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Women's Bodily Autonomy & Right To Medical Termination Of Pregnancy: All India High Courts Digest 2022
LIVELAW NEWS NETWORK
5 Jan 2023 1:45 PM IST
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here are some important decisions relating to women's bodily autonomy and right to medical termination of pregnancy:1. Allahabad High Court Allows Termination Of 23-Week Pregnancy Of 12-Year-Old Rape Survivor To 'Free Her Of The Trauma & Social Miseries'Case title - Ms. X Thru. Her...
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here are some important decisions relating to women's bodily autonomy and right to medical termination of pregnancy:
Case title - Ms. X Thru. Her Legal Guardian Bharat Lal v. State Of U.P. Thru. Prin. Secy. Deptt. Of Home Civil Secrt. Lko. And Others
Case Citation: 2022 LiveLaw (AB) 447
The Allahabad High Court on Monday allowed a Writ Petition that was filed before it to terminate the 24-week-old pregnancy of a 12-year-old rape survivor.
Keeping in view the report of the medical board, the bench Justice Attau Rahman Masoodi and Justice Om Prakash Shukla permitted the medical experts to proceed with the challenge of terminating the pregnancy in the interest of justice.
Case Title: XXX vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 1
The Bombay High Court directed the state Government to forthwith constitute medical boards based on the Amended Act on 'medical termination of pregnancy (MTP)', to easy the hardship caused to a women seeking termination of her pregnancy.
The bench observed that Section 3(2)(b) of the Medical Termination of Pregnancy (Amendment) Act, 2021 has increased the limitation to undergo medical termination of pregnancy from the earlier 20 weeks to 24 weeks. It further added that section 3(2B), in fact, carved out an exception in cases of foetal abnormalities and did not limit such termination to the 24 weeks period otherwise provided in the subsection.
Case Title: 'A' v. State of Maharashtra and Anr.
Citation: 2022 LiveLaw (Bom) 240
The Bombay High Court allowed the termination of a 16 weeks' pregnancy of a minor who was a victim of sexual abuse and was also in custody at an Observation Home for a crime of murder under section 302 of the Indian Penal Code (IPC).
A bench of Justices A.S. Chandurkar and Urmila Joshi-Phalke noted that the Apex Court has observed that reproductive choice is an insegregable part of a woman's personal liberty as envisaged under Article 21 of the Constitution of India.
"She cannot be forced to give birth to a child...She has a choice to give birth to the child or not," it observed.
4. Friendly Relations Not Consent To Establish Physical Relations: Bombay High Court
Case Title: Ashish Ashok Chakor v. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 236
The Bombay High Court recently observed that a girl merely being friendly with a boy doesn't allow him to misconstrue it as her consent to establish a sexual relationship with her and rejected the anticipatory bail application of a man accused of impregnating a woman under the pretext of marriage.
Justice Bharati Dangre rejected the pre-arrest bail plea filed by one Ashish Chakor accused of raping a woman under the pretext of marriage and booked under sections Sections 376(2)(n), 376(2)(h) and 417 of the IPC.
Case Title: Xyz v. The State of Maharashtra & Ors (WP 9012 of 2022)
Citation: 2022 LiveLaw (Bom) 278
The Bombay High Court has refused to allow a mentally challenged rape victim to terminate her 35-week (8.5 months) pregnancy after a board of medical experts opined it was a high risk to maternal health. A division bench of Justices Gangapurwala and AS Doctor said that the court would be guided by the report of the Expert Committee, but since the pregnancy was a result of rape, certain directions were necessary:
The investigator should remain present at the time of delivery so that DNA samples can be collected soon after the delivery and be used during the trial. If the child is born alive, the State should take care of the child in accordance with guideline under a 2019 landmark judgement on Medical Termination of Pregnancy.
Case Title: Pundlik Yevatkar v. Sau. Ujwala @ Shubhangi Pundlik Yevatkar
Citation: 2022 LiveLaw (Bom) 374
The Bombay High Court held that a wife expressing a desire to work does not amount to cruelty under the Hindu Marriage Act. The court further said that the right of a woman to have reproductive choice is an insegregable part of her personal liberty under Article 21 of the Constitution.
