP Act, is in the nature of an
exception to the provision of sections 3 and 4 of the MTP
Act. However, the exceptions are not blanket and relate
only to the following matters:

(i) The requirement that length of pregnancy must
not exceed 20 weeks {Section 3(2)(b)};

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(ii) The requirement of opinion by two registered
medical practitioners {Section 3 (2)(b)};

(iii) The places at which the registered medical
practitioners may undertake MTP {Section 4}.

(iv) The provisions in section 2 (d) of the MTP Act
insofar as they relate to possession, by registered
medical practitioner of experience or training in
gynaecology and obstetrics {Explanation 2 to S.5}.

(k) The aforesaid means that medical termination of
pregnancy which exceeds 20 weeks can be undertaken
only by registered medical practitioner in a case where he
is of the opinion, formed in good faith, that the
termination of such pregnancy is immediately necessary
to save the life of the pregnant woman.

45] The plain reading of the provisions in section 5 of the MTP
Act might suggest that the exception carved out in section 5 of
the MTP Act will apply only where termination of pregnancy is
immediately necessary to save the "life" of the pregnant woman.
However, the crucial issue which arises relates to the correct
meaning of the expression "life" as it appears in section 5 of the
MTP Act. Is the expression "life" to be construed narrowly as
merely antithetic to the expression "death"? Is the expression
"to save the life of the pregnant woman" to be interpreted as "to
prevent the death of the pregnant woman"? Is the expression
"life" to be interpreted as "existence" or "mere animal existence"
or "physical survival" ? Or is the expression "life" to be liberally

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construed so as to comprehend not only physical existence but
also quality of life as is understood in its richness and fullness
consistent with human dignity ?

46] If the expression "life" in section 5 of the MTP Act is to be
construed narrowly as antithesis to death or physical survival
or mere animal existence, then, it is perhaps possible to say
that the exception carved out in section 5 of the MTP Act will
apply only to termination of pregnancies to prevent the death of
the pregnant woman. This would mean that the exception in
section 5 of the MTP Act will operate only to cases where the
registered medical practitioner forms an opinion in good faith
that unless the pregnancy is terminated, the mother might die.

47] Such narrow construction would then mean that the
exception in section 5 of the MTP Act will not operate even to
contingencies where registered medical practitioners opine that
the continuance of pregnancy involves grave injury to the
physical health (not life threatening) or to the mental health of
the mother. The exception will then not apply to cases where
pregnancy is alleged to have been caused by rape. The
exception will then not apply even where medical opinion
establishes that there is substantial risk that if the child were
born, it would suffer from such physical and mental
abnormalities as to be seriously handicapped. In all such cases,
the pregnant mother, notwithstanding the physical and mental
trauma, notwithstanding the futility arising out of almost
certain knowledge that the child will have no extra uterine
survival or would suffer from serious physical and mental

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handicaps, will be forced to continue her pregnancy to its full
term. The moot question which therefore, arises is whether the
expression "life" in section 5 of the MTP Act must be construed
narrowly by adopting the principle of literal interpretation or
liberally by adopting the principle of purposive interpretation?

48] To begin with, reference can be usefully made to several
decisions rendered by the Supreme Court in which medical
termination of pregnancy was permitted beyond the ceiling
period of 20 weeks as prescribed in section 3 (2) of the MTP Act
where the continuance of pregnancy involved grave injury to the
mental health of the pregnant woman or where there was
substantial risk that if the child were born, it would suffer from
such physical or mental abnormalities as to be seriously
handicapped. This means that the principle of narrow or literal
construction was not adopted when it came to interpretation of
the provisions in section 5 of the MTP Act by the Supreme
Court in several cases. Rather, the principle of liberal or
purposive interpretation was adopted.

49] In Tapasya Umesh Pisal vs. Union of India - (2018)
12 SCC 57, the Supreme Court in interests of justice,
permitted the petitioner to undergo MTP, which was in its
twenty fourth week noting that "but for the time period, it
appears that the case falls under section 3 (2) (b) of the MTP
Act.". The Medical Board, in the said case, had opined that the
baby if delivered alive, would have to undergo several surgeries
after birth which is associated with a high morbidity and
mortality. The Supreme Court on basis of such material held

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that it would be difficult to refuse the permission to medically
terminate pregnancy, as it was certain that the fetus if allowed
to born, would have a limited life span with serious handicaps
which could not be avoided.

50] In Sonali Kiran Gaikwad vs. Union of India - Writ
Petition © No. 928 of 2017 decided on 9th October 2017,
the Supreme Court, had before it a case where pregnancy had
advanced to twenty eight weeks. The Medical Board, which was
constituted, examined the mother and indicated serious
abnormalities of the fetus, a substantial risk of serious physical
handicap and high chance of morbidity and mortality in the
new born. Although, the mother's life was not in any danger,
as report indicated that termination was no more hazardous
than spontaneous delivery at term, the Supreme Court held
that "..... continuing pregnancy will cause more mental anguish
to the petitioners". The Supreme Court, then referred to its
decision in Meera Santosh Pal Vs. Union of India - (2017) 3
SCC 462 and permitted the petitioners to undergo medical
termination of their pregnancies.

51] In X and ors. vs. Union of India and ors. - (2017) 3
SCC 458, the Supreme Court was concerned with a pregnancy
which had advanced into the 24 th week. The Medical Board
which was constituted, had opined that the condition of fetus
was incompatible with extra uterine life, i.e., outside the womb
because prolonged absence of amniotic fluid results in
pulmonary hypoplasia leading to severe respiratory

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insufficiency at birth. This was mainly a case where there was
substantial risk that if the child were born, it would suffer from
such physical or mental abnormalities as to be seriously
handicapped. Still, the Supreme Court, after referring to the
dictum in Suchita Srivastava vs. Chandigarh
Administration - 2009 (9) SCC 1 that a woman's right to
make reproductive choices is also a dimension of 'personal
liberty' as understood under Article 21 of the Constitution,
permitted the pregnant mother to undertake the termination of
pregnancy by observing thus:

"9. Though the current pregnancy of the petitioner is
about 24 weeks and endangers the life and the death of
the foetus outside the womb is inevitable, we consider it
appropriate to permit the petitioner to undergo termination
of her pregnancy under the provisions of the Medical
Termination of Pregnancy Act, 1971. We order
accordingly."

52] In A vs. Union of India - (2018) 14 SCC 75, the
Supreme Court was concerned with pregnancy which had
advanced to the 26th or the 27th week. The antenatal
ultrasonography had revealed a single live intrauterine foetus of
26 weeks +/- 7 to 10 days. There was complete absence of
foetal brain and skull vault suggestive of anencephaly. The
Cardiothoracic Surgeon has reported that the foetus has
anencephaly and polyhydramnios. He further stated that this
anomaly was not compatible with life. The Paediatrician has
reported that the survival rate post delivery was less than 10 to
20%. He further stated that majority of those who may survive,
have serious form of morbidity and succumb within 24 to 48

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hours of birth. The Medical Board/Committee, upon evaluation,
had reported 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.

53] In the aforesaid circumstances, the Supreme Court
permitted the termination of pregnancy which had advanced in
the 26th or 27th week, though, there was no danger to the
petitioner's life. The termination was permitted on the ground
that the condition of fetus was not compatible with life, which is
the contingency referred to in clause (ii) of section 3 (2)(b) of the
MTP Act. The termination was also permitted because the
continuance of pregnancy posed 'severe mental injury' to the
petitioner, which is a contingency referred to in clause (i) of
section 3 (2)(b) of the MTP Act. In effect therefore, the Supreme
Court, read into the provisions of section 5 of the MTP Act, the
contingencies referred to in clauses (i) and (ii) of section 3 (2)(b)
of the MTP Act.

54] In Mamta Verma vs. Union of India and ors. - (2018)
14 SCC 289, the Supreme Court was concerned with a
pregnancy which had advanced into the 25th week. The Medical
Board had opined that the "patient wants the pregnancy to be
terminated as the foetus is not likely to survive. It is causing
immense mental agony to her. After going through the
ultrasonography reports, Committee is of opinion that there is no
point to continue the pregnancy as foetus has anencephaly

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which is non-compatible with life and continuation of pregnancy
shall pose severe mental injury to her."

55] The Supreme Court, in the aforesaid facts, permitted
medical termination of pregnancy by observing thus:

"5. We have been informed that the foetus is without a
skull and would, therefore, not be in a position to survive. It
is also submitted that the petitioner understands that her
foetus is abnormal and the risk of foetal mortality is high.
She also has the support of her husband in her decision
making.

6. Upon evaluation of the petitioner, the aforesaid Medical
Board has concluded that her current pregnancy is of 25
weeks and 1 day. The condition of the foetus is not com-
patible with life. The medical evidence clearly suggests
that there is no point in allowing the pregnancy to run its
full course since the foetus would not be able to survive
outside the uterus without a skull.

7. Importantly, it is reported 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.

8. In the circumstances, we consider it appropriate in
the interests of justice and particularly, to permit the peti-
tioner to undergo medical termination of her pregnancy un-
der the provisions of the Medical Termination of Pregnancy
Act, 1971. Mr Ranjit Kumar, learned Solicitor General ap-
pearing for the respondents, has not opposed the peti-
tioner's prayer on any ground, legal or medical. We order
accordingly".

