Mamta vs State Of Haryana & Another

Tejinder Singh Dhindsa, J

Petitioner-Mamta has filed the instant petition praying for issuance of directions to the respondent/PGIMER, Chandigarh as regards medical termination

of her pregnancy.

In support of the prayer made in the petition, reliance was placed upon certain documents reflecting investigation and treatment carried out in PGIMER,

Chandigarh itself and such report has been placed on record at Annexure P-2. The report at Annexure P-2 would prima facie indicate that the foetus

has been diagnosed with a serious heart condition.

Instant petition had come up for hearing on 25.07.2019 and Mr. Jhanji, Advocate had entered appearance on behalf of PGIMER, Chandigarh.

Thereafter matter was taken up for hearing on 26.07.2019 and Dr. Aashima, Assistant Professor, Obstetrics and Gynaecology, PGI, Chandigarh had

come present to assist the Court.

At that stage, this Court was apprised that in pursuance to a letter dated 14.08.2017 received from the Ministry of health and Family Welfare, the

premier tertiary level Government Medical Institutes were called upon to immediately establish the Permanent Medical Board for medical termination of

pregnancy beyond 20 weeks. Dr. Aashima informed the Court that a Permanent Medical Board already stands approved by the Director, PGI,

Chandigarh and stands constituted.

It was under such circumstances that hearing in the instant petition was deferred to today and a request was made to Professor Rashmi Bagga,

Chairperson of the Permanent Medical Board to have the petitioner/ Mamta examined during the course of the day itself and to furnish an opinion as

regards her prayer for medical termination of pregnancy which is beyond 20 weeks.

Petitioner has been examined by the Permanent Medical Board on 26.07.2019 itself and the report has been furnished and which reads as under:

“Report of the Medical Board Subject: CWP-20546-2019 (O&M) Mamta Vs. State of Haryana & another in the High Court of Punjab and Haryana

at Chandigarh regarding patient Mamta 32 years female w/o Rahul Kamboj with CR.No.201904569461.

the patient Mamta W/o Rahul Kamboj was medically evaluated by the Permanent Medical Board at PGIMER, Chandigarh. As per the ultrasound

done on 26/07/2019 she is 21+ weeks pregnant, with single live intrauterine foetus.

Fetal echo done on 24.7.2019 in PGIMER, Chandigarh shows a large inlet ventricular septal defect with a small aorta. This foetus has a poor

neonatal/long term prognosis as this cardiac anomaly cannot be completely repaired or corrected.

The Permanent Medical Board recommends termination of pregnancy at this stage as the foetus is likely to be affected with severe cardiac disease.

Sd/-Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Sd/-

                                     Sd/-

Prof. Y.S. Bansal          Dr. Tulika Singh        Prof.Kanya Mukhopadhyyay

(Member)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

(Member)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â (Member)

Sd/-Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Sd/-

                                    Sd/-

Dr. Manoj Goyal           Dr. Ruchita Shah         Dr. Himanshu Gupta

(Member)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

(Member)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â (Member)

Sd/-Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Sd/-

                                  Sd/-

Dr. Sahajal Dhooria Dr. Anupriya Kaur               Dr. Ranjana Singh

(Member)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

(Member)Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â (Convener)

Sd/-

Prof. Rashmi Bagga

(Chairperson)

Section 3 of the Medical Termination and Pregnancy Act, 1971 reads as follows:

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

(1) 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 this Act.

(2) 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 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 1.-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 2.-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.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account

may be taken to the pregnant woman's actual or reasonable foreseeable environment.

(4) (a) 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 4 [mentally ill

person], shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.â€​

In the considered view of this Court the case of the petitioner would fall under Section 3(2)(b)(ii) but for the time period embargo of 20 weeks. The

clear opinion given by the Permanent Medical Board constituted at PGI, Chandigarh is that the foetus has a large inlet ventricular septal defect with a

small aorta. It has further been opined that the foetus has a poor neonatal/long term prognosis as such cardiac anomaly cannot be completely repaired or

corrected. The Permanent Medical Board has recommended termination of pregnancy at this stage as the foetus is likely to be affected with severe

cardiac disease.

In the circumstances of the present case, it would be difficult for this Court to refuse permission to the petitioner to undergo medical termination of

pregnancy. The medical expert opinion clearly indicates that the foetus if allowed to be born would have grim chances of survival. There would be no

basis for this Court not to accept the recommendations made by the Permanent Medical Board and the constitution of which was approved by the

Director, PGIMER, Chandigarh.

In taking such a view, this Court would draw support from the judgment of the Hon'ble Supreme Court in Tapasya Umesh Pisal Vs. Union of India &

others, (2018) 12 (SCC) 57, wherein also a prayer for medical termination of pregnancy had been allowed in the 24th week of pregnancy and the foetus

having been diagnosed with a heart ailment called

'Tricuspid and Pulmonary Atresia'. Even a Coordinate Bench of this Court in Parmjeet Kaur & another Vs. State of Punjab & another (CWP- 2181-

2018, decided on 07.02.2018) had permitted medical termination of pregnancy in the 24th week in a case where the foetus was diagnosed to be suffering

from a 'Neurological Disorder'.

For the reasons recorded above, the writ petition is allowed. The Director, PGIMER, Chandigarh is requested to get the pregnancy of petitioner

terminated under the supervision of the head of the Department (Obstetrics and Gynaecology), PGIMER, Chandigarh.

A copy of this order be given to learned counsel for the parties under the signatures of the Bench secretary to ensure necessary and immediate

compliance.

Disposed of.