Division bench of Justices Atul Chandurkar and Urmila Joshi-Phalke upheld family court's refusal to grant divorce to the husband on the ground that cruelty is not proven.
The court said that cruelty has to be distinguished from the ordinary wear and tear of the family life. The husband's allegation that the wife was harassing him by expressing that she wants to do the job is vague. Expressing desire by wife who is well qualified that she wants to do the job does not amount to cruelty. The husband has to make out a specific case that the conduct of wife was such a nature that it was difficult for him to lead the life along with her, the court said.
The husband had also accused his wife of terminating her second pregnancy without his consent and thereby subjecting him to cruelty. The bench said that even if the husband's allegations were taken at face value, the wife cannot be accused of cruelty for making a reproductive choice.
Case Title: Nivedita Basu v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 42
In a significant development, the Calcutta High Court allowed termination of 34 weeks 6 days old foetus of a woman after taking into consideration that there are remote chances of the child surviving or leading a normal life. The Court also underscored that there are risks to the health of both the mother and the child if medical termination of the pregnancy is not permitted. Justice Rajasekhar Mantha was adjudicating upon a plea moved by the petitioner seeking medical termination of the pregnancy on the ground that a large number of medical complications have been detected by three medical practitioners which are affecting the health of the petitioner as well as the foetus. "The medical report it is clear and explicit, that there are remote chances of the child being born out of the instant pregnancy surviving or leading ay normal life. The risks to the mother as well as the child are also highlighted in no uncertain terms. Considering the entire gamut of facts and circumstances, this Court permits the petitioner to medically terminate her pregnancy at an authorized hospital and/or medical facility", the Court observed.
8. Calcutta High Court Allows 17 Yr Old Rape Victim To Undergo Medical Termination Of Pregnancy
Case Title: Rupa Das v. The State of West Bengal & Ors
Case Citation: 2022 LiveLaw (Cal) 148
The Calcutta High Court permitted a 17 year old rape victim to undergo medical termination of pregnancy after taking into consideration the report filed by the Child Welfare Committee (CWC) and the report of the concerned Medical Board. Justice Rajasekhar Mantha took on record the report filed by the CWC addressed to the concerned Public Prosecutor, West Bengal wherein it had been averred that the minor victim girl had expressed her desire to undergo medical termination of pregnancy. The veracity of the desire of the minor girl had also been confirmed by six officials including the Chairperson of the Child Welfare Committee, Nadia. Permitting the minor victim to undergo medical termination of pregnancy, the Court directed, "In that view of the matter, subject to the verification of her health, afresh by the required number of qualified medical practitioners, the minor girl shall be permitted to undergo medical termination of pregnancy, under the care and guidance of her mother." The Court had previously directed the Chief Medical Officer of Health (CMOH), Nadia to constitute a medical board to ascertain the physical and mental condition of the victim girl and also determine whether the continuation of pregnancy would in any way harm the victim or the foetus.
Case Title: xyz v. GNCTD
Citation: 2022 LiveLaw (Del) 2
Observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty, the Delhi High Court has allowed termination of 28 weeks foetus of a 33 year old woman. The foetus was suffering from various abnormalities including Tetralogy of Fallot (TOF) with Absent Pulmonary Valve Syndrome (APV).
Justice Jyoti Singh also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
"As repeatedly held by the Courts, in the judgements referred above, reproductive choice is a facet of reproductive rights of a woman and a dimension of her 'personal liberty', enshrined in Article 21 of the Constitution of India and thus the Petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board," the Court said.
Case Title: SANGEETA THAPA v. GOVERNMENT OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 11
The Delhi High Court has allowed termination of pregnancy of a 28 year old woman whose gestational period had exceeded 28 weeks after taking note of her mental and emotional distress apart from the foetus abnormalities.
Justice Rekha Palli relied on a recent order of a coordinate bench wherein the Court allowed termination of 28 weeks foetus of a 33 year old woman observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty. The Court had also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
The petitioner in this case had sought medical termination of her pregnancy on the ground that the foetus was suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis.