56] In Mamta Verma (supra), there was no danger to the life of
the pregnant mother. Yet, termination of pregnancy was
permitted primarily on the ground that the fetus was not likely

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to survive and this was causing severe mental injury to the
pregnant mother. This means that termination of pregnancy
was permitted under section 5 of the MTP Act by reading into
the provisions of section 5 of the MTP Act, the contingencies
referred to in clauses (i) and (ii) of section 3 (2)(b) of the MTP
Act.

57] In Sarmishta Chakrabortty and anr vs. Union of
India and ors - (2018) 13 SCC 339, the Supreme Court was
concerned with a pregnancy which had advanced beyond 20
weeks. The Medical Board had opined that the pregnant mother
is at the threat of severe mental injury, if the pregnancy is
continued. It had also opined that the child, if born alive, needs
complex cardiac corrective surgery stage by stage after birth. But
there is high mortality and morbidity at every step of this staged
surgeries.

58] The Supreme Court, in the aforesaid facts, permitted
medical termination of pregnancy by observing thus:

"11. In the instant case, as the report of the Medical Board
which we have produced, in entirety, clearly reveals that
the mother shall suffer mental injury if the pregnancy is
continued and there will be multiple problems if the child is
born alive. That apart, the Medical Board has categorically
arrived at a conclusion that in a special case of this nature,
the pregnancy should be allowed to be terminated after 20
weeks.

12. In Suchita Srivastava v. State (UT of Chandigarh), the
Court has expressed the view that the right of a woman to
have reproductive choice is an insegregable part of her per-
sonal liberty, as envisaged under Article 21 of the Constitu-

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tion. She has a sacrosanct right to have her bodily in-
tegrity. The case at hand, as we find, unless the pregnancy
is allowed to be terminated, the life of the mother as well
as that of the baby to be born will be in great danger. Such
a situation cannot be countenanced in Court."

59] In Meera Santosh Pal (supra), the Supreme Court
permitted the MTP of about 24 weeks based upon medical
prognosis that fetus was without a skull and would not be able
to survive outside the uterus. The Medical Board specially
constituted for the purpose had opined that continuation of
pregnancy could gravely endanger the physical and mental
health of the mother. In such circumstances, the Supreme
Court by observing that the crucial consideration was whether
'right to bodily integrity calls for a permission to allow her to
termination her pregnancy' permitted the termination of
pregnancy though it had advanced to the 24th week.

60] In Suchita Srivastava (supra), the petitioner was a
mentally retarded rape victim whose pregnancy had advanced
into the 19th week. The Supreme Court did not permit the
termination of pregnancy because the petitioner was not held to
be 'mentally ill' and the petitioner had not consented to the
termination of her pregnancy. However, the Supreme Court
held that there is no doubt that a woman's right to make
reproductive choice is also a dimension of 'personal liberty' as
understood Article 21 of the Constitution of India. It is
important to recognize that reproductive choices can be
exercised to procreate as well as to abstain from procreating.
The crucial consideration is that a woman's right to privacy,

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dignity and bodily integrity should be respected. This means
that there should be no restriction whatsoever on the exercise
of reproductive choices such as a woman's right to refuse
participation in sexual activity or alternatively the insistence on
use of contraceptive methods. Furthermore, women are also
free to choose birth control methods such as undergoing
sterilisation procedures. Taken to their logical conclusion,
reproductive rights include a woman's entitlement to carry a
pregnancy to its full term, to give birth and to subsequently
raise children.

61] From the conspectus of the decisions of the Supreme
Court, it is quite clear that the Supreme Court has construed
the provisions in section 5 of the MTP Act, not narrowly by
adopting the principle of literal construction but liberally by
adopting the principle of purposive construction. The Supreme
Court has consistently permitted medical termination of
pregnancies which had exceeded the ceiling of 20 weeks where
medical opinion established that continuance of pregnancy
involved grave injury to the mental health of the pregnant
woman or where there was substantial risk that if the child
were born, it would suffer from such physical or mental
abnormalities as to be seriously handicapped. This was despite
the fact that there was no immediate danger to the life of the
pregnant mother. In effect therefore, the Supreme Court read
into the provisions of section 5 of the MTP Act the contingencies
referred to in clause (i) and (ii) of section 3 (2)(b) of MTP Act, no
doubt, upon satisfaction that the risk involved in the

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termination of such pregnancies was not greater than the risk
involved in spontaneous delivery at the end of the full term.

62] However, since, in Tapasya Pisal (supra), the Supreme
Court in the concluding portion of its decision had used the
expression "in the interests of justice" , it was suggested at Bar,
that this was probably a case of the Supreme Court exercising
its powers under Article 142 of the Constitution of India, which
powers undoubtedly, this Court does not possess. Therefore, it
was suggested that the decision in Tapasya Pisal (supra) as also
the other decisions cannot be regarded as binding precedents,
particularly, when it comes to this Court exercising its
jurisdiction under Article 226 of the Constitution of India.

63] According to us, there is no basis for such a doubt to
prevail. In the first place, none of the decisions, including the
decision in Tapasya Pisal (supra) make any specific reference to
the exercise of powers under Article 142 of the Constitution.
Secondly, the context of the decisions, also does not indicate
that powers under Article 142 of the Constitution were being
exercised. Thirdly, in Sonali Gaikwad (supra) the Supreme
Court, in its concluding paragraph issued the following
significant clarification.

"However, we make it clear that any future such cases can
be filed in the respective High Courts having territorial
jurisdiction."

64] At least from clarification issued by the Supreme Court in
the concluding portion of its Sonali Gaikwad (supra), it is clear

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that the Supreme Court, did not intend that the permissions to
medically terminate pregnancy, in cases where the length of the
pregnancy had exceeded twenty weeks and where the
termination of such pregnancies was not immediately necessary
to save life of the pregnant woman, could be granted only by the
Supreme Court in the exercise of its powers under Article 142
of the Constitution of India and not by the respective High
Courts having territorial jurisdiction. Obviously, if the Supreme
Court was of the opinion that the relief in 'such cases' can be
granted only under Article 142 of Constitution of India, then,
there would be no question of the Supreme Court itself
clarifying that in future such cases can be filed in the respective
High Courts having territorial jurisdiction.

65] In fact, in Z vs. State of Bihar - 2018 (11) SCC 572, to
which detailed reference is made later, the Supreme Court
disapproved the dismissal of writ petition by the High Court in
which the petitioner had sought for permission to terminate her
pregnancy which had advanced to the 23 rd or 24th week on the
ground that she was a rape victim and also found to be HIV+ve.
The High Court relying upon the doctrines of "parens patriae"
and "compelling State interest" had declined permission for
medical termination of pregnancy which had by then advanced
into 23rd or 24th week. However, the Supreme Court
emphatically reversed the High Court by styling the approach of
the High Court as "completely erroneous".

66] If the provisions in section 5 are to be construed narrowly,
then such interpretation, would exclude some of the most

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important objectives for which the MTP Act was enacted or
some of the most important purposes for which the MTP Act
permits medical termination of pregnancies in the teeth of the
strict provisions in IPC. As noted earlier S.O.R to MTP Act,
after tracing the ill effects of the strict implementation of the
provisions in IPC, notes that in recent years (i.e. 1970s or
thereabouts), when health services have expanded and
hospitals are availed of to the fullest extent by all classes of
society, doctors have been confronted with gravely ill or dying
pregnant woman whose pregnancies have been tampered with,
a view to causing abortion. There is thus avoidable wastage of
mother's health, strength and, some times, life. The proposed
measure (MTP Act, 1971) which seeks to liberalize certain
existing provisions relating to termination of pregnancy has
been conceived (i) As a health measure - when there is danger
to life or risk to physical or mental health of the woman; (ii) On
humanitarian grounds - such as when pregnancy arises from a
sex crime like rape or intercourse with a lunatic woman, etc.;
and (iii) eugenic grounds - where there is substantial risk that
the child, if born, would suffer from deformities and diseases.

67] If therefore, literal or narrow construction is to be norm,
then most of the aforesaid objectives, purposes or measures,
except perhaps the purpose of "saving the life of the pregnant
mother", will stand excluded. This cannot have been the
intention of the legislature. As it is, even the strict provisions of
IPC had already made exceptions when it came to termination
of pregnancies in order to save the life of the pregnant mother.

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68] The words of a statute, where there is a doubt about their

meaning, are to be understood in the sense in which they best
harmonise with the subject of the enactment and the object
which the Legislature has in view. Their meaning is found not
so much in a strict grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in
the occasion on which they are used, and the object to be
attained. The courts have declined "to be bound by the letter,
when it frustrates the patent purposes of the statute". It is one of
the surest indexes of a mature and developed jurisprudence not
to make a fortress out of a dictionary but to remember that
statutes always have some purpose or object to accomplice who
sympathetic and imaginative discovery is the surest guide to
their meaning (Cabell vs. Markham - 148 F 2d 737 (2d Cir
1945), (Judge Learned Hand).

