Neethu Suhas vs The State Of Kerala
2022 Latest Caselaw 8132 Ker

  WP(C).20872/22                     1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
     FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                        WP(C) NO. 20872 OF 2022
PETITIONER/S:

    1      NEETHU SUHAS
           AGED 29 YEARS
           W/O SUHAS, D/O KARTHIKEYAN, PALLATH HOUSE,
           EDATHURUTHY PO., THRISSUR-680703.

    2      KARTHIKEYAN A G,
           AGED 63 YEARS
           S/O GOPALAN A P, ANAKKATHIPARAMBIL HOUSE,
           EDATHIRIINJI P.O., THRISSUR- 680703.

    3      SARASWATHY,
           AGED 68 YEARS
           W/O SUGUNAN P.S., PALLATH HOUSE, EDATHURUTHY P.O.,
           THRISSUR - 680703.

           BY ADVS.
           K.R.RAJKUMAR
           JAGADEESH LAKSHMAN
           RAHUL RAJ



RESPONDENT/S:

    1      THE STATE OF KERALA
           REPRESENTED BY SECRETARY, DEPARTMENT OF WOMEN &
           CHILD DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM-
           695001.

    2      THE DIRECTOR,
           DEPARTMENT OF GYNAECOLOGY, THRISSUR, GOVERNMENT
           MEDICAL COLLEGE, THRISSUR- 680005.

    3      THE CHAIRMAN,
           MEDICAL BOARD, O/O DISTRICT MEDICAL OFFICER, NEW
           MEDICAL COLLEGE HOSPITAL, MULANKUNNATHUKAVU,
           THIRSSUR - 680005.

    4      THE CHAIRMAN,
           DISTRICT CHILD WELFARE COMMITTEE, GOVERNMENT
      WP(C).20872/22                      2

              CHILDREN'S HOME, RAMAVARMAPURAM P.O., THRISSUR
              -680631.


OTHER PRESENT:

              GP P.S.APPU




        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    01.07.2022,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
   WP(C).20872/22                        3




                              V.G.ARUN, J.
               -----------------------------------------------
                     W.P(C).No. 20872 of 2022
               -----------------------------------------------
               Dated this the 1st day of July, 2022

                               JUDGMENT

The first petitioner is pregnant by 33 weeks. She had

undergone a Trimester scan on 20.6.2022. The scan indicated early

onset of foetal growth restriction and report contains the following

comments;

"There is distension of the stomach and a dilated proximal duodenum, suggesting obstruction at the level of the distal duodenum suggestive of atresia/stenosis. Along with this, there is growth restriction (EFW at 3rd centile - 28 weeks 4 day) and renal findings. Foetal dopplers are normal with high resistance in the mean uterine artery Doppler.

Such collective findings point to an increased possibility of chromosomal abnormalities like Down's syndrome in around 30% of cases. There is also a reported association with some genetic syndromes which may be evident only postnatally."

After perusing the report, her Doctor referred the first petitioner to

the Government Medical College Hospital, Thrissur. The petitioner

was thereupon subjected to further tests at the Medical College, the

results of which also indicated distal duodenal atresia/stenosis,

IUGR and single ectopic kidney (L). According to the petitioners, the

doctors had opined that continuance of the pregnancy involves risk

and there is substantial risk of intrauterine death. As the pregnancy

had crossed the permissible limit of 20 weeks, the Doctors are not

willing to medically terminate the pregnancy, without an order from

the court. Hence, this writ petition.

2. When the matter was taken up on 28.6.2022, the first

petitioner was directed to appear before the Medical Board for

examination and the Board was directed to submit a report

immediately. Accordingly, the Medical Board has submitted its

report, the relevant portion of which is extracted here under;

"Examination of Patient - Uterus 30 weeks, cephalic, Liquor adequate, FH good, (Pr.C.S, Scar Present).

From the above findings it is not possible to give definite opinion about the poor outcome of the baby. There is insufficient evaluation done to confirm Downs syndrome. She is already 33 weeks pregnant and may need repeat C.S. There is chance of anesthesia risk, need for blood transfusion and if the baby is alive at birth, risk of prematurity, baby will be given neonatal care and if needed surgery at our paediatric Centre, Government Medical College, Thrissur.

Continuation of this pregnancy may affect the Mental Health of the patient as she is very anxious and upset.

Detailed counseling done for patient - Mrs.Neethu, Mrs.Vijaya (Mother), Mr.Surgag (Brother and Mr.Sundaram (Uncle).

If the patient insist on termination it may be proceeded after detailed written informed consent. Opinion:-

If patient is willing, may continue pregnancy till baby reaches maturity, and baby may then be fully evaluated. However, there is chance of stillbirth and fetal anomalies requiring further management.

However, if she insists on termination, she may be admitted to proceed with the same."

3. As per Section 312 of the Indian Penal Code, causing a

women with child to miscarry is a punishable offence, if such

miscarriage is not caused in good faith for the purpose of saving the

life of the woman. An exception is carved out in Section 3(2) of the

Medical Termination of Pregnancy Act, 1971, which reads as under;

".....3. When pregnancies may be terminated by registered medical practitioners.--(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such

category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are,

of the 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 any serious physical or mental abnormality.

Explanation 1.--For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.--For the purposes of clauses (a) and

(b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman."

4. As per Section 5, length of the pregnancy and the opinion of

not less than two registered medical practitioners mandated by

Section 3 will not apply to the termination of a pregnancy, if the

registered medical practitioner is of opinion that termination is

immediately necessary to save the life of the pregnant woman.

5. As far as the instant case is concerned, the Medical Board

has opined about the chance of anaesthesia risk and need for blood

transfusion. Further, if the baby is alive at birth, there is risk of

prematurity also. The Board has also opined that, continuation of

pregnancy may affect the health of the patient as she is anxious

and upset and if the patient insists on termination, it may be

proceeded after obtaining detailed written informed consent.

6. Learned Counsel for the petitioners submitted that the first

petitioner is highly anxious and is on the verge of depression and

unless the pregnancy is permitted to be terminated, the she may go

into manic depression and cause harm to herself. It is contended

that the first petitioner's case falls within Section 5(1) of the Act

and warrants urgent intervention by this Court.

7. Learned Government Pleader pointed out that the Medical

Board has not given any conclusive opinion.

8. From Exhibits P1 to P3 and the report of the Medical Board,

it is evident that the first petitioner will be at risk if the pregnancy is

continued and the baby born to her may be abnormal. In such

circumstances, the first petitioner cannot be compelled to continue

the pregnancy. The freedom of a pregnant woman to take an

informed decision regarding her pregnancy cannot be curtailed by

rigid adherence to the letter of law. The plight of the hapless woman

compels me to exercise the discretionary jurisdiction in her favour.

For the reasons aforementioned, the writ petition is allowed

and the first petitioner permitted to get her pregnancy terminated

by a registered medical practitioner, at her risk.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX OF WP(C) 20872/2022

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE TRIMESTER SCAN AND THE REPORT ISSUED BY THE AMBADY FOETAL AND MATERNAL CARE CENTRE, THRISSUR DATED 20-

06-2022.

Exhibit P2 THE TRUE COPY OF THE REFERRAL REPORT OF DR. REESHA CHANDRA P. T., SACRED HEART MISSION HOSPITAL IRINJALAKKUDA DATED 23.06.2022.

Exhibit P3 THE TRUE COPY OF THE REPORT ISSUED FROM THE GOVERNMENT MEDICAL COLLEGE, THRISSUR DATED 23-06-2022.

Exhibit P4 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE THIRD RESPONDENT MEDICAL BOARD, THRISSUR DATED 27-06-2022.