Matrimonial Discord Can’t Be Considered As Reason For Permitting Termination Of Pregnancy: Bombay HC

In a landmark judgment with far reaching consequences which shall always be a trendsetter in the time to come, the Bombay High Court in Neelam Choudhary V/s 1. Union of India 2. State of Maharashtra 3. Ministry of Health and Family Welfare, through its Secretary in Writ Petition No. 6430 of 2018 delivered on June 19, 2018 while refusing a plea seeking termination of pregnancy held that matrimonial discord cannot be considered as a reason for permitting termination of pregnancy by invoking provisions of the Medical Termination of Pregnancy Act, 1971. Very rightly so! There can be no denying or disputing it!

Bluntly put, if matrimonial discord is accepted a valid reason for permitting termination of pregnancy then many women would resort to such specious plea and many children would be killed in the womb itself! How can this be permitted to happen under any circumstances? So Bombay High Court took the right, laudable and bold decision in not allowing termination of pregnancy on the ground of matrimonial discord!

To recapitulate, a married woman who was carrying pregnancy of more than 20 weeks, approached Bombay High Court contending that she does not intend to continue with the pregnancy as she intends to pursue her studies and apply for divorce. According to her, taking into account her health problem of epilepsy, it will not be advisable to continue with the pregnancy and also pursue her studies. In her plea, it was also stated that she had always cautioned her husband to have protective sex, but he did not pay any heed to the same.

Going forward, the petition also challenged stipulation of a ceiling of 20 weeks for an abortion to be done under Section 3 of the Act, on the ground that the said provision is ultra vires Article 14 and 21 of the Constitution of India. By way of present petition, the petitioner has sought following reliefs:

“a. For a writ of declaration or any other appropriate writ, order or direction in the nature of declaration, declaring section 3(2)(b) of The Medical Termination of Pregnancy Act, 1971 to the limited extent that it stipulates a ceiling of 20 weeks for an abortion to be done under Section 3, as ultra vires Article 14 and 21 of the Constitution of India;

b. For a writ of declaration or any other appropriate writ, order or direction in the nature of declaration, declaring that the case of the Petitioner is a fit case for exercising jurisdiction under Section 5 of the Medical Termination of Pregnancy Act, 1971.

c. For a writ of mandamus or any other writ, order, or direction in the nature of mandamus directing the Respondents to –

i constitute a Medical Committee for the examination of the Petitioner to assist this Hon’ble court in arriving at a decision on the plea of the Petitioner;

ii allow the Petitioner to undergo Medical Termination of Pregnancy at a medical facility of her choice.

d. For a writ of mandamus or any other writ, order, or direction in the nature of mandamus directing the Respondents to set up appropriate Medical Committees in each district in the State of Maharashtra to assess the pregnancy and offer MTP to the Petitioner and other women in need of the procedure beyond the prescribed 20 weeks limit.

e. For an order directing Respondent No. 1 to produce the report of MTP Committee which included the Health Secretary, Mr Naresh Dayal, former Director-General of the Indian Council of Medical Research and Dr. NK Ganguly as its members as stated in para 9 of the petition.”

Truth be told, a Division Bench of Justice Shantanu Kemkar and Justice Nitin W Sambre observed that none of the medical papers produced by her certifies that there is imminent danger to her life and she has no case that foetus will not be able to survive. Para 10 of this landmark judgment says explicitly that, “From the record, it is ex-facie clear that it is the case of the petitioner that she is carrying as on date pregnancy of about 23 weeks. The petitioner got married in 2012 and started residing with her husband and in-laws in 2016. The fact remains that she is educated up to 11th standard and pursuing further studies. It is also apparent that in 2016, an NC came to be registered for an offence under section 323, 504 of the Indian Penal Code in view of the complaint lodged by the petitioner against her husband and in-laws. It is apparently clear that the said NC complaint was not further prosecuted by the petitioner. Rather, in categorical terms she has admitted that, she has started residing with her husband. Out of the said relationship, she conceived a child and presently carrying pregnancy of 23 weeks.”

To be sure, the Bench further observes in para 11 that, “In the aforesaid factual background, if the claim of the petitioner is examined qua her prayer for issuance of directions for permission to terminate pregnancy, it is required to be noted that none of the medical papers which are placed on record certifies that there is imminent danger to life of the petitioner nor the condition of the foetus is incompatible with the extra uterine life. It is even not the case of the petitioner that the foetus would not be able to survive. The petitioner has also not demonstrated that continuation of pregnancy can gravely endanger the physical and mental health of the petitioner.” We thus see that petitioner’s plea is not supported by strong causes! This alone explains why her plea was rejected!