69] In R (Quintavalle) vs. Secretary of State for Health -
2003 UKHL 13, Lord Bingham of Cornhill held that the basic
task of the court is to ascertain and give effect to the true
meaning of what Parliament has said in the enactment to be
construed. But that is not to say that attention should be
confined and a literal interpretation given to the particular
provisions which give rise to difficulty. Such an approach not
only encourages immense prolixity in drafting, since the
draftsman will feel obliged to provide expressly for every
contingency which may possibly arise. It may also (under the
banner of loyalty to the will of Parliament) lead to the
frustration of that will, because undue concentration on the

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minutiae of the enactment may lead the court to neglect the
purpose which Parliament intended to achieve when it enacted
the statute. Every statute other than a pure consolidating
statute is, after all, enacted to make some change, or address
some problem, or remove some blemish, or effect some
improvement in the national life. The court's task, within the
permissible bounds of interpretation, is to give effect to
Parliament's purpose. So the controversial provisions should be
read in the context of the statute as a whole, and the statute as
a whole should be read in the historical context of the situation
which led to its enactment.

70] In Seaford Court Estates Ltd. Vs. Asher - (1949) 2 KB
481 (CA) , Lord Denning held that a Judge, believing himself to
be fettered by the supposed rule that he must look to the
language and nothing else, laments that the draftsmen have
not provided for this or that, or have been guilty of some or
other ambiguity. It would certainly save the Judges trouble if
Acts of Parliament were drafted with divine prescience and
perfect clarity. In the absence of it, when a defect appears a
Judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the
intention of Parliament, and he must do this not only from the
language of the statute, but also from a consideration of the
social conditions which gave rise to it, and of the mischief
which it was passed to remedy, and then he must supplement
the written word so as to give "force and life" to the intention of
the legislature.

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71] "The mere literal construction of statute", said Lord

Selborne in Caledonian Railway v. North British Railway -
(1881) 6 AC 114, 122, "ought not to prevail if it is opposed to
the intentions of the Legislature as apparent by the statute and if
the words are sufficiently flexible to admit of some other
construction by which that intention can be better effectuated."
One of the rules of interpretation is that Courts are competent,
in extraordinary circumstances, e.g. where the language falls
short of the whole object of Legislature (Municipal
Corporation, Delhi v. Charanjit Lal - (1980) 82 Punj LR 7
(FB)), to enlarge the meaning of an expression in statute in
order to give full effect to the intention of that statute as
appearing from the various provisions contained in it, if the
purpose for which the legislation is brought into existence can
be advanced by doing so or the mischief that it intends to curb
can be curbed by it. (Gyanchandra Mehrotra v. University of
Allahabad - AIR 1964 ALL 254).

72] In Abhiram Singh vs. C.D. Commachen - (2017) 2 SCC
629, the Supreme Court has held that the conflict between
giving a literal interpretation or a purposive interpretation to a
statute or a provision in a statute is perennial. It can be settled
only if the draftsman gives a long-winded explanation in
drafting the law but this would result in an awkward draft that
might well turn out to be unintelligible. The interpreter has,
therefore, to consider not only the text of the law but the
context in which the law was enacted and the social context in
which the law should be interpreted. The Supreme Court has

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finally approved R. (Quintavalle) case (supra) , in which it is
observed that the pendulum has swung towards purposive
methods of construction. To put it in the words of Lord Millett
"We are all purposive constructionists now".

73] In Abhiram Singh (supra) the Supreme Court has held that
another facet of purposive interpretation of a statute is that of
social context adjudication. This has been the subject-matter of
consideration and encouragement by the Constitution Bench of
this Court in Union of India vs. Raghubir Singh - 1989 (2)
SCC 754. In that decision, this Court noted with approval the
view propounded by Justice Holmes, Julius Stone and Dean
Roscoe Pound to the effect that law must not remain static but
move ahead with the times keeping in mind the social context.
It was said that like all principles evolved by man for the
regulation of the social order, the doctrine of binding precedent
is circumscribed in its governance by perceptible limitations,
limitations arising by reference to the need for readjustment in
a changing society, a readjustment of legal norms demanded by
a changed social context. This need for adapting the law to new
urges in society brings home the truth of the Holmesian
aphorism that 'the life of the law has not been logic it has been
experience' and again when he declared in another study that
"the law is forever adopting new principles from life at one end",
and "sloughing off" old ones at the other. Explaining the
conceptual import of what Holmes had said, Julius Stone
elaborated that it is by the introduction of new extra-legal
propositions emerging from experience to serve as premises, or

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by experience-guided choice between competing legal
propositions, rather than by the operation of logic upon existing
legal propositions, that the growth of law tends to be
determined.

74] In Raghubir Singh (supra), the Supreme Court further
observed that not infrequently, in the nature of things there is a
gravity-heavy inclination to follow the groove set by precedential
law. Yet a sensitive judicial conscience often persuades the mind
to search for a different set of norms more responsive to the
changed social context. The dilemma before the Judge poses the
task of finding a new equilibrium prompted not seldom by the
desire to reconcile opposing mobilities. The competing goals,
according to Dean Roscoe Pound, invest the Judge with the
responsibility 'of proving to mankind that the law was something
fixed and settled, whose authority was beyond question, while
at the same time enabling it to make constant readjustments and
occasional radical changes under the pressure of infinite and
variable human desires'. The reconciliation suggested by Lord
Reid in The Judge as Law Maker lies in keeping both objectives
in view, 'that the law shall be certain, and that it shall be just
and shall move with the times'.

75] In, Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn.
of Greater Bombay - (1974) 2 SCC 402, H.R. Khanna, J.
rather pragmatically observed that as in life so in law, things
are not static. Fresh vistas and horizons may reveal themselves
as a result of the impact of new ideas and developments in

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different fields of life. Law, if it has to satisfy human needs and
to meet the problems of life, must adapt itself to cope with new
situations. Nobody is so gifted with foresight that he can divine
all possible human events in advance and prescribe proper
rules for each of them. There are, however, certain verities
which are of the essence of the rule of law and no law can
afford to do away with them. At the same time it has to be
recognised that there is a continuing process of the growth of law
and one can retard it only at the risk of alienating law from life
itself.

76] In Badshah v. Urmila Badshah Godse - (2014) 1 SCC
188, the Supreme Court reaffirmed the need to shape law as
per the changing needs of the times and circumstances by
observing that the law regulates relationships between people.
It prescribes patterns of behaviour. It reflects the values of
society. The role of the court is to understand the purpose of
law in society and to help the law achieve its purpose. But the
law of a society is a living organism. It is based on a given
factual and social reality that is constantly changing.
Sometimes change in law precedes societal change and is even
intended to stimulate it. In most cases, however, a change in
law is the result of a change in social reality. Indeed, when
social reality changes, the law must change too. Just as change
in social reality is the law of life, responsiveness to change in
social reality is the life of the law. It can be said that the history
of law is the history of adapting the law to society's changing
needs. In both constitutional and statutory interpretation, the

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court is supposed to exercise discretion in determining the
proper relationship between the subjective and objective
purposes of the law.

77] Applying the principles of purposive interpretation, the
expression "life" as it appears in section 5 of the MTP Act is to
be construed liberally so as to effectuate the purpose for
enactment of MTP Act as reflected in the Statement of Objects
and Reasons. Such construction will advance the purpose of
the MTP Act by liberalizing or decriminalizing the existing
provisions relating to termination of pregnancy in IPC where
medical termination of pregnancy is warranted on account of
risk to the physical as well as mental health of the mother
(health measure), where pregnancy arises from a sex crime like
a rape or intercourse with a mentally ill woman etc.
(humanitarian grounds) and where there is substantial risk
that the child, if born, would suffer from deformities and
diseases (eugenic grounds). Narrow or literal construction, in
contrast, will force a pregnant mother to continue her
pregnancy even though the same might involve grave injury to
her mental health, even though the pregnancy may have arisen
from a sex crime, and even though there is substantial risk that
the child, if born, would suffer from deformities and diseases.
Narrow or literal construction, would therefore, exclude almost
altogether the humanitarian and eugenic grounds as well as the
ground of grave injury to the mental health of the mother. In
such circumstances, the principle of narrow or literal
construction will have to yield to the principle of liberal or
purposive construction.

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78] Narrow and literal construction of the expression "life" in

section 5 of the MTP Act as restricted to mere physical
existence or mere animal existence will also not be in harmony
with the constitutional principles of life, personal liberty and
human dignity. In Suchita Shrivastava (supra), the Supreme
Court has already held that there is no doubt that a woman's
right to make reproductive choice is also a dimension of
personal liberty as understood in Article 21 of the Constitution
of India. The crucial consideration in such matters is that a
woman's right to privacy, dignity and bodily integrity should be
respected.

79] Therefore, in a situation where the continuance of
pregnancy poses grave injury to the physical or mental health
of the mother or in a situation where there is substantial risk
that if the child were born, would suffer from deformities and
diseases, the pregnant mother is forced to continue with her
pregnancy merely because the pregnancy has extended beyond
the ceiling of 20 weeks, there would arise a serious affront to
the fundamental right of such mother to privacy, to exercise a
reproductive choices, to bodily integrity, to her dignity.

