Kerala High Court
Xxxxxx vs The Union Of India on 23 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 23RD DAY OF JUNE 2023 / 2ND ASHADHA, 1945
WP(C) NO. 15534 OF 2023
PETITIONER:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV K.RAKESH
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF WOMEN AND
CHILD DEVELOPMENT, SASTHRI BHAVAN,
NEW DELHI, PIN - 110001
2 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND
FAMILY WELFARE DEPARTMENT, SECRETARIAT,
TRIVANDRUM, PIN - 695001
3 THE DISTRICT COLLECTOR
COLLECTORATE, CIVIL STATION, UP-HILL,
MALAPPURAM, PIN - 676505
4 THE DISTRICT MEDICAL OFFICER
OFFICE OF THE DISTRICT MEDICAL OFFICER, UPHILL,
MALAPPURAM, PIN - 676505
5 THE SUPERINTENDANT
GOVERNMENT MEDICAL COLLEGE HOSPITAL, MANJERI,
MALAPPURAM DISTRICT, PIN - 676121
6 THE SUPERINTENDANT
GOVERNMENT MEDICAL COLLEGE HOSPITAL,
KOZHIKKODE, PIN - 673008
7 THE STATION HOUSE OFFICER
VAZHIKADAVU POLICE STATION, VAZHIKADAVU P.O.,
MALAPPURAM DISTRICT, PIN - 679333
8 THE CHILD WELFARE COMMITTEE
REPRESENTED BY ITS CHAIRMAN, THAVANOOR, MALAPPURAM
WP(C) NO. 15534 OF 2023
2
DISTRICT, PIN - 679573
9 ADDL.R9: KULATHOOR JAISINGH, AGED 45
YEARS, S/O LATE DEVANESAN, THUNDUVILA,
KULATHOOR, UCHAKKADA P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 506
(IS SUOMOTU IMPLEADED AS ADDITIONAL 9TH
RESPONDENT IN THE WRIT PETITION AS PER
ORDER DATED 23.06.2023 IN I.A.NO.3/2023)
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SARIN
M.R.SASITH
P.SANTHOSHKUMAR (KARUMKULAM)
SNEHA JOY
PARVATHI KRISHNA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.06.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 15534 OF 2023
3
P.V.KUNHIKRISHNAN, J.
------------------------------
W.P.(C)No. 15534 of 2023
----------------------------------------------
Dated this the 23rd day of June, 2023
JUDGMENT
The father of a minor girl aged 15 years filed
this writ petition with a main prayer to terminate
the pregnancy of his daughter. It is stated that the
minor son of the petitioner impregnated her minor
daughter. I am sure that the petitioner, the father
of these minor children put his signature in this writ
petition with tears in his eyes. He and his wife has
to face this embarrassing situation not only today
but in future too. It is the duty of our society to
keep these parents close to get over from this
trauma. Nobody can blame the parents. But,
WP(C) NO. 15534 OF 2023
we the society is responsible for this. Sibling incest
may take place in the context of a family system
that does not provide a safe environment for its
members. But it may also happen because of the
lack of knowledge about safe sex. I am of the
considered opinion that the Government should
seriously think about the necessity of proper 'sex
education' in schools and colleges. This court
observed like this on earlier occasion also. Safe sex
education is the need of the hour to avoid these
type of embarrassment to the parents. A good
family atmosphere is necessary in the society. To
attain this, every citizen of this country should join
together without pelting stone to such unfortunate
people. The above writ petition is filed with the
following prayers:
"(i) Issue a writ of mandamus or any
WP(C) NO. 15534 OF 2023
other appropriate writs, orders of directions
directing the respondents to terminate the
pregnancy of the victim girl in Crime
No.331/2023 of the Vazhikadavu Police Station
as expeditiously as possible;
(ii) Declare that the pregnancy would
cause serious mental injury to the minor girl
and hence the same is liable to be terminated;
(iii) Issue a writ of mandamus or any
other appropriate writs, orders of directions
directing the 8th respondent to restore the
custody of the minor girl child to her parents
forthwith;
(iv) Dispense with the filing of English
translation of Vernacular documents;
(v) Grant such other reliefs as this
Hon'ble Court may deem fit and proper in the
circumstances of the case."[SIC]
2. When this writ petition came up for
consideration on 16.05.2023, this Court passed the
following order:
"When the matter came up before this Court
on 12.5.2023, the learned Government Pleader
WP(C) NO. 15534 OF 2023
submitted that the victim was produced before the
Medical Board on 11.05.2023. She sought for time
to produce the medical reports.
