Abortion to be permitted if the pregnancy would lead to grave injury to the mental health of the pregnant woman along with the consideration of her actual or reasonable foreseeable environment : Bombay High Court

 on 17 08 2021 on 17 08 WPL15599_21.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITIONNO.15599 OF 2021Sidra Mehboob Shaikh alias Sunita Raja Pramanik...PetitionerVs.State of Maharashtra and another...RespondentsMs Aditi Saxena a w. Ms Rachita Padwal for Petitioner.Ms Uma Palsuledesai AGP for Respondent No.1 State.Ms Purnima Awasthi for Respondent No.2. CORAM : UJJAL BHUYAN &MADHAV J. JAMDAR JJ.DATE :AUGUST 03 2021JUDGMENT and ORDER :of the MedicalTermination of Pregnancy Act 1971she submits thata pregnancy may be terminated if continuance of the same wouldinvolve a risk of grave injury to the physical or mental health of thepregnant woman. This provision has to be read in conjunction with sub sectionof section 3 which mandates that in determining whether thecontinuance of a pregnancy would involve such risk of injury to healthas is mentioned in sub sectionaccount may be taken of the pregnantwoman’s actual or reasonable foreseeable environment. According toher these provisions are required to be read into sub sectionofsection 5 to make the provisions of the Act meaningful and reflective ofthe ground realities. Her submission is that the legislative intent is for aliberal and purposive interpretation and not a literal interpretation of theprovisions of the statute so as to serve the objective of the Act.6.3.Learned counsel for the petitioner has referred to and placedreliance on a number of judgments of the Supreme Court as well as ofthis Court in support of her submissions which will be adverted to in thecourse of the judgment.7.Per contra Ms. Palsuledesai learned AGP has relied upon thereport of the medical board dated 27.07.2021 and submits that medicalopinion is quite clear and unambiguous. As per the medical opinion petitioner does not suffer from mental illness. All that she suffers is anemotional distress due to marital discord which can be overcome withthe aid of marital counselling. For that reason medical termination ofpregnancy is not required.3 21 on 17 08 2021 on 17 08 WPL15599_21.doc7.1.Learned AGP has referred to explanation 2 to section 3 of the Actand submits that the legislature has clearly indicated as to what wouldconstitute grave injury to the mental health of the pregnant woman. Thesaid provision has to be construed strictly. Dwelling upon the languageof the said provision she submits that if there is failure of any device ormethod used by any married woman or her husband for the purpose oflimiting the number of children the anguish caused by such unwantedpregnancy may be presumed to constitute a grave injury to the mentalhealth of the pregnant woman. Legislature has not indicated that adomestic dispute or a case of domestic violence may be presumed toconstitute grave injury to the mental health of the married pregnantwoman enabling her to have a right to terminate her pregnancy. In thisconnection she has emphasized on the concept of dominant stateinterest which should be taken into consideration by the Court whileconsidering a prayer by a pregnant woman for termination of pregnancyon the ground that continuation thereof would be prejudicial to hermental health as she suffers from domestic violence. According to her termination of pregnancy can be allowed only if all the conditionsmentioned in the Act are met. Termination of pregnancy because ofmarital discord or domestic violence is not a ground mentioned in theAct. She therefore submits that leave may not be granted to thepetitioner for undergoing medical termination of the pregnancy and thatthe writ petition should be dismissed.8.Ms. Awasthi learned counsel for respondent No.2 supports thesubmissions made by Ms. Palsuledesai. On a query by the Court shesubmits that though the Medical Termination of Pregnancy(Amendment) Act 2021 has been published in the Gazette of India thesame has not yet been notified by the central government andaccordingly it has not yet come into force. However she fairly submitsthat various Courts have taken note of the amendments brought in by theAmendment Act.4 21 on 17 08 2021 on 17 08 WPL15599_21.doc9.Submissions made by learned counsel for the parties havereceived the due consideration of the Court.10.The Medical Termination of Pregnancy Act 1971has been enacted to provide for the terminationof certain pregnancies by registered medical practitioners and for mattersconnected therewith or incidental thereto. As per the statement of objectsand reasons provisions regarding termination of pregnancy in the IndianPenal Code have virtually become otiose. Abortion was considered