CASE TITLE: MS X THROUGH HER LEGAL GUARDIAN v. GOVERNMENT OF NCT OF DELHI & ANR.
Citation: 2022 LiveLaw (Del) 684
The Delhi High Court has permitted a minor victim of sexual assault to terminate her pregnancy of 25 weeks and 6 days old pregnancy.
Justice Yashwant Varma, while noting that the Medical Termination of Pregnancy Act deals with pregnancies which may only extend upto 24 weeks, highlighted that in exceptional situations, the Court could invoke its extraordinary powers to permit for such termination, even when the provisions of the Act, when strictly construed, may not sanction the same.
"This Court is of the firm opinion that if the petitioner was forced to go through with the pregnancy despite the same having been caused on account of the incident of sexual assault, it would permanently scar her psyche and cause grave and irreparable injury to her mental health. The Court cannot visualize a more egregious invasion of her right to life as guaranteed by Article 21 of the Constitution."
Case Title: X v. PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT GOVT OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 898
Allowing a woman's prayer for immediate termination of the pregnancy of her minor daughter, the Delhi High Court has directed the Centre to ensure that the procedure is done at the national capital's All India Institute of Medical Science on government expenses.
The government and private hospitals had earlier refused to terminate the pregnancy since the family of the teenager was unwilling to report the case to the police.
Section 19 of the POCSO Act makes it mandatory for any person apprehending an offence under the Act is likely to be committed or has knowledge about the same, to report such incident to a Special Juvenile Police Unit or the local police. The medical practitioners also are obliged under law to file a report regarding the pregnancy.
Case Title: MRS. X v. GNCTD & ANR.
Citation: 2022 LiveLaw (Del) 1145
The Delhi High Court this week ruled that ultimate choice in the pregnancy cases involving fetal abnormalities is of the mother and emphasised that the medical boards in such cases must give qualitative reports.
"In conclusion, the Court holds that the ultimate decision in such cases ought to recognize the choice of the mother, as also, the possibility of a dignified life for the unborn child," said Justice Prathiba M. Singh in the ruling, while allowing a 26-year-old married woman's plea seeking medical termination of her foetus of over 33 weeks suffering from cerebral abnormalities.
Justice Singh said the opinion of the medical board in such cases of termination of pregnancy is of considerable importance for the assistance of the courts.
Case Title: A B C (Victim) vs State Of Gujarat
Citation: 2022 LiveLaw (Guj) 87
The Gujarat High Court recently allowed the plea of a minor rape victim to terminate her 6 weeks old pregnancy, on the ground that if pregnancy continues, it would cause lifelong mental agony to the her coupled with socio-economic problems.
"Petitioner is pregnant because of forcible rape by the accused...because of continuation of pregnancy, it would cause or constitute a grave injury to the mental health of the minor – victim coupled with the fact that bearing and rearing of child in the womb would create a great mental agony to her for her entire life and invite many other socio-economical problems. This can be said to be a grave injury to the mental health of the pregnant woman."
Case Title: Ms. X (Minor) Vs. UT of J&K and others
Citation: 2022 LiveLaw (JKL) 197
The Jammu and Kashmir and Ladakh High Court directed a medical board in Srinagar to undertake a fresh examination of a minor rape victim to take a final call on her request for termination of pregnancy of 22-23 weeks.
"Should the respondents 2 and 3 on the basis of said medical opinion/report decide to undertake termination of pregnancy of the petitioner-victim, necessary measures be also taken for preserving of DNA samples of the foetus. Needless to mention here that the petitioner-victim be provided appropriate free medical facilities in the event termination of pregnancy is undertaken," said Justice Javed Iqbal Wani in the order.
Case Title: Kumari M. v. The State Of Karnataka Case No: WritPetition No.100875/2022
Citation: 2022 Livelaw (Kar) 68
The Karnataka High Court recently permitted a minor rape victim to terminate her 22 weeks 3 days old pregnancy, upon noting that continuation of the same can develop anxiety, which could lead to depression effecting her mental health. A single judge bench of Justice Suraj Govindaraj said, "I am of the opinion that, it would be in the interest of the petitioner-victim, that the pregnancy is terminated." Following which it directed theDistrict Civil hospital (Belagavi) to medically terminate the pregnancy of thepetitioner by adopting all required safety considerations for such a procedure.
