Two-judge SC bench gives split verdict on Centre's plea to recall order permitting married woman to terminate pregnancy

Two women Supreme Court judges on Wednesday disagreed on a question to grant permission for termination of 26-week pregnancy of a married woman as the latest medical report said there is a strong possibility of survival of the foetus.

Of the two judges, Justice Hima Kohli posed the question of which court will say “stop the foetal heartbeat”. Justice B V Nagarathna, on the contrary, gave primacy to the petitioner woman's conditions and her wish as she maintained she does not wish to carry out her pregnancy.

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.

Earlier in the day, the bench expressed displeasure 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.

On October 9, the apex court had 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.

Taking up an application filed by the Centre seeking to recall its order, the bench asked Additional Solicitor General Aishwarya Bhati, “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 court said that after giving an “ambiguous report” saying the woman does have a problem which could go up, however 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,” Justice Kohli said.

Justice Nagarathna, for her part, said “I respectfully disagree. The petitioner has stated all throughout that she does not wish to carry out her pregnancy”.

She 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 that her decision must be respected.

The bench also 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.

"Every bench of the Supreme Court is the Supreme Court. We are one court sitting on separate benches. Speaking for myself, I would not appreciate this on the part of the Union of India,” she said.

On Tuesday, the Supreme Court directed AIIMS, New Delhi, to defer 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 led by Justice Kohli.

She said the medical board had said that the foetus had a viable chance of being born and they would have to conduct a foeticide.

The bench led by Chief Justice of India D Y Chandrachud asked Bhati to come with a formal application for recall of the order.

“We will place the matter before the bench which passed the order. The AIIMS doctors are in a very serious dilemma. Please ask AIIMS to hold for now,” the CJI had said.