SC bench disagrees on abortion of 26-week pregnancy of married woman, refers matter to larger bench

Hearing the matter, a bench of Justices Hima Kohli and B V Nagarathna said one of them was of the opinion that the pregnancy should not be terminated, whereas the other judge on the bench disagreed. The matter will now be placed before CJI D Y Chandrachud for the constitution of a larger bench. -- Reports ETV Bharat's Sumit Saxena

New Delhi:Two female judges of the Supreme Court Wednesday disagreed on whether to allow the termination of a 26-week pregnancy of a married woman, who was earlier permitted by the apex court to abort it.

A bench comprising Justices Hima Kohli and B V Nagarathna said one of us (Justice Kohli) is of the opinion that the pregnancy should not be terminated, whereas the other judge on the bench disagrees. The matter will now be placed before the Chief Justice of India D Y Chandrachud for the constitution of a larger bench to decide the matter.

Justice Nagarathna, dictating her part of the order, said, "I respectfully disagree…The petitioner has stated all throughout that she does not wish to carry out her pregnancy”. Justice Nagarathna said this is not a question where the viability of the foetus has to be considered, but the interest and wishes of the petitioner who has reiterated her mental condition and ailments, and the petitioner’s decision must be respected.

During the hearing earlier in the day, the apex court had expressed anguish over a fresh medical report on the strong possibility of survival of a foetus of a 26-week pregnant married woman, who was earlier allowed to abort it. The apex court asked which court would say “Stop the fetal heartbeat”. On October 9, the apex court allowed the woman, a mother of two, to proceed with medical termination of pregnancy after taking note that she was suffering from depression and was not in a position to raise a third child, emotionally, financially and mentally. The apex court was hearing an application filed by the Centre seeking to recall its order.

The bench had asked additional solicitor general Aishwarya Bhati, representing the Centre, "If the doctor could be so candid in two days short of the earlier report, why was not the (earlier) report more elaborate and more candid? Why were they being ambiguous in the earlier report?” The bench said it had passed the earlier order after considering the report submitted by a team of doctors from AIIMS, New Delhi, who examined the woman.

The apex court observed that after giving an "ambiguous report" to the court saying the woman does have a problem...the new report now says there is a strong possibility of survival of the foetus. “Which court will say, stop the heartbeat of a foetus which has life? We are wondering which court would do that. Speaking for myself, I would not,” said Justice Kohli.

The bench made it clear that it did not appreciate the way the Centre had mentioned the matter on Tuesday before a bench headed by CJI. Justice Nagarathna said that if the Union of India starts doing this, then tomorrow, a private party will also do this. She stressed, “Every bench of the Supreme Court is the Supreme Court. We are one court sitting in separate benches. Speaking for myself, I would not appreciate this on the part of the Union of India”.

On Tuesday, the Supreme Court directed AIIMS, New Delhi, to defer the medical termination of the 26-week pregnancy of a married woman who was allowed by another bench of the apex court to abort the foetus a day before. Bhati had requested the apex court to recall the order passed by a bench headed by Justice Kohli. Bhati said the medical board had said that the foetus had a viable chance of being born and they would have to conduct a foeticide.

A bench headed by Chief Justice of India (CJI) D Y Chandrachud asked Bhati to come up with a formal application for recall of the order. “We will place before the bench which passed the order. The AIIMS doctors are in a very serious dilemma…. Please ask AIIMS to hold for now,” said the bench led by CJI.