Kerala High Court
Xxx vs Union Of India Represented By The ... on 4 January, 2021
W.P(C).No.29230/2020-C 1
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.29230 OF 2020(C)
PETITIONER:
XXX
VICTIM, AGED 14 YEARS
REPRESENTED BY THE MOTHER AND THE NATURAL GUARDIAN.
BY ADV. SRI.RAMESH .P
RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
SASTHRI BHAVAN, NEW DELHI-110 001.
2 STATE OF KERALA, REPRESENTED BY THE SECRETARY,
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
3 STATION HOUSE OFFICER,
CHAKKARAKKALLU POLICE STATION,
KANNUR POST, KANNUR-670 007.
4 THE DIRECTOR,
DEPARTMENT OF GYNECOLOGY, GOVERNMENT MEDICAL
COLLEGE HOSPITAL, PARIYARAM, KANNUR-670503.
5 SUPERINTENDENT, GOVERNMENT MEDICAL COLLEGE
HOSPITAL, PARIYARAM, KANNUR-670 503.
6 THE CHILD WELFARE COMMITTEE,
THIRUVANANTHAPURAM, GOVERNMENT CHILDREN'S HOME,
POOJAPPURA,THIRUVANANTHAPURAM-695012,
REPRESENTED BY THE CHAIRPERSON.
7 ADDL R7: THE CHILD WELFARE COMMITTEE, KANNUR.
(ADDL.R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED
29-12-2020 IN WP(C)29230/2020)
SMT.VINITHA.B, GOVERNMENT PLEADER,
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:
W.P(C).No.29230/2020-C 2
P.V.ASHA J.
---------------------------------
W.P.(C) No.29230 of 2020-C
---------------------------------
Dated this the 4th day of January 2021
JUDGMENT
The mother of a minor girl, aged 14 years, who is an
unfortunate rape victim, has approached this Court pointing
out that the girl is carrying 22 weeks of pregnancy and
continuation of her pregnancy would be critical to her
health and contrary to her interest. A Crime no.628/2020
has been registered in Chakkarakkal Police Station, in
respect of the incident. The Writ Petition is filed
producing Ext.P4 medical report dated 18.12.2020, which
found the gestational age as 22 weeks. 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
sexual assault.
2. When the matter came up for admission on
29.12.2020, this Court passed an interim order directing
the Superintendent of Government Medical College Hospital,
Pariyaram, to constitute a medical board with all
specialists required to conduct medical termination of
pregnancy and file a report before this Court in respect of
the medical condition of the child and all other related
aspects for conducting the procedure of medical
termination.
3. The learned Government Pleader has made available
the minutes of the Medical Board convened on 29.12.2020
pursuant to the interim order passed by this Court in which
it is stated as follows:
"Minutes of the Medical Board Convened on 29.12.2020
reg. the POCSO, Cr.no.628/2020 of Chakkarakkal Police
Station and W.P.(C) No. 29230 of 2020-P of Hon'High Court
of Kerala.
Members Present:
1. Dr.K.M. Kuriakose, Principal & Chairman
2. Dr. Sudeep K, Medical Superintendent
3. Dr Ajith S. HOD OBGYN
4. Dr Beena George, Professor, OBGYN
5. Dr Dhruhin A V. Professor, Psychiatry
Based
on the report of the medical officer, Dr Beena George,
Professor, Dept. Of Obstetrics and Gynaecology, after
examination of the victim of POCSO case, crime no: 628/2020
of Chakkarakkal Police Station who was brought to
Government Medical College, Kannur on 18/12/2020 the
Medical Board examined the case and came to the following
conclusions.
1. The victim is now having a pregnancy of period of
gestation 23 weeks plus 4 days.
2. As she is only 14 years old, continuation of
pregnancy may be detrimental to the physical and mental
health of the victim.
3. The usual means of termination of pregnancy
involves oral medication followed by mechanical induction
with a view towards vaginal expulsion of products of
conception.
4. The Medical board felt that the available methods
of MTP are effective only upto 20 weeks of gestation.
Beyond 20 weeks, pregnancy is to be induced as per
induction of normal pregnancy.
5. In view of the gestational age of 23 weeks plus 4
days, in addition to the usual risks like haemorrhage,
sepsis, risk of blood transfusion etc, due to the present
gestational age, there is a possibility that the uterus may
not respond to the usual methods of medical induction. In
that situation we may have to resort to surgical
methods(hysterotomy) which involves anaesthesia and
surgical risks.
6. There is a possibility that the child may be born
alive, however the chances of survival is remote.
7. As per National Resuscitation Programme Guidelines
- India and American Academy of Paediatrics, resuscitation
is considered only after completion of 24 weeks of
pregnancy. If the baby is born before 24 weeks gestational
age, resuscitation need not be considered.
8. Dr. Dhruhin A V, Professor, Dept. of Psychiatry
after examination of the victim, opined that continuation
of pregnancy may result in severe psychiatric trauma. Hence
it was suggested that termination of pregnancy could be
considered.
9. Moreover, the victim and her mother are requesting
for termination of pregnancy."
From the report, it is seen that as on today the
gestational age is 25 weeks and 3 days. The Psychiatrist,
who examined her has reported that the continuance of
pregnancy will result in serious psychiatric trauma to the
minor.
4. 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 Sections 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. 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 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 pregnancy 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.
6. 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."
7. Therefore, the petitioner is permitted to subject
her daughter 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, Kannur,
Pariyaram to see that the termination of pregnancy of the
minor girl-the daughter of the 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.
8. 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.
9. The petitioner is accordingly directed to report
with her minor daughter before the Superintendent of the
Government Medical College, Kannur, Pariyaram today itself.
10. The Registry and all concerned, shall see that
absolute privacy is maintained with respect to the
identity of the petitioner and that of minor girl 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, JUDGE)
rtr/
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RECOMMENDATION LETTER FROM
THE LEARNED SECRETARY(SUB JUDGE) OF DLSA,
KANNUR DATED 21/12/2020.
EXHIBIT P2 TRUE COPY OF THE LETTER FROM KERALA MAHILA
SAMAKHYA SOCIETY,AN AFFILIATE OF CHILD
WELFARE COMMITTEE, DATED 21/12/2020.
EXHIBIT P3 TRUE COPY OF THE FIR IN CRIME NO.0628/2020
DATED 15/12/2020.
EXHIBIT P4 TRUE COPY OF THE MEDICAL REPORTS FROM THE
RESPONDENTS 4 AND 5 DATED 18/12/2020.
EXHIBIT P5 TRUE COPY OF THE CONSENT LETTER FROM THE
VICTIM AND THE MOTHER OF THE VICTIM DATED
21/12/2020.