17. Kerala High Court Aids 10 Year Old Rape Survivor To Terminate 30 Weeks Pregnancy
Case Title: YYY v. Union of India
Citation: 2022 LiveLaw (Ker) 123
The Court came to the aid of a 10-year old girl who was allegedly sexually abused by her father, by permitting her to undergo medical termination of her 8-month (30 weeks) old pregnancy. Finding the plight of the girl who became pregnant at such a tender age 'unfortunate', Justice P.V. Kunhikrishnan allowed the plea for medical termination of pregnancy moved by the girl's mother.
18. Kerala High Court Allows Termination Of Minor Rape Survivor's 24 Weeks Pregnancy
Case Title: Y v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 356
The Kerala High Court recently came to the assistance of a minor rape survivor by paving the way for her to undergo medical termination of her pregnancy which was a result of the sexual assault committed on her. In case the newborn is born alive, Justice V.G Arun directed the State and its agencies to assume full responsibility and offer medical support and facilities to the child, if the petitioner was not ready to assume responsibility.
Case Title: XXXXXXXXXX v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 439
The Kerala High Court on Tuesday allowed a Writ Petition that was filed to terminate the 28 week old pregnancy of a 14 year old rape survivor.
The Single Judge Bench of V.G. Arun, while allowing the Writ, took note of the Medical Board's recommendation for the medical termination of pregnancy on the ground that,
"The continuation of pregnancy may cause grave injury to the mental health of the girl", the Court noted.
Case Title: Ramsiyamol R S v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 575
The Kerala High Court on Monday observed that economic backwardness or the possibility of social stigma cannot be a ground for transgressing the statutory prohibition prescribed by the Medical Termination of Pregnancy Act and granting permission for medical termination of pregnancy.
Justice V G Arun observed, "In the absence of any medical reasons referable to the petitioner or the foetus, economic backwardness or possibility of social stigma cannot compel this Court to transgress the statutory prohibition and grant permission for medical termination of pregnancy".
Case Title: X v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 652
The Kerala High Court on Monday allowed a minor rape victim to terminate her 26-week pregnancy.
Justice V.G. Arun said the continuation of the pregnancy could affect the mental health of the 17 year old girl, who suffers from intellectual disability.
"In the case at hand, the Medical Board after considering all aspects, has opined that the continuation of the pregnancy can seriously affect the mental health of the victim, and she is likely develop depression and psychosis. In view of the Medical Board's opinion, and considering the mental status of the victim, I am inclined to allow the prayer for medical termination of the pregnancy", the Court observed.
Case Title: K Vijayakumar v. State
Citation: 2022 LiveLaw (Mad) 309
Coming to the aid of a 13 years old rape victim, the Madras High Court recently allowed termination of her 28 weeks + 3 days old pregnancy on a plea by the girl's father.
Justice Abdul Quddhose observed that even though the pregnancy had crossed the legal period of 20 weeks, it had to be noted that she was a small statured girl and was not mentally or physically strong to withstand the pregnancy. Apart from this, the court also noted that the girl's father, the Petitioner herein, was an agricultural labourer and if the pregnancy was allowed to continue, not only the victim girl but the whole family would suffer. The court also noted that it had wider power under Article 226 of the Constitution than what is prescribed under section 3(2) of the Medical Termination of Pregnancy Act.
23. Orissa High Court Orders Compensation To Woman Who Got Pregnant Even After Undergoing Sterilization
Case Title: Shriya Chhanchan v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 107
The Orissa High Court ordered compensation to a woman who got pregnant even after undergoing sterilization process conducted by the State. While criticising the State for not following the proper procedures, a Single Bench of Justice Arindam Sinha observed,
"State not having itself followed the procedure to the letter cannot turn around and say that petitioner had omitted to act as per undertaking given by her, to report that she missed menstrual cycle after the operation. As aforesaid analysis of pleadings in paragraphs 4 and 6, respectively of the petition and counter, do not support this contention of State."