80] In contrast the adoption of the principle of liberal or
purposive construction will harmonize the provision in section
5 of the MTP Act with the constitutional provisions. It is well
settled principle in the interpretation of statutes that if two
interpretations are reasonably possible, then the one which
harmonizes the statute with the constitution must be preferred

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to the interpretation which conflicts the statute with the
constitution.

81] The Supreme Court has already held that the
fundamental right to life which is the most precious human
right and which forms the ark of all other rights must be
interpreted in a broad and expansive spirit so as to invest it
with significance and vitality which may endure for years to
come and enhance the dignity of the individual and the worth of
the human person. The right to life enshrined in Article 21
cannot be restricted to mere animal existence. It means
something much more than just physical survival. The right to
life includes the right to live with human dignity and all that
goes along with it, namely, the bare necessaries of life such as
adequate nutrition, clothing and shelter and facilities for
reading, writing and expressing oneself in diverse forms, freely
moving about and mixing and commingling with fellow human
beings. Every act which offends against or impairs human
dignity would constitute deprivation pro tanto of this right to
live and it would have to be in accordance with reasonable, fair
and just procedure established by law which stands the test of
other fundamental rights.(See - Fransis Coralie Mullin vs. UT
of Delhi - (1981) 1 SCC 608).

82] Human dignity was construed by a Constitution Bench of
this Court to be intrinsic to and inseparable from human
existence. Dignity, the Court held, is not something which is
conferred and which can be taken away, because it is
inalienable. The rights, liberties and freedoms of the individual

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are not only to be protected against the State, they should be
facilitated by it. It is the duty of the State not only to protect the
human dignity but to facilitate it by taking positive steps in that
direction. No exact definition of human dignity exists. It refers
to the intrinsic value of every human being, which is to be
respected. It cannot be taken away. It cannot be given. It simply
is. Every human being has dignity by virtue of his existence.
(See- M. Nagaraj v. Union of India - (2006) 8 SCC 212).

83] The Supreme Court has held "that when dignity is lost, life
goes into oblivion." The right to human dignity has many
elements. First and foremost, human dignity is the dignity of
each human being "as a human being". Another element is that
human dignity is infringed if a person's life, physical or mental
welfare is harmed. It is in this sense torture, humiliation, forced
labour, etc. all infringe on human dignity. (See- Mehmood
Nayyar Azam vs. State of Chattisgarh - (2012) 8 SCC 1 and
Shabnam v. Union of India - (2015) 6 SCC 702).

84] The Supreme Court has quoted Aharon Barak (former
Chief Justice of the Supreme Court of Israel) in the context of
human dignity being a constitutional value and the
constitutional goal:

'The constitutional value of human dignity has a central
normative role. Human dignity as a constitutional value
is the factor that unites the human rights into one whole.
It ensures the normative unity of human rights. This nor-

mative unity is expressed in the three ways: first, the
value of human dignity serves as a normative basis for
constitutional rights set out in the constitution; second, it

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serves as an interpretative principle for determining the
scope of constitutional rights, including the right to hu-
man dignity; third, the value of human dignity has an
important role in determining the proportionality of a
statute limiting a constitutional right."

(See- Jeeja Ghosh v. Union of India - (2016) 7 SCC 761).

85] Recently, in K.S. Puttuswamy vs. Union of India -
2017 (10) SCC 1, Dr. Chandrachud, J. speaking for the majority
of the Supreme Court held that life is precious in itself. But life
is worth living because of the freedoms which enable each indi-
vidual to live life as it should be lived. The best decisions on
how life should be lived are entrusted to the individual. They
are continuously shaped by the social milieu in which individu-
als exist. The duty of the State is to safeguard the ability to take
decisions -- the autonomy of the individual -- and not to dic-
tate those decisions. "Life" within the meaning of Article 21 is
not confined to the integrity of the physical body. The right
comprehends one's being in its fullest sense. That which facili-
tates the fulfillment of life is as much within the protection of
the guarantee of life. To live is to live with dignity. The drafts-
men of the Constitution defined their vision of the society in
which constitutional values would be attained by emphasising,
among other freedoms, liberty and dignity. So fundamental is
dignity that it permeates the core of the rights guaranteed to
the individual by Part III. Dignity is the core which unites the
fundamental rights because the fundamental rights seek to
achieve for each individual the dignity of existence.

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86] Therefore, when it comes to interpretation of the expres-

sion "life" in section 5 of the MTP Act, we cannot construe the
same as restricted to mere physical existence or mere animal
existence or mere survival of the pregnant mother. The expres-
sion cannot be confined to the integrity of the physical body
alone but will comprehend one's being in its fullest sense. That
which facilitates fulfillment of life as much within the protection
of the guarantee of life. The expression will include the right to
live with dignity and not to merely survive with indignity, not to
mention the life long physical and mental trauma which such
episodes invariably generate.

87] This is not to suggest that there is no rationale in provid-
ing some ceiling within which medical termination of pregnancy
may be allowed. In Suchita Shrivastava (supra), the Supreme
Court has explained the rationale for the provision of ceiling of
20 weeks (of gestation period) within which the medical termi-
nation of pregnancy may be allowed. The Supreme Court gave
two reasons (i) That there is clear medical consensus that an
abortion performed during the later stages of pregnancy is very
likely to cause harm to the physical health of the woman who
undergoes the same; and (ii) That there is "compelling State in-
terest" in protecting the right of the prospective child or the po-
tentiality of human life. (Roe v. Wade, 410 US 113).

88] The MTP Act was enacted almost five decades ago, i.e., in
1971. There is sea change in the medical opinion looking to the
advancement in medical science since then. The Supreme

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Court, relying upon the dictum in Suchita Shrivastava (supra)
that woman's right to make reproductive choice is a dimension
of personal liberty under Article 21 of the Constitution and that
woman's right to privacy, dignity and bodily integrity must be
respected, has, in several cases permitted medical termination
of pregnancies exceeding 20 weeks. This was on the basis of lib-
eral and purpose oriented interpretation of the provisions in
section 5 of the MTP Act. This was also on the basis of opinions
of the medical boards specially constituted for the purpose that
the risks (if any) involved in the termination of pregnancy be-
yond 20 weeks would be no greater than the risks involved in
spontaneous delivery at full term. Thus, the first consideration
for providing the ceiling, was duly addressed and not compro-
mised in the least.

89] In all such cases, there is no doubt whatsoever that this
Court will have to obtain a medical opinion on the precise issue
as to whether termination of pregnancy beyond the 20 th week
and in circumstances set out in clauses (i) and (ii) of section
3(2)(b) of the MTP Act, would pose any risk to the life of the
pregnant mother. In cases where the medical opinion is that
death risk is involved in undertaking the medical termination of
such pregnancies, obviously, no permission can or will be
granted. Thus, liberal or purpose oriented interpretation of the
provisions in section 5(1) of the MTP Act, will not, in any man-
ner, compromise any issues relating to risks or dangers in un-
dertaking medical termination of pregnancies post the ceiling
period, where the circumstances set out in clauses (i) and (ii) of
section 3(2)(b) of the MTP Act exist.

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90] In so far as the aspect of "compelling State interest" is con-

cerned, again, no doubt, this is quite a weighty consideration.
But such consideration cannot be stretched to some extreme
extent by insisting that the State has compelling interest even
in saving a pregnancy where the potentiality of human life is al-
most extinct or where the child, if born, were to suffer from
such physical or mental abnormalities as to be seriously handi-
capped. Similarly, there can also be no compelling State inter-
est, in insisting upon continuance pregnancy beyond 20 weeks
where it would involve a grave injury to the mother's physical or
mental health. The scheme of the MTP Act, even otherwise,
places the interests of a mother on a higher pedestal than the
interests of a prospective child. This is based on the logic that
the fetus cannot have independent extra uterine existence and
the life of the mother who independently exists, is entitled to
greater consideration.

91] The issue of compelling State interest can perhaps arise
in a case where circumstances set out in clauses (i) and (ii) of
section 3(2) of the MTP Act do not exist and yet the pregnant
mother seeks medical termination of pregnancy, whether within
or beyond the ceiling limit of 20 weeks. However, that is really
not the issue with which we are concerned in these batch of Pe-
titions. In fact, in these batch of Petitions, we are not concerned
with the rights, if any of pregnant mothers to seek medical ter-
mination of their pregnancies solely on the ground of right to
make reproductive choices or personal liberty or on any
grounds de-hors the contingencies referred to in clauses (i) and

(ii) of section 3(2)(b) of the MTP Act. In these Petitions, we are

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really concerned with pregnancies which have exceeded 20
weeks and circumstances as set out in clauses (i) and (ii) of sec-
tion 3(2)(b) of the MTP Act exist. At least in these circum-
stances, we do not think that the consideration based upon
compelling State interest must be permitted to prevail. The
most relevant consideration in these circumstances will be
whether undertaking procedures for termination of pregnancy
at such an advanced stage would endanger the life of the
mother. If the medical opinion reports danger, then surely this
consideration will prevail and permission for medical termina-
tion of pregnancy will have to be declined.