orlooked at primarily from the prism of an offence. With expansion andimprovement of health services doctors were often confronted withgravely ill or dying pregnant women requiring operation. Therefore toliberalise existing provisions relating to termination of pregnancy theaforesaid Act was conceived as a health measure to mitigate thefollowing: where there is danger to the life or risk to physical or mentalhealth of the woman on humanitarian grounds such as when pregnancy arises from asex crime and on eugenic grounds where there is substantial risk that the child if born would suffer from deformities and diseases.11.Section 3 of the Act deals with situations when pregnancies maybe terminated by the registered medical practitioners. Section 3 isextracted hereunder:“3. When pregnancies may be terminated by registeredmedical practitioners. Notwithstanding anything containedin the Indian Penal Codea registered medicalpractitioner shall not be guilty of any offence under that Codeor under any other law for the time being in force if anypregnancy is terminated by him in accordance with theprovisions of this Act.(2)Subject to the provisions of sub sectiona pregnancymay be terminated by a registered medical practitioner account may be taken to the pregnantwoman s actual or reasonable foreseeable environment.(4)(a) No pregnancy of a woman who has not attained the ageof eighteen years or who having attained the age of eighteenyears is ashall be terminated except withthe consent in writing of her guardian. no pregnancyshall be terminated except with the consent of the pregnantwoman.”12.On the other hand section 4 deals with the place wherepregnancy may be terminated.13.Section 5 of the Act enumerates the situations when sections3 and 4 would not apply. Section 5 is reproduced hereunder:“5. Sections 3 and 4 when not to apply. The provisions ofsection 4 and so much of the provisions of sub sectionofsection 3 as relate to the length of the pregnancy and the6 21 on 17 08 2021 on 17 08 WPL15599_21.docopinion of not less than two registered medical practitioners shall not apply to the termination of a pregnancy by aregistered medical practitioner in a case where he is of opinion formed in good faith that the termination of such pregnancy isimmediately necessary to save the life of the pregnant woman.(2)Notwithstanding anything contained in the Indian PenalCodethe termination of pregnancy by a personwho is not a registered medical practitioner shall be an offencepunishable with rigorous imprisonment for a term which shallnot be less than two years but which may extend to seven yearsunder that Code and that Code shall to this extent standmodified.(3)Whoever terminates any pregnancy in a place other thanthat mentioned in section 4 shall be punishable with rigorousimprisonment for a term which shall not be less than two yearsbut which may extend to seven years.(4)Any person being owner of a place which is notapproved under clauseof section 4 shall be punishable withrigorous imprisonment for a term which shall not be less thantwo years but which may extend to seven years.Explanation 1. For the purposes of this section theexpression "owner" in relation to a place means any personwho is the administrative head or otherwise responsible for theworking or maintenance of a hospital or place by whatevername called where the pregnancy may be terminated underthis Act.Explanation 2. For the purposes of this section so muchof the provisions of clauseof section 2 as relate to thepossession by registered medical practitioner of experience ortraining in gynaecology and obstetrics shall not apply.”14.At this stage we may mention that Parliament has enacted theMedical Termination of PregnancyAct 2021. As persection 3 of the Amendment Act sub sectionis being substituted inthe following manner: "(2)Subject to the provisions of sub sectiona pregnancymay be terminated by a registered medical practitioner —(a) where the length of the pregnancy does not exceedtwenty weeks if such medical practitioner is orwhere the length of the pregnancy exceeds twentyweeks but does not exceed twenty four weeks in case ofsuch category of woman as may be prescribed by rulesmade under this Act if not less than two registered medical7 21 on 17 08 2021 on 17 08 WPL15599_21.docpractitioners are of the opinion formed in good faith that—(i)the continuance of the pregnancy would involve arisk to the life of the pregnant woman or of grave injury toher physical or mental health or(ii)there is a substantial risk that if the child wereborn it would suffer from any serious physical or mentalabnormality.Explanation 1.—For the purposes of clausewhereany pregnancy occurs as a result of failure of any device ormethod used by any woman or her partner for the purposeof limiting the number of children or preventingpregnancy the anguish caused by such pregnancy may bepresumed to constitute a grave injury to the mental healthof the pregnant woman.Explanation 2.—For the purposes of clausesandwhere any pregnancy is alleged by the pregnant woman tohave been caused by rape the anguish caused by thepregnancy shall be presumed to constitute a grave injury tothe mental health of the pregnant woman.(2A) The norms for the registered medical practitionerwhose opinion is required for termination of pregnancy atdifferent gestational age shall be such as may be prescribedby rules made under this Act.The provisions of sub sectionrelating to thelength of the pregnancy shall not apply to the terminationof pregnancy by the medical practitioner where suchtermination is necessitated by the diagnosis of any of thesubstantial foetal abnormalities diagnosed by a MedicalBoard.Every State Government or Union territory as thecase may be shall by notification in the Official Gazette constitute a Board to be called a Medical Board for thepurposes of this Act to exercise such powers and functionsas may be prescribed by rules made under this Act.(2D) The Medical Board shall consist of the following namely:—of sub section(2) of section 3 the length of pregnancy allowed to be terminated hasbeen extended to 20 weeks and as per clauseof sub sectionthelength of pregnancy has been extended to 24 weeks.14.2.Before proceeding further we may also mention that section 2(b)defines ‘mentally ill person’ to mean a person who is in need oftreatment by reason of any mental disorder other than mental retardation.14.3.From a reading of sub sectionof section 3 we find that apregnancy may be terminated by a registered medical practitioner withinthe stipulated period if continuance of the pregnancy would involve arisk to the life of the pregnant woman or of grave injury to her physicalor mental health. Sub sectionsays that in determining whethercontinuance of a pregnancy would involve such risk of injury to thehealth as is mentioned in sub sectionaccount may be taken of thepregnant woman’s actual or reasonable foreseeable environment.Pausing here for a moment we are of the view that while examining theexpression ‘mental health’ of a pregnant woman it is also necessary totake note of such woman’s actual or reasonable foreseeableenvironment. In other words while construing grave injury to the mentalhealth of the pregnant woman what is also required to be taken intoconsideration is the actual or reasonable foreseeable environmentsurrounding the pregnant woman. While examining the same certainlysocial and economic factors which may confront the pregnant womanpresently or in the near future are important and relevant considerations.14.4.That apart though section 2(b) defines ‘mentally ill person’ whatfinds mention in section 3(2)(b)(i) is ‘mental health’ which expression isnot defined in the Act. As noticed above ‘mentally ill person’ has beendefined to mean a person who is in need of treatment by reason of any9 21 on 17 08 2021 on 17 08 WPL15599_21.docmental disorder other than mental retardation. In other words a personwho suffers from any mental disorder other than mental retardation andwho is in need of treatment would be construed to be a mentally illperson. But what then do we mean when we say mental health Asalready mentioned under the Act ‘mental health’ is not a definedexpression. We therefore would have to look into its meaning as isunderstood in common parlance. World Health Organizationhasdefined ‘mental health’ as a state of well being in which every individualrealizes his or her own potential can cope with the normal stresses oflife can work productively and fruitfully and is able to makecontribution to his or her community. In other words mental health ismore than not having any symptoms of mental illness its being able todeal robustly with life’s challenges. Many individuals with poor mentalhealth may not be formally diagnosed with any mental illness. Mentalstate of a person is a continuum with good mental health being at oneend and diagnosable mental illness at the opposite end. Therefore mental health and mental illness although sound similar are not thesame.14.5. C.E.S.C. Limited Vs. Subhash Chandra Bose 1 SCC 441was a case relating to labour law. The question which came up forconsideration before the Supreme Court was whether the right of theprincipal employer to reject or accept work on completion onscrutinizing compliance with the job requirements as accomplished by acontractor the immediate employer through his employees is in itselfan effective and meaningful ‘supervision’ as envisaged under section2(9) of the Employees’ State Insurance Act 1948. Justice K.Ramaswamy in his dissenting opinion dwelt on the term ‘health’ andobserved that the term ‘health’ implies more than an absence of sickness.In the context of that case he observed that medical care and healthfacilities not only protect against sickness but also ensures stablemanpower for economic development. He proceeded to hold thatmedical facilities are part of social security which would yield10 21 on 17 08 2021 on 17 08 WPL15599_21.docimmediate return in the increased production or at any rate reduceabsenteeism on grounds of sickness etc. But what is of relevance to us isthe description of health as a state of complete physical mental andsocial well being and not merely the absence of disease or infirmity.Maintenance of health is a most imperative constitutional goal whoserealisation requires interaction of many social and economic factors.14.6.Therefore mental health is more than just the absence of mentaldisorders or illness. Mental health is a state of well being in which anindividual realizes his or her own potential can cope with the normalstresses of life can work productively and is able to contribute to his orher community. When we say that a person is in good mental health itwould mean that he is mentally equipoised or is at a mental equilibrium.Thus from the above analysis we can safely say that the expression‘mental health’ is a wider concept encompassing within its fold theexpression ‘mental illness’. In that context we may say that theLegislature has consciously used the expression ‘mental health’ insection 3(2)(b)(i) in contradistinction to the expression ‘mental illness’or ‘mentally ill person’.14.7.Sub sectionof section 5 does not provide for any time limitfor termination of pregnancy. It says that provisions of sub sectionofsection 3 in so far it relates to length of pregnancy and opinion of notless than two registered medical practitioners shall not apply to thetermination of pregnancy by a registered medical practitioner in a casewhere he is of opinion formed in good faith that the termination of suchpregnancy is immediately necessary to save the life of the pregnantwoman.15.At this stage we would like to take note of the submission oflearned AGP according to whom provisions of the Act are required to bestrictly construed. Since she has referred to explanation 2 to section 3 let us briefly analyze the same. But before that let us advert to11 21 on 17 08 2021 on 17 08 WPL15599_21.docexplanation 1 as per which in a case where pregnancy is alleged by thepregnant woman to have been caused by rape the anguish caused bysuch pregnancy shall be presumed to constitute a grave injury to themental health of the pregnant woman. Rape is an instance of extremesexual violence on a woman. Domestic violence is also violencecommitted on a woman though the degree may be lesser. As perexplanation 2 to section 3 where any pregnancy occurs as a result offailure of any device or method used by any woman or her husband forthe purpose of limiting the number of children the anguish caused bysuch unwanted pregnancy may be presumed to constitute a grave injuryto the mental health of the pregnant woman. Like explanation 1 explanation 2 is also indicative. It indicates that even in a case of failedcontraception the anguish it may cause for the unwanted pregnancy maybe presumed to constitute a grave injury to the mental health of thepregnant woman. If contraception failure leading to pregnancy can bepresumed to constitute grave injury to the mental health of the pregnantwoman can it be said that a pregnant woman suffering from domesticviolence would not face grave injury to her mental health if pregnancy isallowed to continue in the face of continuing domestic violence with agrim foreseeable future 16.In XYZ Vs. Union of India 2019Bom.C.R. 400 a DivisionBench of this Court held that the provisions of the Act has to be given apurposive interpretation. Division Bench has opined that for thepurposes of section 3(2) of the Act the expression ‘grave injury to themental health’ is used in a liberal sense by the legislature itself. Further for determining whether continuance of pregnancy would involve risk ofinjury to mental health of the pregnant woman account may be taken ofthe pregnant woman’s actual or reasonable foreseeable environment. Infact the aspect of a pregnant woman’s actual or reasonable foreseeableenvironment has greater nexus to the aspect of mental health ascompared to physical health. Division Bench proceeded to hold that thislegislative liberality when it comes to expanding the concept of grave12 21 on 17 08 2021 on 17 08 WPL15599_21.docinjury to mental health cannot evaporate no sooner the ceiling of 20weeks prescribed in section 3(2)(b) of the Act is exceeded. If theexpression ‘life’ in section 5(1) of