24. Patna High Court Allows Termination Of Pregnancy Of A Minor Victim Of Sexual Abuse
Case Title : Miss K v The State of Bihar
Citation: 2022 LiveLaw (Pat) 9
The Patna high Court recently allowed termination of pregnancy of a minor victim of sexual abuse.
Justice Anil Kumar Sinha observed that a plain reading of the provisions of the Medical Termination of Pregnancy Act, 1971, shows that with the consent of pregnant woman or the guardian in case of minor, the pregnancy can be terminated by two registered Medical Practitioners, where the length of pregnancy does not exceed 24 weeks.
Case Title: Mrs. X v. State of Haryana and Others
Citation: 2022 LiveLaw (PH) 306
Allowing a 17-year-old rape victim to get her pregnancy of 26 weeks terminated at a hospital, the Punjab and Haryana High Court observed that the child, if born, would be a reminder of trauma and agony for the minor.
Justice Vinod S. Bhardwaj in the ruling said, "As an unwanted child, the member is also likely to either live a tormenting life filled up with taunts to his origin or only to be given away. In either of the said situation, the mother as well as the child suffer social stigma and incarceration for rest of their lives."
Case title - Renuka v. Shelly Kumar [FAO 6740 of 2018]
Case Citation: 2022 LiveLaw (PH) 268
Stressing that motherhood is innate, natural, and fulfilling to every woman, the Punjab and Haryana High Court has observed that forcing a wife to terminate her pregnancy against her will constitutes cruelty.
With this observation, the Bench of Justice Ritu Bahri and Justice Nidhi Gupta decreed the petition for divorce filed by a wife under Section 13 of the Hindu Marriage Act and thus, dissolved the marriage of the parties solemnized in 2012 by decree of divorce.
Case Title: Victim v. State of Rajasthan & Ors.
Citation: 2022 LiveLaw (Raj) 196
The Rajasthan High Court has allowed a rape survivor to medically terminate 18 weeks pregnancy, stating that the anguish caused by an unwarranted pregnancy arising out of rape may be presumed to constitute a grave injury to the mental health of the victim.
Notably, the petitioner-victim had also lodged an FIR at Police Station Kaman, Bharatpur for offences punishable under Sections 323, 341 and 376D of the Indian Penal Code. The present petition was filed seeking directions to terminate her unwarranted pregnancy as she no longer intends to continue with the same.
On 31.05.2022, a coordinate bench of the court had directed the Superintendent of Police, Bharatpur to ensure that the victim girl be medically examined by the Medical Board comprising of expert doctors of the field to opine about the status of the pregnancy of the petitioner as well as whether termination of pregnancy of the petitioner is feasible or not.
A vacation bench of Justice Sudesh Bansal, while allowing the petition, observed,
"The Chief Medical & Health Officer, Bharatpur is directed to constitute a team of Gynaecologist, who after obtaining the consent of the victim in writing and looking to the advanced stage and the physician health of the victim girl, to get the pregnancy terminated at the earliest, if medically possible."
Case Title: xxxx v. State of Telangana
Citation: 2022 LiveLaw (Tel) 3
The Telangana High Court laid down that the life of the foetus or to be born child cannot be placed at higher pedestal than that of the life of the woman.
The court observed that Constitutional Courts have the power under writ jurisdiction to direct termination of pregnancy, even when the length of pregnancy is beyond the statutory limit of twenty-four weeks as per the Medical Termination of Pregnancy (Amendment) Act, 2021 (The Act).
Case Title: Ms. X (minor) through her father v. State of Uttarakhand & Ors.
Citation: 2022 LiveLaw (Utt) 5
The Uttarakhand High Court has allowed the termination of a 28 weeks foetus of a rape victim. Granting relief to the victim, the Single Judge Bench of Justice Alok Kumar Verma held,
"There is a right to terminate pregnancy on ground of rape. A rape victim has a right to make a choice to carry. She has also right not to carry pregnancy subject to the conditions as enumerated under the provisions of the Act (the Medical Termination of Pregnancy Act)."
