Top News Headlines 10th Jan 2022: MTP: Delhi HC Allows Termination At 28 Weeks

MTP: Delhi HC Allows Termination At 28 Weeks

• In a recent case titled Sangeeta Thapa vs Government of NCT of Delhi and ors. the Hon’ble Delhi HC has granted permission to allow a 28 year old woman to terminate her pregnancy. Her gestational period had exceeded 28 weeks. The Court in this case took note of the fact that continuing the pregnancy would take an enormous toll on the mental and emotional well-being of the mother.
• The bench comprising Justice Rekha Patil relied upon the recent order of a coordinate bench in petitioner vs Government of NCT of Delhi in which the court had allowed the termination of a pregnancy of a 33 year old woman at 28 weeks stating that reproductive choice of a woman is a facet of her personal liberty and has been held to be such by the Supreme Court in a plethora of judgements.
• In the instant case, the medical termination of pregnancy was sought by the petitioner on the grounds that the foetus was not only suffering from Edward syndrome, which is caused by an extra copy of chromosome 18, but also from non-ossified nasal bone and bilateral pyelectasis.
• If the pregnancy was taken to its full term, the child was unlikely to survive its first year, and that too with continuous medical assistance. This would lead to immense trauma to the petitioner’s mental as well as physical well-being.
• The Court observed that a cumulative reading of sections 3(2)(b)(i), (ii) and 3(2B) of the MTP Act indicated the intent of the legislature to allow the termination of the foetus not only in cases of medical abnormalities but also in cases when the continuation of the pregnancy would cause severe harm to the psychological and physical well-being of the mother.
• Even though the Court agreed that terminating the pregnancy at this stage would come with certain risks to the health of the lady, the Court was still of the view that forcing the petitioner to continue with the pregnancy would result in her constantly living with the fear that chances of a stillborn birth is very high. And even if the child was born alive, she would be raising the child with the heavy burden that one day in the coming months she might lose the child forever.
• The Court also took note of the fact that the child would be born with such abnormalities that leading a normal life would become impossible, causing grave hardship to the child as well as the petitioner, both mental and physical, not to mention the added financial troubles as well.
• Thus, the Court allowed the termination of the pregnancy, keeping in view the rights of the petitioner and her well-being.

Mere Breach Of Peaceful Residence Not A Violation Of Right To Privacy: Kerala HC On Toddy Shops In Residential Areas

• In S.K. Pavithran vs. Laisy Santhosh and ors. the Kerala HC has reversed a single bench decision that held that establishing a toddy shop in a residential locality would be an infringement of the right to privacy. The bench had held that anything and everything that affects the peaceful residence of a person would infringe his right of privacy.
• Disagreeing with this, the Court held that if the fundamental rights enshrined in the Constitution were expanded to such a degree, then it would violate the fundamental right of livelihood of other people as anything which a person does to earn a living would, in some way, cause some amount of nuisance to other people. The interpretation which the Single Judge had given would give rise to a number of conflicts regarding what can and cannot be allowed to be done near residential areas.
• The Division Bench was hearing an appeal filed by a bunch of toddy shop owners who were aggrieved by the decision of the single bench. The decision of the single bench was taken following the report of the amicus curiae wherein he stated that toddy shops made the lives of residents miserable. Drunkards would pass lewd comments on passing girls and would engage in brawls which would disturb the peace in the vicinity.
• The Division Bench held that these above stated factors would amount to nuisance or breach of public peace, but would be an excess to call it as a violation of privacy. The Court further said that disruption of public peace and other concerns find remedy in the rules subject to which the licenses are granted and violation of the same would empower the authorities to revoke the license or relocate the shop to another place.
• Taking note of the judgement of the Hon’ble SC in K.S.Puttaswamy’s case, the Court held that the right of privacy will not extend beyond reasonable expectation and that it has to be exercised subject to the right of others to lead an orderly and peaceful life.
• Taking note of the fact that when the respondent’s bought their land, the toddy shop was already in existence, the Court said that there was no question of the infringement of the right to privacy of the respondents, as they always had a right to choose not to buy the land adjacent to the shop. Thus, a case of violation of privacy in Article 21 is not made out.
• Thus, the appeal was allowed and the judgment of the Single Bench was set aside.

Counsel’s Refusal To Argue: Appeal Cannot Be Dismissed On Merits- Allahabad HC

• In a recent case titled Janki Prasad vs. Sanjay Kumar and ors. the Hon’ble Allahabad HC has held that when an appeal has to be dismissed by the appellate court because the appellant, though present, refuses to argue the same, the dismissal cannot be on merits in view of the Explanation appended to Order 41, Rule 17 of CPC.
• The respondents- plaintiffs instituted a suit in 2010 praying for a permanent injunction restraining the appellant- defendant from interfering with their peaceful possession of the suit property. This suit was decreed in 2013 in their favour. The appellant- defendant filed a first appeal against this order which was dismissed on merits because the counsel for the parties, though present, refused to argue the same.
• It was for challenging this order that Janki Prasad (appellant) filed a second appeal before the HC.
• For understanding this, we have to refer to the explanation to Order 41 rule 17 CPC which states that the Appellate Court cannot dismiss the appeal on merits in cases in which on the day fixed, the appellant does not appear when the case is called for hearing.
• The Court, in light of this explanation, held that the above explanation also applies in cases when the counsel for the appellant, though present in the Court, refuses to argue the case or for any other reason is not able to address the Court. In these cases, the Appellate Court has no jurisdiction to decide the case on its merits.
• Consequently, the instant second appeal was allowed and the judgement and decree of the lower appellate Court was set aside.