As if this is not enough, para 12 of this landmark judgment further exposes the fallacies in her tall claims when it points out that, “Apart from above, it is required to be noted that the petitioner is seeking termination of pregnancy based on the cause viz. her matrimonial discord with her husband, her intention to initiate divorce proceedings and to pursue her career and improve her educational qualification. If the aforesaid cause as cited by the petitioner are examined in the light of the provisions of the Medical Termination of Pregnancy Act, 1971, same not at all recognized to form basis for accepting the prayer of the petitioner to terminate the pregnancy.” So naturally how could the Bombay High Court accept her petition for termination of pregnancy? The petition had to be rejected!

Simply put, para 15 further says that, “It is not the case of the petitioner that she is of unsound mind or there is any physical or mental deformity which prompts her not to continue with the pregnancy. As observed herein before, there is no material whatsoever brought on record to substantiate the said claim.” So no prizes for guessing that her plea was bound to be rejected. She could not cite any valid cause for the abortion!

Be it noted, para 22 of this landmark judgment pooh-poohed her plea for termination of pregnancy by observing that, “In the wake of law laid down and discussed herein before, the fact remains that the ground which is sought to be espoused by the petitioner seeking termination of pregnancy is no more germane to the requirement under section 3 of the Act. Her matrimonial discord cannot be considered as a reason for permitting her to have termination of pregnancy by invoking provisions of the Medical Termination of Pregnancy Act, 1971. For the eventualities which are spelt out in the petition, it is really difficult to consider and grant the request of the petitioner for permitting her to have termination of pregnancy.”

It would be pertinent to mention here that para 23 further goes on to say that, “Apart from above, though the petitioner has raised a plea of challenge to provisions of Section 3 of the Act being violative of Article 14 & 21 of the Constitution of India, the petitioner has hardly tried to justify her claim as no arguments are canvassed on the said issue.” Finally and most importantly, para 24 concludes this landmark judgment by saying that, “That being so, this Court has reached to a conclusion that there is no substance in the present petition and same deserves to be dismissed and accordingly dismissed.”

All said and done, this is an excellent and exemplary judgment which serves to send out a clear and categorical message that pregnancy cannot be permitted just on ground of matrimonial discord unless accompanied by other compelling grounds like threat to the life of the women or she is of unsound mind or has any physical or mental deformity! The Bench also declined to entertain the prayer challenging stipulation of 20 weeks ceiling observing that no arguments are canvassed on it. The Bench observed that the lady is seeking permission to terminate pregnancy merely by citing her matrimonial discord as the cause and pursuing her education further when the fact remains that she is carrying pregnancy out of her marital life and she is major and educated. Also, the petition was held as not maintainable as there is no medical advice to the petitioner to terminate her pregnancy of more than 20 weeks. Lastly but most importantly, all the causes that she cited for getting her pregnancy terminated did not appeal to the Bench which rejected her petition after citing the valid causes for doing so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Merit Can’t Be Defeated On Technical Grounds: Delhi HC

It must be stated right at the very beginning that in a landmark judgment delivered on July 10, 2018 with far reaching consequences, the Delhi High Court in Jasmeen Kaur v Union of India and others in W.P.(C) 7040/2018 while holding merit over technical grounds has opened up a closed opportunity for an aspiring medico to register for the second round of counselling for deemed universities after the due date. How can merit be defeated on technical ground? So Delhi High Court very rightly stepped in and gave the much needed relief to the petitioner which she richly deserved also!

Truth be told, the present petition has been instituted on behalf of a candidate who has secured All India 24,392nd rank in the NEET UG, 2018 examination. At the time of registration for the first round of All India Counselling, the petitioner expressed her options as ‘All India Quota’ seats, as well as ‘Central University Quota’ seats. The petitioner participated in the counseling process but could not be granted admission on account of her All India merit.

Needless to say, it is an admitted position that the second round of All India Counselling for Central and Deemed Universities has commenced on 10th of July, 2018. It is scheduled to continue till the 11th of July, 2018. It is the submission of the petitioner that on account of the circumstance that she limited her options at the time of applying online for registration, to ‘All India Quota’ and ‘Central University Quota’, she has been precluded from registering afresh for the second round of counseling under the category of ‘Deemed Universities’.

As it turned out, the learned counsel appearing on behalf of the respondent no. 1 states that the portal permitting candidates to register for the second round of counseling had since been closed on the 8th of July, 2018 and the petitioner having limited her options as afore-stated in the first round, cannot be permitted to register afresh for the second round under the category of ‘Deemed Universities’ since that option had not been exercised by her earlier. It is further stated that during the process of online registration, candidates are permitted one opportunity to reset their choices and the petitioner having utilized that opportunity, cannot be permitted once again to apply for the category of ‘Deemed Universities’ as an option in the second round of counselling. On a specific query from the court, it emerges that although there are no rules or regulations that bar fresh registration to those who may have exercised limited options on an earlier occasion, the process permitting a candidate, such as the petitioner, to exercise her options at this stage would require the re-opening of the portal which would cause inconvenience and delay in the completion of the process of registration.