the Act is not to be confined to merephysical existence or survival then permission will have to be grantedunder section 5(1) of the Act for medical termination of pregnancywhich may have exceeded 20 weeks if the continuance of suchpregnancy would involve grave injury to the mental health of thepregnant woman.17.WHO has defined reproductive rights as those rights which arebased on the recognition of the basic right of all individuals and couplesparticularly the women to decide freely and responsibly the number spacing and timing of their children to have the information and themeans to do so and includes the right to attain the highest standard ofsexual and reproductive health. Reproductive rights also include theright of the woman to take a decision concerning reproduction free ofdiscrimination coercion and violence. Coercion and violence need notalways be physical. It can be deduced from surrounding circumstances.Thus reproductive rights are legal rights associated with accompanyingfreedoms relating to reproduction and reproductive health. Women’sreproductive rights may include the right to legal and safe abortion theright to birth control freedom from coerced sterilization andcontraception the right to access good quality reproductive health careand the right and access to education in order to make free and informedreproductive choice. Therefore the core issue is the control a woman hasor exercises over her own body and reproductive choice. Control overreproduction is a basic need and a basic right of all women. Linked as itis to women’s health and social status it is from the perspective of poorwomen or women of rural areas that this right can be best understood.18.In Suchita Srivastava Vs. State 9 SCC 1 Supreme Courtexpressed the view that the right of a woman to have reproductivechoice is an insegragable part of her personal liberty as envisaged under13 21 on 17 08 2021 on 17 08 WPL15599_21.docArticle 21 of the Constitution of India. She has a sacrosanct right to herbodily integrity.19.Supreme Court in X Vs. Union of India 14 SCC 382considered the aforesaid provision and observed that the said provisiondeals with termination of pregnancies of different durations and theprocedure contemplated thereof. Supreme Court in the said case onperusal of Section 5 observed that termination of pregnancy which isnecessary to save the life of the pregnant woman is permissible.20.In that case Supreme Court considered the report of the medicalboard which recorded a finding that the risk to the petitioner ofcontinuation of her pregnancy of 24 weeks could gravely endanger herphysical and mental health. In the light of the above Supreme Court wassatisfied that it was permissible to allow the petitioner to terminate herpregnancy which was in the 24th week in terms of section 5 of the Act. Inview thereof liberty was granted to the petitioner to terminate herpregnancy if she was so advised.21.In Sarmishtha Chakraborty Vs. Union of India 13 SCC339 Supreme Court was again confronted with the prayer made by thepetitioners husband and wife for constituting medical board to assessthe pregnancy of the wife and directing termination of the pregnancy after the pregnancy had crossed the outer limit of 20 weeks. In that case Supreme Court considered the report of the medical board whichrevealed that the mother i.e. petitioner wife would suffer mental injury ifthe pregnancy was continued and there would be multiple problems ifthe child was born alive. Medical board had arrived at the conclusionthat in a special case of that nature pregnancy should be allowed to beterminated even after 20 weeks. In the fact situation of that case Supreme Court directed medical termination of pregnancy of thepetitioner wife.14 21 on 17 08 2021 on 17 08 WPL15599_21.doc22.This issue cropped up again before the Supreme Court in A Vs.Union of India 4 SCC 75. In that case also petitioner sought fora direction to allow her to undergo medical termination of her pregnancybeyond 20 weeks as she apprehended danger to her life when shediscovered that her fetus was diagnosed with severe defects which wereuntreatable and certain to cause the infant’s death during or shortly afterbirth which was also likely to endanger the mother’s life. Afterevaluation of the report submitted by the medical board which stated thatpetitioner was in her 25th 26th week of pregnancy Supreme Courtpermitted the petitioner to undergo medical termination of herpregnancy.23.In High Court on its Own Motion Vs. State of Maharashtra 2017Cri.L.J. 218 a Division Bench of this Court held that a womanirrespective of her marital status can be pregnant either by choice or itcan be an unwanted pregnancy. Unwanted pregnancy wouldundoubtedly affect her mental health as there are social