Case Title: 'X' represented by her father and natural guardian v. State of Uttarakhand and Others
Citation: 2022 LiveLaw (Utt) 44
The Uttarakhand High Court on Wednesday allowed a 13-year-old rape victim to undergo medical termination of over 25 weeks of pregnancy, after the medical board gave its recommendation for the abortion.
Justice Sanjaya Kumar Mishra directed the authorities to proceed with termination of pregnancy as expeditiously as possible without any further delay.
Case Title: Pundlik Yevatkar vs Ujwala @ Shubhangi Yevatkar.
Citation: 2022 LiveLaw (Bom) 374
The Bombay High Court was recently posed with a question whether a woman's decision to terminate her pregnancy without her husband's consent can be termed as cruelty under the Hindu Marriage Act.
The division bench of Justices Atul Chandurkar and Urmila Joshi-Phalke underscored that a woman "cannot be forced to give birth to a child."
"Even the contention of the appellant/husband is accepted as it is, it is well settled that the right of a woman to have reproductive choice is an insegregable part of her personal liberty as envisaged under Article 21 of the Constitution of India," the court observed.
Refusing interim relief to a 25 year old unmarried woman seeking termination of her pregnancy of 23 weeks and 5 days, the Delhi High Court has observed that an unmarried woman, whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003.
The petitioner's pregnancy would complete 24 weeks on 18th of this month.
A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed thus: "As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself."
Case Title: SUO MOTO IN THE MATTER OF THE STATE OF M.P. versus FATHER OF PROSECUTRIX "A"
Case citation: 2022 LiveLaw (MP) 239
The Madhya Pradesh High Court, Gwalior Bench recently held a girl and her father guilty of obtaining an order for termination of pregnancy on the false pretext that the Prosecutrix was raped. The Court also held them guilty for non-appearance before the Court and continuously changing their stance during the course of the contempt proceedings.
Holding them guilty on two counts of contempt, Justice G.S. Ahluwalia lamented at the "sorry state of affairs" as the Court was misused to illegally obtain an order for abortion-
The Kerala High Court said that the drastic changes in matrimonial life of a pregnant woman fulfils the condition of 'change of her marital status' in Rule 3B of the Medical Termination of Pregnancy (MTP) Rules, thus making her eligible to undergo medical termination of pregnancy up to 24 weeks.
Citing a Supreme Court judgement in which it was held that a woman's reproductive choice is also a dimension of her personal liberty and also relying on the apex court's recent order in an MTP case, Justice V.G. Arun said:
"If interpreted and understood in the above manner, the drastic change in the matrimonial life of a pregnant woman is equivalent to the 'change of her marital status.' The word 'divorce' cannot in any manner qualify or restrict that right".
Case title - Satakshi Mishra v. State Of U.P. Thru. Prin. Secy. Secondary Edu. Dept. Lucknow And 4 Others [WRIT - A No. - 5114 of 2022]
Case Citation: 2022 LiveLaw (AB) 410
The Allahabad High Court has observed that the Maternity Benefits Act, 1961 Act does not contain any such stipulation regarding the time difference between the first and second child for the grant of maternity benefits. A
With this, the Court granted relief to an Inter College lecturer whose application for maternity leave had been rejected by placing reliance on Rule 153(1) of the Financial Handbook by contending that the same contains a restriction that the second maternity leave cannot be granted where there is a difference of less than two years between the end of the first maternity leave and grant of second maternity leave.
Case Title : Ena W/O Ashish Jain Versus State OfGujarat
Citation: 2022 LiveLaw (Guj) 248
The High Court has held that the Surrogacy Regulation Act,2021 does not envisage any provision that would require the custody of anew-born child to be retained by the surrogate mother for a particular periodof time, for the purpose of breastfeeding.
A division bench of Justice Vipul M. Pancholi andJustice Sandeep N. Bhatt held that the court must interpret the law asit stands and not on considerations of perceived morality. Thus, a new-bornchild could be handed over to the intended parents even without a court order,in lieu of the provisions of the Surrogacy Regulation Act, 2021 and thesurrogacy agreement signed between the parties.
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