Xxx vs State Of Kerala
2021 Latest Caselaw 25 Ker

WP(C).No.29209 OF 2020(A)
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                      WP(C).No.29209 OF 2020(A)


PETITIONER/S:

      1         XXX
                AGED 37 YEARS
                X

      2         YYY
                AGED 34 YEARS
                X

      3         ABC
                AGED 15 YEARS
                MINOR

                BY ADV. SRI.ADITHYA RAJEEV

RESPONDENT/S:

      1         STATE OF KERALA
                REPRESENTED BY SECRETARY, MINISTRY OF CHILD
                WELFARE, THYCAUD, THIRUVANANTHAPURAM, PIN-695 014.

      2         THE DIRECTOR OF MEDICAL EDUCATION
                DIRECTORATE OF MEDICAL EDUCATION,MEDICAL COLLEGE
                P.O., THIRUVANANTHAPURAM, PIN-695 011.

      3         THE DIRECTOR OF MEDICAL SERVICES, GENERAL HOSPITAL
                JUNCTION, THIRUVANANTHAPURAM-695 035.

      4         THE DISTRICT MEDICAL OFFICER
                KOTTAYAM DISTRICT, OFFICE OF THE DISTRICT MEDICAL
                OFFICER, KOTTAYAM-686 002.

      5         THE SUPERINTENDENT OF MEDICAL COLLEGE HOSPITAL
                KOTTAYAM GANDHI NAGAR P.O., KOTTAYAM, PIN-686 008.

      6         THE UNION OF INDIA
                REPRESENTED BY ITS SECRETARY, MINISTRY OF WOMEN AND
                CHILDREN DEVELOPMENT, SASTHRI BHAVAN, NEW DELHI,
                PIN-110 001.
 WP(C).No.29209 OF 2020(A)
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OTHER PRESENT:

             SMT.PRINCY XAVIER,GP,
             ASGI SRI.P.VIJAYAKUMAR

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.29209 OF 2020(A)
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                                     JUDGMENT

Dated this the 4th day of January, 2021

An unfortunate minor rape victim girl aged 15 years, has

approached this Court along with her parents, pointing out that

the girl is carrying about 23 weeks of pregnancy and that

continuation of her pregnancy would be contrary to her interest.

Crime No.1171/2020 has been registered in Thrikodithanam Police

Station, in respect of the incident. The Writ Petition is filed

producing Exts.P3 and P5 medical reports dated 09.12.2020 and

15.12.2020. As per Ext.P3 report the gestational age was found

to be 22 weeks and 6 days as on 09.12.2020. It is stated that

victim girl is not mentally prepared to accept the pregnancy and

that there is high risk in the event of continuation of her

pregnancy as she has been subjected to the trauma of sexual

assault.

2. When the matter came up for admission on 29.12.2020,

this Court passed an interim order directing the District

Medical Officer, Kottayam to constitute a medical board with all

specialists required to conduct medical termination of pregnancy

and file a report before this court traversing through the

entire aspects.

3. The learned Government Pleader has made available the

minutes of the Medical Board convened on 31.12.2020 with the WP(C).No.29209 OF 2020(A)

following members:

1. Dr.Shainimol A Thachankary (Consultant, Gynaecology)

2. Dr.Asha Sreedhar (Junior Consultant, Gynaecology)

3. Dr.Anju S.V. (Junior Consultant, Anaesthesia)

4. Dr.Leena Gem John, (Junior Consultant, Paediatrics)

5. Dr.Anjana Menon P. (Junior Consultant, Forensic Medicine)

The opinion of the medical board is the following:

Opinion regarding continuation of pregnancy:

Continuation of pregnancy in teenage girls is having high risk of developing preeclampsia, anemia, post-partum haemorrhage, Hysterectomy, low birth weight for baby perinatal death, post-traumatic stress disorders.

Opinion regarding the MTP:

Since the girl is 15 years and the pregnancy has advanced up to 26-28 were there is high risk for the life of the girl for the following reasons.

1. Failure of expulsion of fetus by medical management for MTP may end up in hysterotomy and excessive hemorrhage and hysterectomy and may endanger her life.

2. Incomplete expulsion of products of conception may lead to infection,bleeding and sepsis.

3. Amniotic fluid embolism, pulmonary embolism may happen

4. Anesthetic complications during surgical procedures.

Hence MTP should be done, if necessary, at a highly equipped tertiary care Centre with ICU facilities with incorporation of all specialities.