financial andother aspects immediately attached to the pregnancy. The above decisioncame on the backdrop of jail visit by a judicial officer where she foundone inmate giving a requisition for obtaining permission to terminate herpregnancy on the ground that it would be very difficult for her tomaintain and take care of her five month old child if she gives birth toanother child. It was in that context the Division Bench held asfollows: “13.A woman irrespective of her marital status can bepregnant either by choice or it can be an unwanted pregnancy. Tobe pregnant is a natural phenomenon for which woman and manboth are responsible. Wanted pregnancy is shared equally however when it is an accident or unwanted then the man maynot be there to share the burden but it may only be the woman onwhom the burden falls. Under such circumstances a questionarises why only a woman should suffer. There are social financial and other aspects immediately attached to thepregnancy of the woman and if pregnancy is unwanted it canhave serious repercussions. It undoubtedly affects her mentalhealth. The law makers have taken care of helpless plight of awoman and have enacted Section 3(2)(b)(i) by incorporating thewords "grave injury to her mental health". It is mandatory on the15 21 on 17 08 2021 on 17 08 WPL15599_21.docregistered medical practitioner while forming opinion ofnecessity of termination of pregnancy to take into accountwhether it is injurious to her physical or mental health. Whiledoing so the woman s actual or reasonable foreseeableenvironment may be taken into account.14.A woman s decision to terminate a pregnancy is not afrivolous one. Abortion is often the only way out of a verydifficult situation for a woman. An abortion is a carefullyconsidered decision taken by a woman who fears that the welfareof the child she already has and of other members of thehousehold that she is obliged to care for with limited financialand other resources may be compromised by the birth of anotherchild. These are decisions taken by responsible women who havefew other options. They are women who would ideally havepreferred to prevent an unwanted pregnancy but were unable todo so. If a woman does not want to continue with the pregnancy then forcing her to do so represents a violation of the woman sbodily integrity and aggravates her mental trauma which wouldbe deleterious to her mental health.”23.1.Proceeding further the Division Bench observed that pregnancytakes place within the body of a woman and has profound effects on herhealth mental well being and life. How she wants to deal with suchpregnancy is a decision she alone can make. The right to control thebody fertility and motherhood should be left to the woman alone. In sofar the provision of section 3(2)(b)(i) is concerned the Division Benchheld that the said provision is an extension of the human right of awoman which needs to be protected. The right of exercise ofreproductive choice though restricted by the Act also recognizes andprotects her right to say no to the pregnancy if her mental or physicalhealth is at stake.24.This judgment was also referred to and discussed at length in thelater judgment of this Court in XYZ Vs. Union of Indiaand section 5 ofthe Act. Rather the principle of liberal or purposive interpretation is tobe adopted. On such interpretation Supreme Court has consistentlypermitted medical termination of pregnancies which had exceeded the16 21 on 17 08 2021 on 17 08 WPL15599_21.docceiling of 20 weeks where continuance of pregnancy involved graveinjury to the mental health of the pregnant woman or where there wassubstantial risk that if the child were born it would suffer from suchphysical or mental abnormalities as to be seriously handicapped. On thequestion of compelling state interest the Division Bench in paragraph 91clarified that the issue of compelling state interest can perhaps arise in acase where circumstances set out in clausesandof section 3(2) ofthe Act do not exist and yet the pregnant mother seeks medicaltermination of pregnancy whether within or beyond the ceiling limit.Division Bench further noted that the Act lays great emphasis on thegrave injury to not just the physical but also to the mental health of thepregnant woman. The expression grave injury to her mental health hasto be liberally construed and while so construing account may be takenof the pregnant woman s actual or reasonable and foreseeableenvironment. Referring to section 3(3) of the Act this Court held that theexpression pregnant woman s actual or reasonable foreseeableenvironment is particularly relevant when it comes to dealing with casesof women from rural areas or rural background. Provisions of the Acthave to be so construed so as not to impose any unreasonable