92] In Independent Thought vs. Union of India - (2017) 10
SCC 800, the Supreme Court was considering the challenge to
Exception - 2 to section 375 of IPC (rape) since, the exception
had decriminalized sexual intercourse between a man and his
minor wife (a girl between 15 and 18 years of age). One of the
defences raised by the Union of India was "Compelling State in-
terest". This was elaborated by urging that otherwise, the very
'institution of marriage' might perish. The Supreme Court, em-
phatically rejected such defence by holding that early marriage
takes away the self esteem and confidence of a girl child and
subjects her, in a sense, to sexual abuse. Such marriage se-
verely curtails the reproductive choices of such married girl
child, even though, documentary material suggests that there
are greater chances of girl child dying during childbirth and
there are greater chances of neonatal deaths. The Supreme
Court also noted that the legislation which may be quite rea-

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sonable and rational at the time of its enactment may with the
lapse of time and/or due to change of circumstances become
arbitrary, unreasonable and violative of the doctrine of equality
and even if the validity of such legislation may have been up-
held at a given point of time, the Court may, in subsequent liti-
gation, strike down the same if it is found that the rationale of
classification has become non-existent. There is therefore no
doubt that the impact and effect of Exception 2 to Section 375
of IPC has to be considered not with the blinkered vision of the
days gone by but with the social realities of today. Traditions
that might have been acceptable at some historical point of time
are not cast in stone. If times and situations change, so must
views, traditions and conventions.

93] In Anuj Garg vs. Hotel Assn. of India - (2008) 3 SCC 1,
the Supreme Court, when dealing with the defence of
"compelling State purpose" observed that "heightened level of
scrutiny"is the normative threshold for judicial review in such
cases. The Supreme Court observed that it is to be borne
in mind that legislations with pronounced "protective
discrimination" aims, such as this one, potentially serve as dou-
ble-edged swords. Strict scrutiny test should be employed while
assessing the implications of this variety of legislations. Legisla-
tion should not be only assessed on its proposed aims but
rather on the implications and the effects. The impugned legis-
lation suffers from incurable fixations of stereotype morality
and conception of sexual role. The perspective thus arrived at is
outmoded in content and stifling in means. No law in its ulti-
mate effect should end up perpetuating the oppression of

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women. Personal freedom is a fundamental tenet which cannot
be compromised in the name of expediency until and unless
there is a compelling State purpose. Heightened level of scru-
tiny is the normative threshold for judicial review in such cases.

94] As noted earlier, in Z vs. State of Bihar (supra), the
Supreme Court was concerned with the pregnancy of a men-
tally retarded (but not mentally ill) rape victim, who was also
found to be HIV positive. The High Court, relying upon the doc-
trines of "parens patriae" and "compelling State interest" de-
clined permission for medical termination of pregnancy which
had by then advanced into 23rd or 24th week.

95] The Supreme Court upon detailed evaluation of the facts
and analysis of the law on the subject, emphatically reversed
the High Court. The observations in paragraphs 23 and 48 are
relevant and the same read thus:

"23. We have already analysed in detail the factual
score and the approach of the High Court. We do not
have the slightest hesitation in saying that the ap-
proach of the High Court is completely erroneous. The
report submitted by IGIMS stated that termination of preg-
nancy may need major surgical procedure along with sub-
sequent consequences such as bleeding, sepsis and anaes-
thesia hazards, but there was no opinion that the ter-
mination could not be carried out and it was risky to
the life of the appellant. There should have been a
query in this regard by the High Court which it did
not do. That apart, the report shows that the appellant,
who was a writ petitioner before the High Court, was suf-
fering from mild mental retardation and she was on medi-
cations and her condition was stable and she would re-

quire long-term psychiatry treatment. The Medical Board

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has not stated that she was suffering from any kind of
mental illness. The appellant was thirty-five years old at
that time. She was a major. She was able to allege that
she had been raped and that she wanted to terminate her
pregnancy. PMCH, as we find, is definitely a place where
pregnancy can be terminated".

          ...      ......
... ......

"48. In Mehmood Nayyar Azam v. State of Chhattis-
garh (2012) 8 SCC 1, the Court has observed that the
word "torture" in its denotative concept includes
mental and psychological harassment. It has the po-
tentiality to cause distress and affects the dignity of
a citizen. Under the present Act, the appellant is cov-
ered by the definition. In such a situation, there was
no justification to push back her rights and throw
her into darkness to corrode her self-respect and in-
dividual concern. She had decided to exercise her statu-
tory right, being a victim of rape, not to bear the child and
more so, when there is possibility of the child likely to suf-
fer from HIV+ve, the authorities of the State should have
been more equipped to assist the appellant instead of de-
laying the process. That apart, as is seen, the State in
a way contested the matter before the High Court on
the foundation of State interest. The principle of
State interest is not at all applicable to the present
case. Therefore, the concept of grant of compensa-
tion under public law remedy emerges."

(emphasis supplied)

96] The issue with which we are presently concerned, came
up for consideration before Division Bench of this Court (R.M.
Borde and R.G. Ketkar, JJ.) in Shaikh Ayesha Khatoon vs.
Union of India (Writ Petition (St.) No. 36727 of 2017) which
was disposed of on 9th January 2018. The Division Bench was
concerned with a case where pregnancy had exceeded twenty
weeks and the termination of such pregnancy was not

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immediately necessary to save the life of pregnant woman.
However, the reports of Medical Board specially constituted for
the purpose has indicated that there were foetal anomalies and
the chances of survival of the fetus appear less and there was
substantial risk of severe physical handicap to the child, if born
alive.

97] In the aforesaid circumstances, the Division Bench
permitted the MTP by adopting a purposive construction and
observing thus:

"13. It 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 a 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) (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 above Section 5 permits
termination of pregnancy by a registered medical
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

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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.

14. As has been recorded above, the freedom of a
pregnant woman of making choice of reproduction which is
integral part of "personal liberty", whether to continue with
the pregnancy or otherwise cannot be taken away. It shall
also be taken into consideration that besides physical
injury, the legislature has widened the scope of the
termination of pregnancy by including "a injury" to mental
health of the pregnant woman. Thus, if continuance of
pregnancy is harmful to the mental health of a pregnant
woman, then that is a good and legal ground to allow
termination of pregnancy if all the conditions incorporated
in legal provision are met. In the instant matter the
petitioner claims that it would be injurious to her
mental health to continue with the pregnancy since
there are severe foetal abnormalities noticed and it
would also be violative of her "personal liberty" to
deny her the choice to terminate the pregnancy. The
provisions of Section 5 of the Act of 1971 shall have
to be interpreted in the manner for advancing the
cause of justice."

(Emphasis supplied)

98] Another Division Bench of this Court (Mrs.Tahilramani, J.
as Her Ladyship then was and Mrs.Mrudula Bhatkar, J.) in
High Court on its own motion vs. The State of
Maharashtra - 2017 Cri.L.J. 218 has held that a woman's

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decision to terminate a pregnancy is not a frivolous one.
Abortion is often the only way out of a very difficult situation for
a woman. An abortion is a carefully considered decision taken
by a woman who fears that the welfare of the child she already
has, and of other members of the household that she is obliged
to care for with limited financial and other resources, may be
compromised by the birth of another child. These are decisions
taken by responsible women who have few other options. They
are women who would ideally have preferred to prevent an
unwanted pregnancy, but were unable to do so. If a woman
does not want to continue with the pregnancy, then forcing her
to do so represents a violation of the woman's bodily integrity
and aggravates her mental trauma which would be deleterious
to her mental health.

99] The Division Bench has referred to certain provisions in
international treaties concerning human rights. In that context,
the Division Bench has observed that a person is vested with
human rights only at birth, an unborn fetus is not an entity
with human rights. The pregnancy takes place within the body
of a woman and has profound effects on her health, mental well
being and life. Thus, how she wants to deal with this pregnancy
must be a decision she and she alone can make. The right to
control her own body and fertility and motherhood choices
should be left to the women alone. The basic right of a woman
is the right to autonomy, which includes the right to decide
whether or not to get pregnant and stay pregnant.

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100] The Division Bench then noted that the right of woman to
say no to motherhood, emerges from her human right to live
with dignity as a human being and is protected as a
fundamental right under Article 21 of the Constitution, no
doubt, subject to the reasonable restrictions as contemplated
under MTP. The Division Bench has observed that human
rights are natural right and thus a woman has a natural right
in relation to her body which includes her willingness to be a
mother or her unwillingness to be a mother. The Division
Bench has observed that section 3 (2) of the MTP Act is an
extension of the human right of a woman and this needs to be
protected. Woman owns her body and has right over it.
Abortion is always a difficult and careful decision and woman
alone should be the choice maker. A child when born and takes
first breath, is a human entity and thus, unborn fetus cannot
be put on a higher pedestal than the right of living woman.
Thus, the right of reproductive choice though restricted by MTP
Act, recognises and protects her right to say no to the
pregnancy if her mental or physical health is at stake.

101] The MTP Act lays great emphasis on grave injury to not
just the physical but also the mental health of the pregnant
woman. Section 3 (2)(b) of the MTP Act provides that if the
continuance of pregnancy would involve grave injury to the
mental health of the pregnant woman, then, she can
legitimately seek to terminate the same. In fact, the expression
'grave injury to her mental health' has been liberally construed
by the legislature itself. Section 3(3) of the MTP Act provides
that in determining is whether the continuance of pregnancy

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would involve such risk of injury to the health as is mentioned
in section 3(2) of the MTP Act, 'account may be taken of the
pregnant woman's actual or reasonable and foreseeable
enviornment'. This has greater nexus to the aspect of injury to
mental health than injury to physical health.

102] The first explanation to section 3 (2) of the MTP Act
expands the concept of 'grave injury to mental health' by raising
a presumption that anguish caused by any pregnancy as a
result of rape shall be presumed to constitute a grave injury to
the mental health of pregnant woman. In fact, the explanation
states that where pregnancy is alleged by a pregnant woman to
have been caused by rape, anguish caused by such pregnancy
shall be presumed to constitute a grave injury to the mental
health of a pregnant woman.

103] The second explanation to section 3 (2) of the MTP Act
goes even further and provides, that where pregnancy occurs as
a result of failure of any device or method used by any married
woman or her husband for the purpose of limiting the number
of children, the anguish caused by such unwanted pregnancy
may be presumed to constitute a grave injury to the mental
health of the pregnant woman. Thus, even a pregnancy arising
out of failure of any contraceptive device and the anguish
caused thereby, is presumed to constitute a grave injury to the
mental health of the pregnant woman.

104] Therefore, for purposes of section 3 (2) of the MTP Act, the
expression 'grave injury to mental health', is used in a liberal

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sense by the legislature itself. Further, section 3 (3) of the MTP
Act, in terms provides that in determining whether continuance
of pregnancy would involve such risk of injury to the health as
is mentioned in section 3 (2), account may be taken of the
pregnant woman's actual or reasonable foreseeable environment.
Section 3 (3) of the MTP Act, makes reference not merely to
physical injury but also to mental injury. In fact, the aspect of a
pregnant woman's actual or reasonable foreseeable
environment has greater nexus to aspect of mental health as
compared to physical health, particularly in the present
context.

105] This legislative liberality when it comes to expanding the
concept of the grave injury to mental health cannot evaporate
no sooner the ceiling of 20 weeks prescribed in section 3 (2)(b)
of the MTP Act is crossed. If the expression "life" in section 5(1)
of the MTP Act is not to be confined to mere physical existence
or survival, then, permission will have to be granted under
section 5 (1) of the MTP Act for medical termination of
pregnancy which may have exceeded 20 weeks, if the
continuance of such pregnancy would involve grave injury to
the mental health of the pregnant woman.

106] It is not as if all contingencies express themselves only
within the first 20 weeks of pregnancy. Even in cases where a
pregnant mother is regularly following up with her gynecologist,
double marker test is undertaken between 10 th and 13th week;
triple marker test between 18 th and 20th week and the crucial
Anamoly scan, in or around the 20 th week. Many serious fetal

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anamolies may not even be diagnosable until twenty weeks as
many pregnant mothers may not even have access to suitable
diagnostic tools, particularly in rural parts. In many cases,
complications can develop as the pregnancy advances. In many
cases, complications may be detected at some advanced stage.
In such cases, as long as the medical opinion does not suggest
that medical termination of pregnancy at the advance stage is
itself a serious risk to the physical life of the pregnant mother,
the law cannot plead helplessness particularly where
circumstances set in clauses (i) and (ii) of section 3 (2)(b) of the
MTP Act manifestly exist.

107] The aforesaid myriad factors and circumstances assume
importance and in fact, are required to be taken into account
by the MTP Act legislature. This is evident from the provision in
section 3(3) of the MTP Act which requires account to be taken
of the pregnant woman's actual or reasonable foreseeable
environment in determining whether continuance of a
pregnancy would involve such risk of injury to health as is
mentioned in section 3(2) of the MTP Act. The expression
"pregnant woman's actual or reasonable foreseeable
environment" is also particularly relevant when it comes to
dealing with cases of women from rural areas or rural
backgrounds. The provisions of MTP Act have to be so
construed so as to not impose any unreasonable or
disproportionate burden on pregnant women, who on account
of circumstances set out in clauses (i) and (ii) of section 3(2)(b)
of the MTP Act seek medical termination of pregnancy, even

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though, the ceiling prescribed in the said provisions may have
crossed.

108] Incidentally, reference may be made to the MTP
(Amendment) Bill 2014 which also takes conscious cognizance
of this aspect - in that the ceiling prescribed in section 3(2) of
the MTP Act is proposed to be raised to 24 weeks. This
amendment had even proposed to do away entirely with the
ceiling of 20 weeks, where termination of pregnancy was
necessitated by the diagnosis of any substantial foetal
abnormalities as may be prescribed. Similarly, reference may
also be made to the Medical Termination of Pregnancy
(Amendment) Bill, 2017, the Statement of Objects and Reasons
of which reads thus:

"This sub-section (2) of section 3 of the Medical
Termination of Pregnancy Act, 1971, allows the abortion of
terminally ill fetuses upto twenty weeks pregnancy.
During the intervening period after the Act was
enforced, several genuine cases have come up where
the fact of fetuses with serious risk of abnormalities
with grave risk to physical and mental risk to
mother had been noticed after twenty weeks. As a
result, many women were forced to move the
Supreme Court for permission to end pregnancy
beyond twenty weeks, leading to lot of mental and
financial hardship to such pregnant women.

The Bill intends to extend the permissible period for
abortion from twenty weeks to twenty four weeks if doctors
believe the pregnancy involves a substantial risk to the
mother or the child or if there are substantial fetal
abnormalities. The Bill also intends to amend provisions of
sub-section (3) of section (6) relating to laying of rules
before each House of Parliament and their notification etc.
by the House."

(Emphasis supplied)

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109] For all the aforesaid reasons, we hold that this Court can,
in exercise of its extraordinary jurisdiction under Article 226 of
the Constitution of India, permit the Petitioners to undergo
medical termination of their pregnancies in contingencies set
out in clauses (i) and (ii) of section 3(2)(b) of the MTP Act, even
though, the length of such pregnancies may have exceeded 20
weeks in certain circumstances.

110] In cases where a registered medical practitioner is of the
opinion, formed in good faith that termination of pregnancy
which may or may not have exceeded 20 weeks is immediately
necessary to save the physical life of the pregnant woman, there
is no necessity for even seeking any permission. Thus, if a
registered medical practitioner is of the opinion that if the
pregnancy is not medically terminated immediately, the
pregnant woman might die, then, it is the duty of such
registered medical practitioner to undertake the termination
and the provisions of MTP Act will afford such registered
medical practitioner immunity.

111] However, permission from this Court or the Supreme
Court will be necessary where the pregnant mother seeks to
medically terminate her pregnancy, not on the ground that
such termination is immediately necessary to save her life, but
on grounds like the continuance of pregnancy would involve a
grave injury to her physical or mental health and/or that there
is substantial risk that if the child were born, it would suffer
from physical or mental abnormalities as to be seriously
handicapped.

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112] The reason for treating the two sets of cases differently, is
quite obvious. In the former, there is threat to the physical
existence of the pregnant mother, if termination of pregnancy is
not undertaken by the registered medical practitioner,
immediately. The inevitable delay involved in the legal process
might even lead to the demise of the pregnant mother. In the
later cases however, there may not be any immediate threat to
the physical existence of the pregnant mother, but,
nevertheless the continuance of pregnancy, particularly under
circumstances set out in clauses (i) and (ii) of section 3(2)(b) of
the MTP Act, may deprive the Petitioner of her right to life,
which as noted earlier, includes not merely the right to
physically exist or to survive, but also, the right to live with
human dignity, the right to comprehend one's being in its
fullest sense.

113] Besides, in the later cases, permission from the Courts is
necessary in order to prevent abuse and exploitation, which
might result, taking into account the inevitable subjectivity
involved in such matters. This Court cannot be oblivious to the
observations made by the Supreme Court in Voluntary Health
Association of Punjab vs. Union of India - 2016(10) SCC
265 on the aspect of abuse of the MTP Act to eliminate female
fetuses as well as the reasons for enacting the PCPNDT Act.
Further, if a case is indeed made out for grant of permission,
appropriate orders can be made on several aspects, including,
inter alia on the aspect of immunity to registered medical
practitioner, maintenance of proper documentation etc. No

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doubt, the requirement of obtaining such permissions from the
Court, will, increase the burden on the pregnant mother.
However, in situations where the pregnancy has exceeded
twenty weeks and where the pregnant mother seeks
termination under circumstances set out in clauses (i) and (ii)
of section 3 (2)(b) of the MTP Act even though, there may be no
necessity of immediate termination in order to save the
mother's life, the requirement of permission from the Court is
considered necessary safeguard in such matters.

114] The aforesaid distinction between the two sets of cases is
necessary lest we be misunderstood of holding that registered
medical practitioner is at liberty, in every case, to medically
terminate pregnancy which exceeds 20 weeks on the basis of
liberal interpretation of the provisions in section 5 of the MTP
Act, by reference to the contingencies in clauses (i) and (ii) of
section 3(2)(b) of the MTP Act. We therefore make it clear that a
registered medical practitioner, in a case where he is of opinion,
formed in good faith, that termination of such pregnancy is
immediately necessary to save the life of the pregnant woman,
can medically terminate such pregnancy which may have
exceeded 20 weeks, even without the permission from the
Court. This is in a situation where the pregnant woman might
actually die if the pregnancy is not immediately terminated.
However, we also make it extremely clear that in cases where
pregnancy had exceeded 20 weeks and where the pregnant
woman will not die if the pregnancy is not immediately
terminated, but the pregnant woman seeks to terminate
pregnancy on the ground that its continuance would involve

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grave risk to her physical or mental health or where there is
substantial risk that if the child were born, it would suffer from
physical or mental abnormalities as to be seriously
handicapped, then, there will be no liberty to the registered
medical practitioner, on his own, to terminate such pregnancy.
In the later situation, permission will necessarily have to be
obtained from the High Court, before a registered medical
practitioner undertakes such medical termination of pregnancy.
The grant or refusal of such permission will then be governed
by varied factors, including but not restricted to the opinion of
the medical board and the binding precedents of the Supreme
Court.

115] The next question which arises in these Petitions relates
to the procedure to be followed and the safeguards that will
have to be adopted in such matters, particularly with regard to
the constitution of medical boards to examine the pregnant
mothers and the hospitals and clinics at which such
termination of pregnancy may be permitted to be safely
undertaken.

116] As noticed earlier, the Supreme Court, in Sonali

Gaikwad (supra) has already clarified that such cases can be
filed in the respective High Courts having territorial
jurisdiction. This means that Writ Petition under Article 226 of
the Constitution of India will have to be instituted in this Court
if the Petitioner resides within the territorial jurisdiction of this
Court or if the cause of action arises within the territorial

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jurisdiction of this Court to seek permission for termination of
her pregnancy, were such termination is not immediately
necessary to save her life, but where she alleges that the
circumstances set out in clauses (i) and (ii) of section 3(2)(b) of
MTP Act exist. Further, as was held in X and Others vs. Union
of India, 2017 (3) SCC 458, a relator action may not be
permitted in such cases and therefore, such Petition will have
to be instituted by the pregnant mother and such Petition will
have to be supported by affidavits of the pregnant mother. This
is the general rule which will obviously not apply to exceptional
situations, which will have to be dealt with on a case to case
basis.

117] The Writ Petition, in such cases, must disclose the details
of the Petitioner, along with identity proof. The Petition must
state the reasons for seeking medical termination of pregnancy,
express consent and request for termination of pregnancy, the
hospital/clinic at which the termination is proposed to be
undertaken and such other details as may be necessary in such
matters. If the pregnant mother is a minor or mentally ill
person, then, the Petition can always be filed through her
guardian. The requirements in section 3(4) of the MTP Act, will
then have to be complied with by such guardian.

118] The pregnant mother, will then be referred for
examination by a medical board, which must include, but is not
limited to, Doctors from the following departments, in addition
to the registered medical practitioner/s:

          a.       Obstetrics and gynaecology

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b. Paediatrics
c. Psychiatry/ Psychology
d. Radiology / Radiodiagnosis/Sonography
e. The field of medicine pertaining to the ailment that
the foetus may be diagnosed with.

119] Mr. Vagyani and Ms. Kantharia, the learned Government
Pleaders, on the basis of instructions, have assured this Court
that medical boards shall be established on permanent basis in
hospitals established or maintained by the Government, to the
extent possible. Having regard to the rise in such cases and the
fact that the resolution of such cases brooks no delay, we direct
the State to set up medical boards on permanent basis, at least
in one of the major cities, in each of the Districts of State of
Maharashtra. Such medical boards to be established as
expeditiously as possible, if not already established, but in any
case, within a period of two three months from today. Pending
establishment of such medical boards on permanent basis, the
State, will have to constitute medical boards on ad-hoc basis to
examine pregnant mothers, on case to case basis. Affidavit of
compliance to be filed by the Secretary (Health), Government of
Maharashtra on the aspect of establishment of permanent
medical boards in each of the Districts, State of Maharashtra.

120] The medical boards, upon reference from this Court, must
examine the pregnant mother as expeditiously as possible and
in any case within a period of 72 hours from the date of
referral. Thereafter, within a period of 48 hours, the medical
board must submit a report to this Court in sealed cover,
indicating inter alia the status of the pregnant mother and the

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foetus within, in the context of the request of the pregnant
mother for medical termination of her pregnancy.

121] The medical board, in such matters, is expected to
address all medical issues which normally arise in such
matters, including, but not restricted to the following :

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

(ii) Whether 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.

(iii) Whether, having regard to the advanced stage of
pregnancy, there is any danger (other than the usual
danger which arises even in spontaneous delivery at the
end of full term), if the pregnant mother is permitted to
terminate her pregnancy ?

(iv) If the pregnant mother is a minor or mentally ill
person, then, the medical board to ascertain, to the extent
possible, the wishes of the pregnant mother on the
continuance of pregnancy or otherwise.

(v) The medical process best suited to terminate the
pregnancy and the possibility of child being born alive, in
the process.

(vi) Any other issues, which the medical board regards
as relevant, in such matters.

122] Based upon the report of the medical board as also other
considerations involved in such matters, if this Court, decides

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to grant permission to medically terminate the pregnancy, then,
the procedures for such termination will have to be necessarily
undertaken at the places indicated in section 4 of the MTP Act.
This means that the termination will have to be undertaken at
the hospitals established or maintained by the Government or
at places for the time being approved for the purpose of the
MTP Act by the Government or a District level Committee
constituted by the Government with the Chief Medical Officer or
the District Health Officer as the Chairperson of the said
Committee. In terms of proviso to section 4 of the MTP Act, the
District level Committee shall consist of not less than 3 and not
more than 5 members including the Chairperson, as the
Government may specify from time to time.

123] Mr.Vagyani and Ms.Kantharia, the learned Government
Pleaders, on the basis of instructions, have assured this Court
that sufficient number of places have already been approved for
the purposes of section 4(b) of the MTP Act. In any case, we
direct the State to ensure that sufficient number of places are
approved for the purpose of the MTP Act. In approving such
places, needless to add that the Government will have to
comply with the requirements set out in Rule 5 of the MTP
Rules, 2003. Besides, as prescribed in Rule 6 of the MTP Rules,
2003 the Chief Medical Officer of each of the Districts will have
to undertake periodic inspections of such approved places with
a view to verify whether termination of pregnancies is being
done therein under safe and hygienic conditions.

124] In all such cases, where permission is granted to

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medically terminate pregnancies the provisions in the MTP
Rules, 2003 and the MTP Regulations, 2003, will have to be
complied with by the registered medical practitioners,
hospitals/clinics and the approved places in terms of section
4(b) of the MTP Act. Therefore, the directions which we have
issued, are in addition to and certainly not in derogation of any
of the requirements prescribed under the MTP Act, the rules
and regulations made there under.

125] In some cases, including, in one of the cases in this batch
of Petitions, the medical board suggested that the pregnant
mother and/or her family members give an undertaking that if,
despite attempts at medical termination of pregnancy, the child
is born alive, then the pregnant mother and/or her family
members take full responsibility for such child.

126] At the outset, we make it extremely clear that if despite
attempts at medical termination of pregnancy, the child is born
alive, then, first and foremost the registered medical
practitioner and the hospital/ clinic concerned will have to
assume the full responsibility to ensure that such child is
offered the best medical treatment available in the
circumstances, in order that it develops into a healthy child.
Though there is debate as to whether the fetus (child in the
womb) is a person, entitled to rights, there is no debate on the
issue that a child, born alive, is a person, in whom, the right to
life and personal liberty inheres. Therefore, taking into
consideration the provisions of Part III and Part IV of the
Constitution, we make it clear, that under no circumstances,

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such a child must be neglected or left to perish, particularly
where the pregnant or her family members may not be in a
position to or may not be willing to assume responsibility in
such matters.

127] In the aforesaid regard, we refer to the decision of the
Supreme Court in Parmanand Katara vs. Union of India
(1989) 4 SCC 286 where it was held that there can be no
second opinion that preservation of human life is of paramount
importance. That is so on account of the fact that once life is
lost, the status quo ante cannot be restored as resurrection is
beyond the capacity of man. Article 21 of the Constitution casts
the obligation on the State to preserve life. The provision as
explained by this Court in scores of decisions has emphasised
and reiterated with gradually increasing emphasis, that
position.

128] The Supreme Court has further observed that a Doctor at
the government hospital positioned to meet this State obligation
is, therefore, duty bound to extend medical assistance for
preserving life. Every doctor whether at a government hospital
or otherwise has the professional obligation to extend his
services with due expertise for protecting life. No law or State
action can intervene to avoid/delay the discharge of the
paramount obligation cast upon members of the medical
profession. The obligation being total, absolute and paramount,
laws of procedure whether in statutes or otherwise which would
interfere with the discharge of this obligation cannot be
sustained and must, therefore, give way. So far as this duty of

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medical profession is concerned, it is a duty coupled with
human instinct and therefore, it needs neither any decision nor
any code for compliance. In any case, Code of Medical Ethics
framed by the Medical Council of India Item 13 specifically
provides for it.

