Xxx vs Union Of India
2021 Latest Caselaw 12086 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

      THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

 MONDAY, THE 19TH DAY OF APRIL 2021 / 29TH CHAITHRA, 1943

                    WP(C).No.9982 OF 2021(W)


PETITIONER:

              XXX


              BY ADV. SRI.K.RAKESH

RESPONDENTS:

      1       UNION OF INDIA
              REPRESENTED BY ITS SECRETARY,
              MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
              NEW DELHI, PIN-100 001.

      2       THE STATE OF KERALA
              REPRESENTED BY ITS SECRETARY,
              DEPARTMENT OF WOMAN AND CHILD DEVELOPMENT,
              GOVERNMENT SECRETARIAT,
              TRIVANDRUM, PIN - 695 001.

      3       THE SUPERINTENDENT
              MEDICAL COLLEGE HOSPITAL, MANJERI,
              MALAPPURAM DISTRICT, PIN - 676 121.

      *4      THE SUPERINTENDENT
              MEDICAL COLLEGE,
              KOZHIKODE.

              (ADDITIONAL R4 IS SUO MOTU IMPLEADED AS PER
              ORDER DATED 16.04.2021 IN WP(C)9982/2021.)



              SRI. K.B.UDAYAKUMAR,SR.PUBLIC PROSECUTOR
              SRI. JAGADEESH LAKSHMAN, CGC
 W.P.(C) No.9982/21         -:2:-


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19.04.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.9982/21                    -:3:-




                                 JUDGMENT

Dated this the 19th day of April, 2021

Complaining of stomach pain, a minor girl of 13 years along

with her parents approached the hospital. After physical

examination, the doctor noticed that the girl was pregnant by almost

six months.

2. Pursuant to registration of a crime, during investigation, it

was suspected that the offence was committed by the 14 year old

sibling of the victim and a report in that regard was filed before the

Juvenile Justice Board. Ext.P2 is the birth certificate which shows

the date of birth of the victim as July, 2007. The scan report dated

1.4.2021, produced as Ext.P3, shows the foetus as 24 weeks and 4

days old. Contending that the petitioner's daughter is a victim of a

rape by her own brother, the father of the victim has approached this

Court seeking a direction to terminate the pregnancy of his daughter.

3. This writ petition came up for admission on 23.4.2021 and a

direction was issued to the 3rd respondent at Manjeri immediately

constitute a Medical Board to ascertain the possibility of performing

medical termination of pregnancy on the victim. Considering the

gestational age of the foetus it was directed that the report ought to

be submitted to court on the same day before 4 p.m.

4. Unfortunately, even though the Medical Board was

constituted, the victim was admitted at the Medical College Hospital,

Kozhikode and hence she could not appear before the 3 rd respondent

at Manjeri. Thereafter, this Court impleaded the Superintendent of

Medical College, Kozhikode as additional 4 th respondent and directed

the said respondent to constitute a Medical Board and report to this

Court as to whether the medical termination of pregnancy can be

performed on the victim. The report was directed to be placed

before this Court for consideration today.

5. I have heard Adv.Rakesh K., learned counsel for the

petitioner, Sri.Jagadeesh Lakshman, learned Central Government

Counsel and Adv.K.B.Udayakumar, learned Senior Public Prosecutor.

6. Pursuant to the direction mentioned above, the learned

Government Pleader has made available the report of the Medical

Board which was convened on 18.4.2021 with the following

members:

Chairman :

1. Dr.C.Sreekumar, Superintendent, IMCH, Govt.Medical College, Kozhikode.

Members :

2.Dr.Nurul Ameen A.M., Deputy Superintendent and Associate Professor, Obstetrics and Gynaecology, IMCH, Govt.Medical College, Kozhikode.

3.Dr.Priya N, RMO and Associate Professor, Obstetrics and Gynaecology IMCH, Govt.Medical College, Kozhikode.

4.Dr.Ajithkumar V.T., Head of the Department, Pediatrics, Govt.Medical College, Kozhikode.

5.Dr.Beena Guhan, Head of the Department (in-charge) Obstetrics and Gynaecology, Govt.Medical College, Kozhikode.

6.Dr.Devarajan, Head of the Department, Radio diagnosis, Govt.Medical College, Kozhikode.

7.Dr.Rajeswary Pillai, Chief, Unit 6 and Additional Professor, Obstetrics and Gynaecology Department, Govt.Medical College, Kozhikode.

8.Dr.Amrutha Ramachandran, Medical Officer in charge, Family Welfare Unit, and Additional Professor, Obstetrics and Gynaecology IMCH, Govt.Medical College, Kozhikode.

7. The observations of the Medical Board were as follows : Observations

The Medical Board went through the records of the rape victim aged 13 years (IP No.7292/IMCH), examined the patient and arrived at the following observations :

As per the MTP Act 2021, she is beyond the limit of legal MTP (Gestational age by Ultrasound Scan is 26 weeks and 6 days)

If MTP is considered she stands following medical risks :

1. The victim may need multiple inductions.

2. If Medical Induction fails, she may need surgical intervention (hysterectomy)

3. There is the chance that the fetus may survive.

Medical Termination of this pregnancy can be considered accepting the higher risks and facts mentioned above.

8. From the aforesaid report, it is evident that the gestational

age of the foetus is 26 weeks and 6 days.

