Afja S. H vs State Of Kerala
2021 Latest Caselaw 2736 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                THE HONOURABLE SMT. JUSTICE P.V.ASHA

      MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                      WP(C).No.1319 OF 2021(L)


PETITIONER:
              AFJA S. H.
              AGED 32 YEARS
              W/O. NAWAB, HOUSE NO.1/1961, YMACA ROAD, FORT KOCHI,
              PIN - 682 001, ERNAKULAM DISTRICT.

              BY ADVS.
              SRI.P.T.MOHANKUMAR
              SRI.GEORGE CHERIAN

RESPONDENTS:
       1     STATE OF KERALA
             REPRESENTED BY THE SECRETARY, DEPARTMENT OF WOMEN AND
             CHILD DEVELOPMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.

      2       THE DISTRICT MEDICAL OFFICER
              OFFICE OF THE DMO - ERNAKULAM, ERNAKULAM - 682 011.

      3       THE SUPERINTENDENT
              GOVERNMENT MEDICAL COLLEGE HOSPITAL, KALAMASSERY,
              ERNAKULAM, PIN - 683 503.

      4       DIRECTOR
              DEPARTMENT OF GYNAECOLOGY AND OBSTETRICS, ASTER
              MEDICITY, SOUTHE CHITOOR P. O., CHERANALLOOR, KOCHI -
              682 027.

      5       THE SUPERINTENDENT
              THE GOVERNMENT GENERAL HOSPITAL, ERNAKULAM, PIN - 682
              011.


      6       ADDL. 6TH RESPONDENT THE SUPERINTENDENT,
              GOVERNMENT T.D., MEDICAL COLLEGE HOSPITAL,
              ALAPPUZHA IS SUOMOTU IMPLEADED AS PER ORDER DATED
              2201.2021 IN WPC NO.1319/2021

              GP-- SMT PRINCY XAVIER .

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1319/2021

                                          2




                                     JUDGMENT

The petitioner has filed this Writ Petition producing

Exts.P1 to P6 scan reports/medical opinion seeking a

direction to the respondents to carry out medical

termination of her pregnancy. The scan reports would show

severe abnormalities to the fetus. The gestation age of the

fetus was 20 weeks and 5 days as on 15.01.2021. She has also

produced Ext.P7 e-mail by which her husband, who is a

sailor, has given consent for termination of pregnancy.

2. When the matter came up for admission on

18.01.2021 this Court passed an interim order directing the

5th respondent to constitute a Medical Board to examine and

report the medical condition of the petitioner and the

fetus.

3. However, on 22.01.2021 when the matter came up for

consideration, the learned counsel for the petitioner made

available a copy of the Government Order dated 31.12.2020 by

which the Government has constituted a Medical Board for

examining the cases of MTP where gestation period exceeded

20 weeks. Therefore, the Superintendent, Government T.D. WP(C).No.1319/2021

Medical College Hospital, Alappuzha was impleaded as

additional 6th respondent and direction was issued to

examine the petitioner and to make available the report.

4. Smt.Princy Xavier, the learned Government Pleader,

has made available the report of the medical board which

would show that the medical board was convened on

23.01.2021 with the following members:

                    1.      Dr.         R.V.Ramlal,         Chairman             &
                    Superintendent
                    2. Dr.Sathiamma P K, Prof.OBG Dept
                    3.     Dr.Jayaram       Sankar    K     R,    Asso      Prof
                    Paediatrics Dept

4. Dr.Suma Job, Asso Prof Radiodiagnosis Dept

5. Dr.Baiju R, Addl Prof Cardiology Dept

6. Dr.P S Shajahan, Addl Prof Pulmonary Medicine Dept

7. Dr.Shaji C V, Prof & HOD Neuromedicine Dept

8. Dr.Rema Priyadarsini, Prof & HOD Pathology

5. The report of the medical Board state as follows:

"Foetal heart shows prominent aorta, small pulmonar artery, and VSD. Features consistent with fetal echo findings of tetrology of fallot with pulmonary stenosis.

Impression Singly live intrauterine fetus with average gestational age 21 weeks 6 days with fetal echo findings WP(C).No.1319/2021

of tetrology of fallot with pulmonary stenosis."

In the report it is also stated as follows:

The Medical Board Clinically assessed the patient and obstetric ultrasound was done (Report attached). We have also gone through the medical records made available by the Hon.High Court of Kerala and reached the following conclusions.

Mrs.Afja is a case of two previous Cesarean sections. Clinically, now the uterine size corresponds to 20 weeks and sonologically 21 weeks 6 days which corresponds to the period of amenorrhea. Sonologically, fetus has got features of Tetrology of Fallot with pulmonary stenosis.

Mrs Afja is mentally upset regarding the continuation and outcome of pregnancy. She has no other co morbidities which contra indicate MTP except for the risk related to previous two Caesarean sections.

The above medical condition of the fetus as such is scientifically not an indication for MTP. However, since this pregnancy is less than 24 weeks of gestation and considering the mental anguish of the patient and her social status, as per The MTP Act amended in 2020, MTP may be considered for her."

6. 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 WP(C).No.1319/2021

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."

7. 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 WP(C).No.1319/2021

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 in which the gestations

age of the fetus is shown as 21 weeks 6 days, I deem it

necessary to permit termination of pregnancy of the

petitioner.

8. Therefore, having regard to the urgency involved

in the matter, there shall be a direction to the additional

6th respondent to see that the termination of pregnancy of

the petitioner is carried out at the earliest point of WP(C).No.1319/2021

time, 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.

9. In case the child is born alive, in the process of

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.

The Writ Petition is allowed accordingly.

Sd/-

P.V.ASHA JUDGE rtr/ WP(C).No.1319/2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE ULTRASOUND SCAN REPORT DATED 06.01.2021 PREPARED BY DR. PARVATHY RAJENDRAN, THE CONSULTANT RADIOLOGIST.

EXHIBIT P2 TRUE COPY OF THE SCAN REPORT DATED 12.01.2021 PREPARED BY DR. UNNIKRISHNAN R., CONSULTANT RADIOLOGIST.

EXHIBIT P3 TRUE COPY OF THE FOETAL ECO REPORT DATED 14.01.2021 PREPARED BY DR. AMITOZ SINGH BAIDWAN, CONSULTANT RADIOLOGIST.

EXHIBIT P4 TRUE COPY OF THE SCAN REPORT DATED 15.01.2021 PREPARED BY DR. BIJOY K.

BALAKRISHNAN, CONSULTANT GYNECOLOGIST AND DR. MEENU BATRA PARASURAM, CONSULTANT RADIOLOGIST.

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 15.01.2021 BY THE PANEL OF 3 DOCTORS OF CIMAR FERTILITY CENTRE, EDAPPALLY, ERNAKULAM.

EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 15.01.2021 ISSUED BY DR. SHAMEEMA ANVARSADATH, SENIOR CONSULTANT, OBSTETRICIAN AND GYNECOLOGIST, ASTER MEDICITY, ERNAKULAM.

EXHIBIT P7 TRUE COPY OF THE EMAIL COMMUNICATION DATED 17.01.2021 BY PETITIONER'S HUSBAND TO THE COUNSEL.

RESPONDENTS EXIBITS : NIL

//TRUE COPY//

PA TO JUDGE