Marjina & Another vs State Of Punjab & Others

Tejinder Singh Dhindsa, J

Instant writ petition has been filed seeking issuance of directions as regards medical termination of pregnancy of petitioner No.1. Writ petition had come up for preliminary hearing before this Court on 16.09.2019. While issuing notice of motion, the following order was passed:

"On the oral request made by counsel, the Post Graduate Institute of Medical Education and Research, Sector 12, Chandigarh through its Director is impleaded as party respondent No.4.

Registry is directed to carry out the necessary changes in the memo of parties.

Instant writ petition has been filed seeking issuance of directions as regards medical termination of pregnancy of petitioner No.1.

In support of the prayer made in the petition reliance has been placed upon certain documents reflecting investigation in PGI, Chandigarh itself and which would prima facie indicate that the foetus has been diagnosed with a serious kidney condition.

Court has been apprised that in pursuance of a letter dated 14.08.2017 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.

The period of pregnancy in the instant case is stated to be more than 20 weeks and as such the embargo envisaged under Section 3 of the Medical Termination and Pregnancy Act 1971 stares her in the face.

Notice of motion confined to respondents No.1, 2 and 4 at this stage returnable for 20.09.2019.

Mr. Luvinder Sofat, AAG, Punjab accepts notice on behalf of respondents No.1 and 2 and waives service. A complete copy of the writ paper book already stands furnished to him.

Liberty is granted to serve respondent No.4 through Mr. Amit Jhanji, Advocate who otherwise represents PGI Chandigarh in other cases before this Court.

In the meanwhile request is made to the Chairperson of the Permanent Medical Board at PGI to have petitioner No.1 examined during the course of the next two days and to furnish an opinion as regards her prayer for medical termination of pregnancy which is beyond 20 weeks.

A copy of this order be furnished to learned counsel for the petitioners under the signatures of the Bench Secretary." During the course of resumed hearing today, Mr. Amit Jhanji, learned counsel representing respondent No.4/Institute has furnished a report of the Medical Board dated 18.09.2019. Copy of the same is taken on record as Mark 'A'.

Report of the Medical Board reads as follows:

"Report of the Medical Board.

Subject: CWP No.25996 of 2019 titled as Marjina & another Vs. State of Punjab & others in the Hon'ble High Court of Punjab & Haryana at Chandigarh regarding patient Marjina aged 21 years female C.R. No.201905195425.

With reference to the directions received from the Hon'ble Punjab & Haryana High Court dated 16.09.2019 the patient Marjina was medically evaluated by the Permanent Medical Board at PGIMER, Chandigarh on dated 17/09/2019. Following are the observations:

As per the ultrasound done on 17/09/2019 the period of gestation is 23 wks+4 days with single live intrauterine fetus with anhydramnios (absent- no fluid pocket) and bilateral multicystic dysplastic kidneys.

This is a severe congenital anomaly with grave prognosis not compatible with life.

Keeping in view the above, the Permanent Medical Board recommends medical termination of pregnancy at this stage due to bilateral multicystic dysplastic kidneys and absent fluid pocket.

Sd/-

Sd/-

Sd/-

Dr. Ruchita Shah

Dr.Basant Kumar

Dr. Sahajal Dhooria

(Member )

(Member)

(Member)

Sd/-

Sd/-

Sd/-

Dr. Manoj Goyal

Dr. Shefali K. Sharma

Dr. Tulika Singh

(Member)

(Member)

(Member)

Sd/-

Sd/-

Sd/-

Prof. Kanya Mukhopadhyay Prof. Inusha Panigrahi

Prof. Nandita Kakkar

(Member)

(Member)

(Convener)

Sd/-

Sd/-

Sd/-

Prof. Rashmi Bagga

Prof. Y.S. Bansal

Dr. Ranjana Singh

(Chairperson)

(Member)

(Member)"

Prof. Rashmi Bagga Prof. Y.S. Bansal Dr. Ranjana Singh (Chairperson) (Member) (Member)"

Perusal of the report would reveal that Marjina, petitioner No.1 was examined on 17.09.2019 and as per ultrasound done, the period of gestation is 23 weeks+4 days with single with single live intrauterine fetus with anhydramnios and bilateral multicystic dysplastic kidneys. The Board has further opined that the fetus suffers from a severe congenital anomaly with grave prognosis not compatible with life. Accordingly, it has been recommended that medical termination of pregnancy at this stage due to bilateral multicystic dysplastic kidneys and absent fluid pocket be permitted.

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

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

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.

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.

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.

(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."

In the considered view of this Court, 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 PGIMER, Chandigarh, as per report at Mark 'A' is that the foetus is not likely to survive on account of congenital anomaly noticed in the report itself. The Medical Board is chaired by a Doctor none-other the head of the Obstetrics and Gynecology Department. Under such circumstances it would be difficult for this Court to refuse permission to wife of the petitioner to undergo medical termination of pregnancy. 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.

For the reasons recorded above, the writ petition is allowed. The Director, PGIMER, Chandigarh is requested to get the pregnancy of petitioner No.1, namely, Marjina terminated under the supervision of the Head of the Department (Obstetrics and Gynecology), PGIMER, Chandigarh.

Needless to observe that all the necessary facilities for undertaking such procedure be afforded in favour of the patient.

A copy of this order be furnished to counsel for the parties under the signatures of the Bench Secretary to ensure necessary and immediate compliance.

Disposed of.