9. The position of law regarding medical termination of

pregnancy is well settled. When the period of gestation exceeds that

prescribed in Sections 3 and 4 of the Medical Termination of

Pregnancy Act, 1971 (for short 'the Act'), medical termination of

pregnancy can be carried out only by an order of a court of law. The

statute has provided in Section 3 of the Act that if the length of

pregnancy exceeds 12 weeks but does not exceed 20 weeks,

termination can be carried out only after two registered medical

practitioners form an opinion that the continuance of the pregnancy

would involve a risk to the life of the pregnant woman or of grave

injury to her physical and mental health or there is substantial risk to

the child after born. Explanation 1 to Section 3 specifies that if the

pregnancy is caused on account of a rape committed on the woman,

it shall be presumed that the anguish caused by the pregnancy would

constitute a grave injury to the mental health of the pregnant woman.

The words used in explanation is "shall be presumed". The word

"shall be presumed" created as a statutory presumption clearly

shows the intention of the legislature. In the case of rape, the

anguish on account of the pregnancy is statutorily regarded as a

grave injury to the mental health of the pregnant woman, sufficient to

terminate the pregnancy on the basis of opinion of two registered

medical practitioners.

10. The period of gestation mentioned above has been

changed to 24 weeks by the Amendment Act No.8 of 2021. The

Explanation 1 to Section 3 has been changed to Explanation 2 to

Section 3. Since in the present case, the period of gestation has

reached 26 weeks and more, the question as to the effect of the

amendment and whether the amendment has been notified are not

being considered.

11. In the instant case, the pregnancy is that of a minor girl of

13 years. The said pregnancy will cause a grave injury to the minor

which will remain a scar throughout her life. It may even have the

possibility of reminding the victim of the incident of rape. It is

obviously not in the interest of the society to have this young victim to

undergo the trauma of the incident of rape everyday in her life. The

anguish that the pregnancy causes to her will be lifelong and she

may have to live with the traumatic experience throughout her life.

The parents and the siblings will also have to share this trauma

throughout their lives.

12. Petitioner contended that the victim was in fact born as a

premature child and has other medical conditions which would also

aggravate, if the pregnancy is not terminated. The young age of the

victim, the consequences pregnancy will force upon the victim, her

parents and even the unborn child are matters which this Court

cannot ignore.

13. This court has in the judgments in ABC v. Union of India &

others (2020 (4) KLT 279) and Ms. X v. State of Kerala and Others

(2016 (4) KLT 745), etc, ordered termination of pregnancy exceeding

20 weeks in the case of rape victims who were not mentally prepared

to deliver the child, in order to save their lives. In the judgment in A v.

Union of India [(2018) 4 SCC 75] Supreme Court ordered

termination of pregnancy in a case where the gestational age was

25-26 weeks. In the decision in Sarmishtha Chakrabortty v. Union

of India [(2018) 13 SCC 339], Supreme Court ordered termination of

pregnancy when the gestational age was 26 weeks. Similarly in

Meera Santosh Pal v. Union of India [(2017) 3 SCC 462] also,

permission was granted when the pregnancy crossed 24 weeks, in

view of the medical reports pointing out the risk involved. In the

judgment reported in Neethu Narendran v. State of Kerala (2020

(3) KHC 157) also, this court permitted termination of pregnancy

when gestational age crossed 23 weeks.

14. As found in many of the above referred cases, the minor

victim in this case, is also not prepared to deliver a child in the given

situation. The threat of severe mental injury to the victim is statutorily

presumed under the Explanation to Section 3 of the Act. In view of

the trauma that the minor girl has undergone and taking note of the

opinion of the medical board, I am of the view that the writ petition

ought to be allowed permitting termination of pregnancy to be

performed on the daughter of the petitioner.

15. In view of the opinion of the Medical Board that the medical

termination of pregnancy can be considered, if the higher risk and

facts mentioned in the report are acceptable, this Court elicited the

views of the parents of the victim through the counsel for the

petitioner. They also expressed their desire to terminate the

pregnancy taking into account the traumatic experience for the victim

as well as the possible genetic disorders that may befall the unborn

child due to the close relationship with the alleged offender of the

rape.

16. Considering all the above factors, it is declared that

pregnancy of petitioner's minor daughter is liable to be terminated

forthwith.

17. In the above circumstances, since each day's delay

would be crucial for the victim and the family, I direct the

Superintendent of Medical College, Kozhikode (additional 4 th

respondent) to terminate the pregnancy of the minor girl, who is the

victim in Crime No.116 of 2021 of the Nilambur Police Station,

through competent Doctors, under his supervision, immediately

without delay, and if possible today itself or at any rate, within 24

hours from 12 p.m. on 19.4.2021. The Medical Board shall maintain

a complete record of the procedure performed on the victim girl for

termination of her pregnancy.

18. There will be a further direction to the doctors to take the

tissue of the foetus for DNA identification and maintain the same

intact for future purposes, especially due to the fact that a criminal

case is pending in the instant case.

19. The Registry and all concerned, shall see that absolute

privacy is maintained with respect to the identity of the petitioner

while issuing the certified copy of the judgment or otherwise. There

shall be a direction that copy of the writ petition, affidavit, the

documents annexed to it and the medical report shall not be issued

to any third person without obtaining orders from this Court.

The writ petition is allowed as above.

Handover to the learned Government Pleader.

Sd/-

BECHU KURIAN THOMAS JUDGE vps

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE FIR AND FIS IN CRIME NO.116/2021 OF THE NILAMBUR POLICE STATION DATED 1.4.2021.

EXHIBIT P2 TRUE COPY OF THE BIRTH CERTIFICATE DATED 27.05.2014 OF THE MINOR VICTIM ISSUED BY THE NILAMBUR MUNICIPALITY.

EXHIBIT P3 TRUE COPY OF THE SCAN REPORT OF THE VICTIM ISSUED ON 1.4.2021 FROM CLEAR SCAN DIAGNOSTIC CENTRE, NILAMBUR.