AND ANOTHER v. THE STATE OF MAHARASHTRA THROUGH SECRETARY AND ANOTHER
Case Details
11614.23wp (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 1111 WRIT PETITION NO.11614 OF 2023 XYZ, UNDER GUARDIAN OF HER PARENTS i.e. PETITIONER. NO 2 AND ANOTHER VERSUS THE STATE OF MAHARASHTRA THROUGH SECRETARY AND ANOTHER …. Mrs Shilpa L. Awachar, Advocate for Petitioners; Mr P. K. Lakhotiya, A.G.P. for Respondents CORAM : RAVINDRA V. GHUGE AND Y. G. KHOBRAGADE, JJ. DATE : 15th September, 2023 PER COURT: 1. On 14/09/2023, we had passed the following order :-
Legal Reasoning
The victim is 13 years old. Since she 1. disappeared on 05.09.2023, her father lodged an FIR bearing No. 0273/2023 with Paithan Police Station. Subsequently, she was traced out on 07.09.2023 and she has tendered a statement to the Investigating Officer that she left her home along-with the accused. Since she was promised marriage, she resided with him for 4 months. This Petition is filed for seeking permission 2. under the Medical Termination of Pregnancy Act, 1971 for terminating the pregnancy of the victim which is beyond 24 weeks as on 10.09.2023, as set out in a report signed by Respondent No. 2- Government Medical College and Hospital, Aurangabad. 11614.23wp (2) In view of the above, we direct the Medical 3. Board available with the Government Medical College and Hospital, Aurangabad to medically examine the victim, who will be accompanied by her mother, on 15.09.2023 at 08.00 a.m. 4. before us on the same day i.e. on 15.09.2023 at 2.30 p.m. Let the medical examination report be placed We expect the Medical Board to opine as 5. regards the risk involved if the procedure for medical termination of pregnancy is to be resorted to and also express a view as to whether, a live child is likely to be born. 6. Stand over to 15.09.2023 at 2.30 p.m.” 2. The victim is 13 years and 2 months old. She had disappeared on 05/09/2023 and her father lodged the First Information Report. She was traced out after four months and it was revealed, as per the statement given by her to the Police, that she had eloped with her boyfriend and they had stayed together for four months. After she was traced out by the Police, that she was brought back home and in the light of the First Information Report, her statement was recorded. 3. The medical report dated 05/03/2023 reads as under :- “Additional Investigations (if done): 11614.23wp (3) S.N. 1 2 Investigations done USG obstetrics anomaly scan Urine CBC, routine Key findings Single live intrauterine pregnancy of 27 weeks 5 days gestation. Effective fetal weight 923+/- 138 grams with no significant anomaly detected in present scan. HB-10.0 gm, PCV 30%, TLC 7600, PLATELET 3.04 Lac/mm, urine routine normal Opinion by Medical Board for termination of pregnancy: a) b) Allowed by Denied Denied Justification for the decision: • . Survivor is minor & pregnancy is due to sexual assault In order to prevent grave injury to the physical & mental health of teenage pregnant women There is possibility of a surgical intervention (hysterotomy) and other unforeseen risks involved in termination of pregnancy. Members of the Medical Board who reviewed the case: Name S. N. 1 2 3 4 5 Name Designation Specializatio Signature
Legal Reasoning
Shrinivas N. Dr. Gadappa Professor with HOD Dr. Anurag Sonawane Asso. Dr. Sachin Bodhgire Dr. Rahul Bhute Dr. Ganesh Nikam Professor Assist. Professor Assist. Professor Asso. Professor n Nodal Officer MTP Committee (OBGY Dept.) OBGY Department Pediatrics Department Radiology Department Anaesthesia Department 11614.23wp (4) 6 Dr. Jyoti More Senior Resident Psychiatry Department 4. The Medical Board has opined that the termination can be allowed. There is a possibility of a surgical intervention (hysterotomy) and other unforeseen risks involved in termination of pregnancy. The said report is taken on record and marked as ‘X’ for identification. 5. The learned A.G.P. submits that in the light of the judgment of the Hon’ble Supreme Court in Civil Appeal No.5802/2022 (X. Vs. the Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.), dated 29/09/2022, the termination of pregnancy will have to be allowed. There is a method of bringing the ‘beating heart’ of the foetus to ‘rest’, which would result in the stopping of the heart and thereafter, a particular procedure is followed for the expulsion of the contents of the womb. He points out the following aspects as a part of the termination of pregnancy :- “In addition, the following issues may also be addressed while counselling girl/women seeking termination on grounds of foetal abnormality, 11614.23wp (5) 1. The nature of the abnormality in the foetus. She must also be apprised of the risk abnormality in existing siblings or future pregnancies. 2. The required tests on the foetus post termination depending on the foetal abnormality. b. Preparatory activities:- 1. Take written consent from the girl/woman or guardian in case of minor or person with mental disability. 2. Confirm her physical fitness by taking detailed history and conducting a physical examination. 3. The investigations listed below should be undertaken and mechanism should be in place for quick turn-around of reports to avoid delay in service delivery. Haemoglobin, blood group, complete blood count, . blood sugar, blood urea must be tested. Any other test depending on maternal history must be . conducted. Pre-anaesthesia check-up for fitness for termination . procedure/surgery must be done. The Board should report all the activities performed for conducting the MTP. c. Stopping foetal heart beat:- In cases of pregnancy over 24 weeks of gestation, an ultrasound guided procedure may be required so that foetus is not expelled/delivered alive. This is a skilled procedure and must be performed by an experienced Obstetrician or 11614.23wp (6) Foetal Medicine expert only. The Royal College of Obstetricians and Gynaecologists (RCOG) recommend 2-3 ml of strong (15%) potassium chloride (KCI) injection in the foetal heart prior to termination. A repeat injection may be required if asystole has not occurred after 30-60 seconds. Asystole should be observed for at least two minutes and foetal demise should be confirmed by ultrasound scan after 30-60 minutes.' This procedure whenever contemplated need be clearly mentioned in the recommendation or report of the Medical Board to Hon'ble Court.” (Emphasis supplied) 6. One of the members of the Board Dr. Anurag Sonawane, Asso. Professor, is present in the Court and submits that the Board/Doctors are trained to terminate the pregnancy by following the above procedure. 7. In view of the statement of Board and the insistence of the parents of the victim who is 13 years of age, we permit the Board to proceed to terminate the pregnancy in a manner as is prescribed. Needless to state, the D.N.A. sampling of the child in the womb would be necessary and the Station House Officer/Investigating Officer of the Paithan Police Station, in relation to the First Information Report No.0273/2023 shall be informed by the Dean of the Government Medical College, 11614.23wp (7) Aurangabad. The D.N.A. test sampling would be forwarded to the Forensic Laboratory by the Investigating Officer and the report would be submitted to the Investigating Officer. 8.
Decision
This Writ Petition is disposed off. (Y. G. KHOBRAGADE, J.) sjk (RAVINDRA V. GHUGE, J.)