129] In M. Nagraj (supra), the Constitution Bench in the
context of certain fundamental rights, including the right to life
and human dignity, has held that the values impose a positive
duty on the State to ensure their attainment as far as
practicable. The rights, liberties and freedoms of the individual
are not only to be protected against the State, they should be
facilitated by it. It is the duty of the State to not only to protect
the human dignity but to facilitate it by taking positive steps in
that direction.

130] Therefore, if the child, despite attempts at medical
termination of pregnancy, is born alive, then the parents as well
as the Doctors owe a duty of care to such child. The best
interest of the child must be the central consideration in
determining how to treat the child. The extreme vulnerability of
such child is itself reason enough to ensure that everything
which is reasonably possible and feasible, in the circumstances,
will have to be offered to such child, so that it develops into a
healthy child.

131] In such matters, the instinct of the parents, will no doubt
take over when it comes to the love and care to be offered to
such child. However, in the unfortunate situation, where for

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several myriad factors, the parents of such child are unwilling
to or genuinely not in a position to care for such child, then, the
"parens patriae" doctrine, will oblige the State to assume
parental responsibility in relation to such child.

132] Even apart from the "parens patriae" doctrine, the
provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2015, will apply to such an unfortunate
situation. There are detailed provisions under the Juvenile
Justice Act to deal with cases of "abandoned child" as defined
under section 2(1) or "child in need of care and protection" as
defined in section 2(14) of the Juvenile Justice Act. The
hospital/clinic authorities, must take necessary measures as
prescribed under the Juvenile Justice Act to deal with such
unfortunate situations. The best interest of the child, must be
the primary consideration in all such matters.

133] According to us, both the parens patriae doctrine as well
as provisions of Juvenile Justice Act obliged the State to
assume parental responsibility in relation to such children.
Therefore, the State, consistent with the provisions of the
Juvenile Justice Act will have to protect and take care of such
children, should, such need arise. Mr. Vagyani and
Ms.Kantharia, the learned Government Pleaders, on the basis of
instructions, have assured this Court, that consistent with the
provisions of section 27 of the Juvenile Justice Act, the State
Government, where it has not already done so, will by
notification in the Government Gazette constitute for every
District, one or more Child Welfare Committees (CWC) for

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exercising the powers and discharging the duties conferred
upon such Committees in relation to children in need of care
and protection under the Juvenile Justice Act.

134] The learned Government Pleaders, on the basis of
instructions, have assured this Court that the State and its
agencies like CWC etc. will, after compliance prescribed
procedures, declare such children legally "free for adoption", in
case the enquiries establish that such children have no one to
care for or are abandoned or surrendered. In any case, we
direct the State and its agencies to take all steps in this regard,
keeping in mind the principle of the best interests of such
children.

135] The learned Government Pleaders pointed out that at
least, at major Government Hospitals in Metros as well as at
District places, there are specialized adoption agencies, which
facilitate adoption of such children. In any case, the learned
Government Pleaders, again on basis of instructions, assured
this Court that the State and its agencies will take care of such
children, as obligated under the Juvenile Justice Act, till
suitable means of rehabilitation are found or till such children
attain the age of 18 years.

136] We make absolute, the interim orders made in these
petitions, on the basis of which, the petitioners, were permitted
to medically terminate their pregnancies in circumstances
made clear by us, in the said interim orders.

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137] We are conscious that when it comes to laying down
procedures or prescribing safeguards in such matters, the State
and its agencies are much better poised to undertake such an
exercise. We are therefore, of the opinion that the State, in
consultation with various stakeholders, must consider
formulating suitable policies to deal with such cases, more
particularly, when it comes to constitution of Medical Boards to
expeditiously examine pregnant mothers and submit reports to
this Court and the hospitals/clinics where terminations, if
permitted, can take place in safe and hygienic conditions.
Similarly, the State and its agencies, in consultation with
various stakeholder, like the Juvenile Justice Boards and the
CWCs, must also consider formulating suitable policies to deal
with cases of children born alive, despite attempts at medical
pregnancies, including but not restricted to issues of medical
care, adoptions etc. However, since such matters are on the rise
and further since the resolution of such issues brooks no delay,
we have, relying mainly upon the decisions of the Supreme
Court attempted to suggest procedures and safeguards, which,
we propose to follow until the State formulates policies in such
matters. Taking into consideration the nature of such matters
and the necessity of expeditious resolution of such issues, it is
obviously not possible for pregnant mothers to wait until the
formulation of such policies.

138] Accordingly, we dispose of these petitions, with the
following orders:

(a) We hold that a registered medical practitioner may
medically terminate pregnancy which has exceeded 20

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weeks, without permission from the High Court, only
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, which means that
the registered medical practitioner is of the opinion that
unless pregnancy is terminated immediately, the pregnant
woman might succumb (die);

(b) We hold that a registered medical practitioner is not
entitled to terminate pregnancy exceeding 20 weeks,
where such termination is not immediately necessary to
save the life of the pregnant woman i.e. there is no
immediate danger of the pregnant woman succumbing, in
case the pregnancy is not terminated;

(c) We hold that where a pregnant woman, the length of
whose pregnancy has exceeded 20 weeks seeks to
terminate such pregnancy on the ground that its
continuance would involve grave injury to her physical or
mental health or where 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,
such pregnant woman will have to seek permission from
the High Court and unless such permission is granted, no
registered medical practitioner can terminate such
pregnancy, inter alia on the basis of the interpretation of
the provisions in section 5 of the MTP Act;

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(d) We hold that this Court can, in exercise of its extra
ordinary jurisdiction under Article 226 of the Constitution
of India, permit medical termination of pregnancies, the
length of which exceeds twenty weeks, in contingencies
set out in clauses (i) and (ii) of section 3(2)(b) of the MTP
Act, subject no doubt by adherence to the procedures and
the safeguards indicated in this judgment and order;

(e) We direct the State to constitute and establish, as
expeditiously as possible, and in any case within a period
of three months from today, Medical Boards as indicated
in this judgment and order, in each of the districts, to
examine pregnant women and to furnish reports in cases
where permission to medically terminate pregnancy whose
length exceeds twenty weeks, is sought for by institution
of writ petitions in this Court. The Secretary (Health),
Government of Maharashtra, to file affidavit of compliance
on 1st July 2019, in this Court;

(f) We direct the State and /or the District Level
Committees to ensure that there are sufficient approved
places in terms of section 4 (b) of the MTP Act in each of
the districts of State of Maharashtra, where, pregnancies
may be terminated consistent with the provisions of the
MTP Act. We also direct the Chief Medical Officers of each
of districts to undertake periodic inspection of such
approved places as contemplated by Rule 6 of the MTP
Rules, 2003 with a view to verify whether termination of

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pregnancies is being done therein under safe and hygienic
condition and to document and maintain such inspection
reports. The Secretary (Health), Government of
Maharashtra, to file a status report in this regard on 1 st
July 2019 in this Court;

(g) We direct the State to consider formulating a
suitable policy to deal with cases of medical termination of
pregnancies, with special emphasis upon rural areas, so
that, pregnant women have access to safe and hygienic
facilities and there is avoidable wastage of mother's
health, strength and sometimes, life. The Secretary
(Health), Government of Maharashtra, to file a status
report in this regard on 1st July 2019 in this Court;

(h) We hold that where, this Court, in exercise of of its
powers under Article 226 of the Constitution of India has
permitted medical termination of pregnancy and the child
is born alive, then, the registered medical practitioner and
the hospital/clinic concerned will have to assume full
responsibility to ensure that such child is offered best
medical treatment available in the circumstances, in order
that it develops into a healthy child;

(i) We further hold that where, this Court, in exercise
of its powers under Article 226 of the Constitution of India
has permitted medical termination of pregnancy and the
child is born alive, if the parents of such child are not

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willing to or are not in a position to assume the
responsibility for such 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;

(j) We direct the State to consider formulating a
suitable policy to deal with the cases where despite
attempts at medical termination of pregnancy, children
are born alive, so that, such children are offered 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 of the Juvenile
Justice Act. The policy could also address the issue of
adoption of such children. The Secretary (Health) or the
Secretary of the concerned Department, Government of
Maharashtra, to file a status report in this regard on 1 st
July 2019 in this Court;

(k) We make absolute all the interim orders made by us
in these petitions, on the basis of which, the petitioners
were permitted to medically terminate their respective
pregnancies and we reiterate our reasons set out therein;

(l) We express our gratitude to Mr. D.J. Khambatta,
Amicus Curaie , who was ably assisted by Ms Naira

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Jejeebhoy and Mr. Pheroze F. Mehta in these matters. We
also express our gratitude to all the learned counsel and
the learned Government Pleaders who assisted us in these
matters;

(m) Though, these matters are disposed of, the same
may be placed before the appropriate Bench on 8 th July
2019 to consider the affidavits of compliances.

          (M. S. SONAK, J.)                            (A. S. OKA, J.)

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