4. From the report, it is seen that as on today the

gestational age is 26 weeks 4 days+/-2 weeks. The medical board WP(C).No.29209 OF 2020(A)

has reported that the continuance of pregnancy is having high

risk and post traumatic stress disorders. It is also stated that

MTP has to be done in a hospital with highly equipped

facilities.

5. 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.

6. This court has in the judgments in ABC V Union of India

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

2016 (4) KLT 745, etc, have 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. The Apex court has in the judgment in A V. Union of

India: (2018)4 SCC 75 permitted termination in a case where the

gestational age was 25-26 weeks. In Murugan Nayakkar V Union of

India: 2017 SCC online SC 1092 allowed termination of pregnancy

in the case of 13 year old child and 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 WP(C).No.29209 OF 2020(A)

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. In

the judgment reported in Neethu Narendran V State of Kerala:

2020(3)KHC 157 also this court permitted termination of

pregnacny when gestational age crossed 23 weeks. As found in

those cases, the minor victim in this case is also not prepared

to deliver a child in the situation. In view of the trauma that

the minor girl has undergone and taking note of the opinion of

the Psychiatrist coupled with the report of medical board, I am

of the view that the writ petition can be allowed permitting

termination of pregnancy.

7. In the event the baby is born alive, it has to be taken

care of as observed by the Bombay High Court in the judgment

XYZ v. Union of India and Others :(2019 (3) Bom. CR 400), as

follows :

"If a child is born alive, despite attempts at the medical termination of pregnancy, the parents as well as the doctors owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. The extreme vulnerability of such child is reason enough to ensure that everything, which is reasonably possible and feasible in the circumstances, must be offered to such child so that it develops into a healthy child."

8. Therefore, petitioners 1 and 2 are permitted to subject WP(C).No.29209 OF 2020(A)

their daughter-3rd petitioner to medical termination of

pregnancy. As any delay in undertaking the termination will

involve serious consequences affecting the girl as well as the

life of the baby in the womb, there shall be a direction to the

Superintendent of Government Medical College, Kottayam to see

that the termination of pregnancy of the minor girl- the 3rd

petitioner is undertaken by competent doctors under his/her

supervision, at the earliest point of time, if possible, today

itself 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 Medical Board shall maintain a complete record of the

procedure which is to be performed on the girl for termination

of her pregnancy.

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

the tissue of the foetus for DNA identification and to maintain

the same intact for future purposes, especially due to the fact

that a criminal case is pending in the instant case. If the

child is born alive, despite the attempts at medical termination

of the pregnancy, the doctors shall ensure that everything,

which is reasonably possible and feasible in the circumstances

and in contemplation of the law prescribed for the purpose, is

offered to such child so that he/ she develops into a healthy

child.

10. As the minor girl is accommodated at Children's Home, WP(C).No.29209 OF 2020(A)

Kottayam, there shall be a direction to the Superintendent of

the Children's Home, Kottayam to produce the child victim before

the Superintendent of the Government Medical College, Kottayam

today itself.

The Registry and all concerned, shall see that absolute

privacy is maintained with respect to the identity of the

petitioners 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 accordingly.

Sd/-

                                                  P.V.ASHA

rkc                                                 JUDGE
 WP(C).No.29209 OF 2020(A)




                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           A TRUE COPY OF THE BIRTH CERTIFICATE OF THE

3RD PETITIONER DATED 13.03.2006 ISSUED BY THE REGISTRAR ARPOOKARA GRAMA PANCHAYAT.

EXHIBIT P2 A TRUE COPY OF THE REMAND REPORT IN CRIME NO.1171 OF 2020 OF THE THRIKODITHANAM POLICE STATION.

EXHIBIT P3 A TRUE COPY OF THE ULTRASONOGRAPHIC REPORT-

OBS OF THE 3RD PETITIONER DATED 9.12.2020 ISSUED BY PRIME SCANS AND LABORATORIES.

EXHIBIT P4 A TRUE COPY OF THE ORDER OF PLACEMENT OF A CHILD IN AN INSTITUTION DATED 14.12.2020 ISSUED BY THE CHILD WELFARE COMMITTEE KOTTAYAM.

EXHIBIT P5 A TRUE COPY OF THE REPORT DATED 15.12.2020 ISSUED BY THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM.