Fathima N vs The State Of Kerala
2021 Latest Caselaw 6554 Ker

W.P(c).No.4562/2021-U              1




               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

  WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                        WP(C).No.4562 OF 2021(U)

PETITIONERS:

       1       FATHIMA N.
               AGED 24 YEARS
               W/O.SHAMNAD, PUTHUVEETTIL KIZHAKKATHIL, IQBAL NAGAR
               92, VADAKKEVILA P.O., KOLLAM DISTRICT.

       2       SHAMNAD,
               AGED 34 YEARS
               S/O.K.SHAMSUDEEN, PUTHUVEETTIL KIZHAKKATHIL, IQBAL
               NAGAR 92, VADAKKEVILA P.O., KOLLAM DISTRICT.

               BY ADV. SRI.T.R.RAJAN

RESPONDENTS:

       1       THE STATE OF KERALA,
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               DEPARTMENT OF HEALTH AND FAMILY WELFARE,
               SECRETARIAT, THIRUVANANTHAPURAM-695001.

       2       THE DIRECTOR OF MEDICAL EDUCATION,
               THE STATE OF KERALA, DIRECTORATE OF MEDICAL
               EDUCATION, MEDICAL COLLEGE P.O.,
               THIRUVANANTHAPURAM-695011.

       3       THE SUPERINTENDENT,
               MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE P.O.,
               THIRUVANANTHAPURAM-695011.

       4       THE HEAD OF DEPARTMENT OF GYNAECOLOGY,
               SREE AVITTAM THIRUNAL HOSPITAL, MEDICAL COLLEGE,
               MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.
 W.P(c).No.4562/2021-U            2




       5       ADDL.R5. THE SUPERINTENDENT,
               SREE AVITTAM THIRUNAL HOSPITAL,
               THIRUVANANTHAPURAM.


               (ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED
               22/2/2021 IN WP(C)4562/2021.)


               SMT.VINITHA.B, GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(c).No.4562/2021-U                        3




                                   P.V.ASHA J.
                 ---------------------------------
                     W.P.(C) No.4562 of 2021-U
                 ---------------------------------
                Dated this the 24th day of February 2021

                                    JUDGMENT

The petitioners, who are husband and wife, have filed this

Writ Petition producing Exts.P2 and P3 medical reports seeking a

direction to the respondents to carry out medical termination of

the 1st petitioner's pregnancy. The scan reports would show

severe abnormalities to the fetus. The gestation average age of

the fetus was 23 weeks as on 17.02.2021.

2. When the matter came up for admission on 22.02.2021

this Court passed an interim order, in the light of the

Government Order dated 31.12.2020 directing the additional 5 th

respondent to constitute a Medical Board and to examine and

report the medical condition of the petitioner and the fetus.

Thereafter, Smt. Vineetha.B, the learned Government Pleader, has

made available the report of the medical board which would show

that the medical board was convened on 23.02.2021 with the

following members:

"1. Dr. A Santhosh Kumar, Superintendent, SATH, Govt.Medical

College, Trivandrum,

2. Dr.Sreekumari R, Professor and Head, Dept. of O & G,

Govt.Medical College, Trivandrum,

3. Dr.Geetha M I, Associate Professor, Dept. of O & G,

Govt.Medical College, Trivandrum

4. Dr. Radhika S, Associate Professor, Neonatology Dept.,

Govt. Medical College, Trivandrum

5. Dr.Priyasree J, RMO, SAT Hospital, Govt. Medical

College, Trivandrum."

3. The medical board has examined the petitioner & observed the following facts:

"24 year old G2P1L1, previous CS, T EDC, 16-6-21, T GA: 23 weeks 6 days, on 23/2/2021, requesting MTP in view of fetal anomalies. Patient was referred to us at 20 weeks 5 days from Victoria Hospital, Kollam in view of USS showing severe oligamnios and low lying placenta. She also had a USS done at 17 week 1 day which showed CTEV. A repeat USS to look for anomalies and placental localization was advised and patient reported on the casuality with USS on the same day.

Opinion of the Medical Board

1. Neonatology Opinion : Missing of oligohydramnios, fetal B/C CTEV and fetal bladder extrophy noted will need postnatal surgical interventions for correction. Prognosis is guarded.

2. Fetal medicine opinion : the scan findings is consistent with bladder/cloacal extrophy with oligamnios; survival is more than 90%; however the new born may require extensive corrective surgeries and some amount of urinary diversion cloacal extrophy. The prognosis remains guarded.

3. Obstetrician Opinion : In view of guarded prognosis given by the Medical Board the consensus is to conduct MTP."

4. The report of the medical Board, also shows that grave

abnormalities have been found in the fetus. As per Section 3(2)

(b)of the Medical Termination of Pregnancy Act 1971, termination

of pregnancy is permissible where the length of the pregnancy

exceeds twelve weeks but does not exceed twenty weeks, if not

less than two registered medical practitioners are, of opinion,

formed in good faith, that (i) the continuance of the pregnancy

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

grave injury to her physical or mental health; or (ii) there is

a substantial risk that if the child were born, it would suffer

from such physical or mental abnormalities as to be seriously

handicapped. As per Section 5 of the Medical Termination of

Pregnancy Act, termination of pregnancy is permissible even in

cases where the period of gestation exceeds the period

prescribed in Section 3 and 4 of the Act, which reads as

follows:

"5. S.3 and S.4 when not to apply. - (1) The provisions of S.4 and so much of the provisions of sub- section (2) of S.3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman."

5. The Apex Court has in similar circumstances, in the

judgment in Sarmishtha Chakrabortty v. Union of India: (2018)

13 SCC 339, permitted termination of pregnancy when the

gestational age was 26 weeks, in view of the recommendation of

the medical board and the medical report revealing the threat of

severe mental injury to the woman and to the multiple complex

problems to the child, if born alive, involving complex cardiac

corrective surgery stage by stage after birth, in the event of

continuation of the pregnancy. 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. This Court also in ABC v. Union

of India : 2020(2) KHC 526, permitted termination of pregnancy

in order to save the life of the pregnant woman, who was in

physical as well as mental trauma. 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. In view of the medical report furnished in

the present case, I deem it necessary to permit termination of

pregnancy of the 1st petitioner.

6. Therefore, having regard to the urgency involved in the

matter, there shall be a direction to the 5 th respondent to see

that the termination of pregnancy of the 1st petitioner is

carried out at the earliest, by competent doctors in accordance

with the provisions of the Medical Termination of Pregnancy Act,

1971, its rules and all other rules, regulations and guidelines

prescribed for the purpose.

The Writ Petition is allowed accordingly.

Sd/-

P.V.ASHA JUDGE rtr/

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 18.02.2021 ISSUED BY THE KOLLOORVILA MUSLIM JAMAATH COMMITTEE.

EXHIBIT P2 TRUE COPY OF THE OUTPATIENT RECORD DATED 08.02.2021 ISSUED BY THE SREE AVITTAM THIRUNAL HOSPITAL, THIRUVANANTHAPURAM.

EXHIBIT P3 TRUE COPY OF THE CASUALTY OUTPATIENT RECORD DATED 17.02.2020 ISSUED BY THE SREE AVITTAM THIRUNAL HOSPITAL, THIRUVANANTHAPURAM.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 23.10.2020 OF THIS HONOURABLE COURT IN WRIT PETITION(C)NO.22426 OF 2020.