ordisproportionate burden on pregnant women who on account ofcircumstances set out in clausesandof section 3(2)(b) of the Actseek medical termination of pregnancy even though the ceilingprescribed may have crossed. This Court held that in exercise of itsextraordinary jurisdiction under Article 226 of the Constitution of India it can permit petitioners to undergo medical termination of theirpregnancies in contingencies set out in clausesandof section 3(2)(b) of the Act even though the length of such pregnancies may haveexceeded 20 weeks in certain circumstances and contingencies certainlyinclude grave injury to mental health. The grant or refusal of suchpermission will be governed by varied factors including but notrestricted to the opinion of the medical board.25.In Shaikh Ayesha Khatoon Vs. Union of India reported in317 21 on 17 08 2021 on 17 08 WPL15599_21.docBom.C.R. 399 a Division Bench of this Court took the view that thefreedom of a pregnant woman of making a choice of reproduction whichis an integral part of personal liberty whether to continue with thepregnancy or otherwise cannot be taken away. Noting that the legislaturehas widened the scope of termination of pregnancy by including injuryto mental health of the pregnant woman it was held that if continuanceof pregnancy is harmful to the mental health of a pregnant woman thenthat is a good and legal ground to allow termination of pregnancy if allthe conditions incorporated in legal provisions are met. Provisions ofsection 5 of the Act would have to be interpreted in a manner thatadvances the cause of justice.26.In a recent judgment of this Court in Siddhi Vishwanath ShelarVs. State of Maharashtra decided on 02.06.2020 petitioner hadapproached this Court seeking permission to undergo medicaltermination of pregnancy contending that it would be extremely difficultfor her to carry the pregnancy to its full term along with the stigma ofbeing an unwed mother. It was also contended that it would be difficultfor her to maintain the child on account of her poor financial backgroundand lack of mental support besides not being mentally ready to be amother at that stage. While granting the prayer of the petitioner in thatcase this Court held that compelling state interest though is quite aweighty consideration the same cannot be stretched to extreme extentwhen continuance of pregnancy beyond 20 weeks would involve a graveinjury to the mother s physical or mental health. Scheme of the Actplaces the interest of the mother on a higher pedestal than the interest ofthe prospective child. It has been held as under: “90. In so far as the aspect of ‘compelling State interest’ isconcerned again no doubt this is quite a weightyconsideration. But such consideration cannot be stretchedto some extreme extent by insisting that the State hascompelling interest even in saving a pregnancy where thepotentiality of human life is almost extinct or where thechild if born were to suffer from such physical or mentalabnormalities as to be seriously handicapped. Similarly there can also be no compelling State interest in insisting18 21 on 17 08 2021 on 17 08 WPL15599_21.docupon continuance pregnancy beyond 20 weeks where itwould involve a grave injury to the mother’s physical ormental health. The scheme of the MTP Act even otherwise places the interests of a mother on a higher pedestal than theinterests of a prospective child. This is based on the logicthat the fetus cannot have independent extra uterineexistence and the life of the mother who independentlyexits is entitled to greater consideration.”27.Having surveyed the relevant legal provisions and the case laws let us revert back to the facts of the present case.28.It is not disputed that petitioner is a victim of domestic violencefor which she has initiated appropriate proceedings. She is also seekingdivorce from the husband. She has pleaded that in the event the child isborn she would not receive the financial and emotional support of herhusband and in the absence thereof it would be difficult for her to raisethe child as she does not have any source of income.29.In so far the medical opinion is concerned the medical board ofGrant Government Medical College and Sir J. J. Group of Hospitals Mumbai comprised of four doctors Dr. Preeti Frank Lewis Associate Professor and Head of Unit Department of Obstetrics &Gynaecology Dr. Bela Verma Professor and Head Department ofPediatrics Dr. V. P. Kale Professor and Head Department ofPsychiatry andDr. Shilpa Domkundwar Professor and Head Department of Radiology.29.1.In her observations Dr. Preeti Frank Lewis recorded thatpetitioner was diagnosed with adjustment disorder with mixed anxietyand depressed mood at Cooper Hospital in July after her pregnancy wasconfirmed. However