Truly speaking, it is very rightly pointed out in para 6 of this landmark judgment that, “It is a settled position that construction of rules or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure is the handmaid of justice and not its mistress [Ref: Salem Advocate Bar Association, T.N. vs. Union of India, reported as (2005) 6 SCC 344]”. Furthermore, it is also rightly pointed out in para 7 of this landmark judgment that, “In view of the foregoing, it is trite to state that merit cannot be defeated on technical grounds. It is an admitted position that considering the All India rank secured by the petitioner, she may be entitled to participate successfully in the second round of counseling for admission to a medical course conducted by the Deemed Universities.”

As it turned out, Justice Siddharth Mridul directed the Centre to open up its online registration facility for the petitioner named Jasmeen Kaur who had secured all-India 24,392nd rank in NEET UG 2018 examination but could not register for second round of counseling for admission to deemed universities since at the time of online registration, she had marked her options as ‘All-India Quota’ seats as well as central university quota seats. Para 8 of this landmark judgment says that, “In this view of the matter, the only course that commends itself in the interest of justice is to direct respondent no. 1 to permit the petitioner to register afresh for the ‘Deemed Universities’ category in the second round of counselling in accordance with law.” Very rightly so!

It cannot be lost on us that the order of the court came on Tuesday i.e., July 10, just a day before the second round of counseling was to close. Following the order, the Centre opened universities. Jasmeen had participated in the first round of counselling but could not be granted admission on account of her all-India merit. The second round of counselling for central and deemed universities began on July 10 and July 11 was the last day of counselling.

It would be pertinent to mention here that Jasmeen’s counsel Rahul Kriplani told the court that due to the options exercised by her at the time of registration, she has now been precluded from registering afresh for the second round of counselling for deemed universities and stands to suffer the loss of a precious opportunity having already dropped one year for preparation for NEET. In the petition, advocate Kriplani said that Jasmeen had secured Rank 24,392 which puts her in the 98.07 percentile of candidates. This alone explains why the Delhi High Court ruled explicitly in her favour!

Going forward, it must also be brought oput here that in para 9 of this landmark judgment, it is pointed out that, “Needless to state that, the above direction is being issued in view of the special facts and circumstances of the present case and in view of the legal position that there is no bar for a meritorious student to be considered for admission to a medical course by all institutions who conduct such courses.” Absolutely right! How can a meritorious student be barred in such a whimsical and arbitrary manner?

Simply put, Jasmeen’s lawyer rightly argued that, “She then registered to participate in the first round of counseling and at that time opted for admission into ‘15% All India Quota of Government Colleges’ and ‘Central Universities’. It was understood that subsequently, the petitioner would be allowed to opt for ‘deemed universities’, if she did not secure a seat in the first round, as the website of the Medical Council Committee clearly stated that fresh registration was permissible at the time of second round of counseling.” He also rightly said that, “Having not secured any seat in the first counselling (since she had not picked ‘deemed universities’ as an option at the time of enrolling for the first round), the Petitioner sought to opt for Deemed Universities at the time of second round of counselling but was not being permitted to do so. She was not even being allowed to register afresh for Deemed Universities and make payment for the same. However, the information provided on the website of the Medical Counselling Committee, clearly stated otherwise. The last date for making payment and selection of colleges in the second round of counselling was Monday, 09.07.2018.”

As if this was not enough, he also informed that persons with a rank as low as 3,89,871 had obtained admission to MBBS in deemed universities in the first round of counselling. He also argued that there were around 3,100 seats remaining in the second round of counselling and the petitioner would be able to secure admission into an MBBS course of her choice if she is allowed the promised option of fresh registration. His point is certainly valid.

No prizes for guessing that his valid contentions were accepted by the Delhi High Court. His client Jasmeen got the much needed relief from the court. Before disposing of her writ petition apart from what has been stated above, it was also directed by the Delhi High Court in para 10 of this landmark judgment that, “It is further clarified that the option of registering afresh shall be available to the petitioner up till closing of the business hours today, subject to the respondent no. 1 making online registration facility available to the petitioner and informing her in this behalf.” Very rightly so!

All said and done, it is a landmark judgment delivered by Justice Siddharth Mridul of Delhi High Court. It minces no words in sending out a loud, clear and categorical message to all that, “Merit can’t be defeated on technical grounds”. This will certainly give an inspiration to the deserving candidates in future not to hesitate in taking recourse to legal action if they feel that their merit has been snubbed wrongly by the authorities and thus get their right by doing so! It is an excellent and exemplary judgment in which the Judge of Delhi High Court Justice Siddharth Mridul briefly and very forcefully articulates his stand and provides the much needed reprieve to Jasmeen who had petitioned Delhi High Court to get what she was legally entitled also but was being wrongly deprived of! It will not be an exaggeration to say that it is a “must read judgment”! There can be no denying or disputing it!