she has not given any individual opinion eitherrecommending or not recommending medical termination of pregnancy.29.2.According to Dr. Bela Verma if the pregnancy is continued toterm it can have normal outcome of baby but considering the mental19 21 on 17 08 2021 on 17 08 WPL15599_21.docstate of the mother proceeding with the pregnancy may jeopardize hermental health. She therefore opined that medical termination ofpregnancy can be done with due risk explained to the petitioner.29.3.As per Dr. V. P. Kale petitioner is suffering from emotionaldistress due to marital discord though she does not suffer from mentalillness at present. The distress on account of marital discord can beovercome through marital counseling. Besides there is no psychiatricindication for medical termination of pregnancy.29.4.Dr. Shilpa Domkundwar after examination of the petitioner recorded her impression that the fetus had no lethal congenital anomaly.29.5.In the above circumstances the medical board opined that it isadvisable to continue with the pregnancy further clarifying that it isbeyond the authority of the committeeto opine on anyother cause apart from medical cause with regard to termination ofpregnancy.30.We have given our careful consideration to the opinion of themedical board. As we have discussed above though the expression‘mental illness’ is defined in the Act in section 3(2)(b)(i) the legislaturehas not used the words ‘mental illness’ but has used the expression‘mental health’. Coupled with the provisions of sub sectionofsection 3 what is required to be seen or examined is whether continuanceof the pregnancy would lead to grave injury to the mental health of thepregnant woman and while determining the same the pregnant woman’sactual or reasonable foreseeable environment is required to be taken noteof.31.We have before us a married pregnant woman who says that she issuffering from domestic violence repeatedly. She has filed policecomplaint complaining against violence meted out to her by herhusband besides lodging complaint before the competent magistrate20 21 on 17 08 2021 on 17 08 WPL15599_21.docunder the provisions of the Protection of Women from DomesticViolence Act 2005. The husband has indicated that he would not sharethe burden of raising the child rather we have been informed at the Barthat petitioner is taking steps for dissolution of her marriage by a decreeof divorce. Besides she has no income of her own.32.In such circumstances and taking an overall view of the matter we are of the view that declining permission to the petitioner willtantamount to compelling her to continue with her pregnancy which inthe circumstances will not only become extremely burdensome andoppressive on her but has the potential to cause grave injury to hermental health.33.Accordingly we grant liberty to the petitioner to undergo medicaltermination of her pregnancy in Dr. R. N. Cooper Hospital Mumbaiwithout any further loss of time.34.Outcome of the procedure shall be informed to the Court on thenext date.35.Stand over to 11.08.2021.(MADHAV J. JAMDAR J.) (UJJAL BHUYAN J.)21 21Minal Parab 

Summary: The constitution and legislation justly protect the right to life of the foetus and prevents the exploitation of the abortion procedure, however it shouldn’t be at the cost of the mother’s physical or mental health. This was held in the judgment passed by a two bench judge comprising HON’BLE JUSTICES UJJAL BHUYAN &amp; MADHAV J. JAMDAR, in the matter Sidra Mehboob Shaikh alias Sunita Raja Pramanik V. State of Maharashtra and another , dealt with an issue where the petitioner filed seeking a direction and permission for medical termination of her pregnancy on the ground that the pregnancy is having adverse impact on her mental health on account of continuing domestic violence. The medical board reported that the petitioner has suffered mental distress due to marital discord. Medical board has opined that petitioner does not suffer from mental illness at present; she is of sound mind; that there is no evidence of mental incapacity to raise the child. Distress due to ongoing marital discord can be overcome through marital counselling which has been recommended. Learned AGP submitted  that the legislature has clearly indicated as to what would constitute grave injury to the mental health of the pregnant woman. The said provision has to be construed strictly. Dwelling upon the language of the said provision she submits that if there is 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. Legislature has not indicated that a domestic dispute or a case of domestic violence may be presumed to constitute grave injury to the mental health of the married pregnant woman enabling her to have a right to terminate her pregnancy.