2. Today, the learned Government Pleader
makes available the medical report of the Special
Medical Board constituted by Superintendent,
Government Medical College Hospital, and the
observations in the report are extracted
hereunder:-
Opinions of the Medical Board after
Examination are
"1. Child is physically and mentally fit
for Medical Termination of Pregnancy.
2. Continuation of pregnancy is likely to
cause grave injury to the social and mental
health of the child.
3. Physical health of the child is likely to
be affected by the complication of teenage
pregnancy.
4. As she has crossed 32 weeks of
pregnancy there is a possibility of giving birth
to a live baby with all the problems of
prematurity. So the Medical Board has raised
concerns about the further care of the baby in
case needed."
3. Since risk factors are involved, the
WP(C) NO. 15534 OF 2023
petitioner is to file an affidavit before this Court
undertaking to undergo the risk shown in the
report of the Medical Board. The Medical Board
shall also evaluate the possibility of saving the life
of the baby before termination of pregnancy.
Post on 19.05.2023.
Hand Over "
3. Thereafter, when the matter came up for
consideration on 19.05.2023, this Court passed the
following order:
"The petitioner is the father of a minor girl aged
15 years and he has approached this Court,
seeking the following reliefs:
(i) Issue a writ of mandamus or any other
appropriate writs, orders of directions directing
the respondents to terminate the pregnancy of
the victim girl in crime No.331/2023 of the
Vazhikadavu Police Station as expeditiously as
possible;
(ii) Declare that the pregnancy would cause
serious mental injury to the minor girl and
hence the same is liable to be terminated;
(iii) Issue a writ of mandamus or any other
appropriate writs, orders of directions directing
the 8th respondent to restore the custody of
WP(C) NO. 15534 OF 2023
the minor girl child to her parents forthwith;
(iv) Dispense with the filing of English
translation of Vernacular documents; (v) Grant
such other reliefs as this Hon'ble Court may
deem fit and proper in the circumstances of the
case."
2. The unfortunate situation in this case is
as follows:
The minor daughter of the petitioner got
impregnated by the son of the petitioner and as of
now the daughter is 7 months pregnant. The
prayer as above is sought in such circumstances.
3. In response to the averments contained
in the writ petition, the Medical Board after
examination, submitted a report wherein, their
opinion was expressed in the manner as follows:
"Opinions of the Medical Board after
Examination are
1. Child is physically and mentally fit for
Medical Termination of pregnancy.
2. Continuation of pregnancy is likely to cause
grave injury to the social and mental health of
the child.
3. Physical health of the child is likely to be
affected by the complication of teenage
pregnancy.
4. As she has crossed 32 weeks of pregnancy
there is a possibility of giving birth to a live
WP(C) NO. 15534 OF 2023
baby with all the problems of prematurity. So
the Medical Board has raised concerns about
the further care of the baby in case needed."
4. Earlier, when the matter came up for
consideration before this Court, taking note of the
eventuality as highlighted by the Medical Board as
serial No.4 above, the petitioner was directed to
submit an affidavit, undertaking to undergo the
risks as highlighted by the Medical Board. In
compliance of the aforesaid direction, an affidavit
has been submitted by the petitioner.
5. Upon perusal of the medical report, it is
evident that, the child is physically and mentally
fit for medical termination of pregnancy. It is also
stated that continuation of pregnancy is likely to
cause grave injury to the social and mental health
of the child. Considering the fact, the child is born
from his own sibling, various social and medical
complications are likely to arise. In such
circumstances, the permission as sought for by
the petitioner to terminate the pregnancy is
inevitable. However, even while addressing the
said issue and passing appropriate orders in this
regard, the possibility of giving birth to a live baby
cannot be overruled, as highlighted by the Medical
WP(C) NO. 15534 OF 2023
Board.
6. In such circumstances, I am inclined to
allow medical termination of pregnancy of the
daughter of the petitioner, in the light of the
principles laid down by this Court in the decisions
reported in xxx v. Union of India and others
[2021(3) KLT 279] and xxx v. Union of India
and others [2022 KHC 2022]. Therefore, it is
ordered that, respondents 4 and 5 are directed to
take urgent steps to medically terminate the
pregnancy of minor daughter of the petitioner
without any delay. After completion of the
procedure, a report in this regard shall be
submitted before this Court to enable the Court to
pass appropriate orders for addressing the further
issues that are likely to arise in this case.
Post after a week."
4. Again when the matter came up for
consideration on 02.06.2023, this Court passed the
following order:
"The petitioner is free to submit an
application before the 8th respondent seeking
restoration of the child in accordance to Sec. 40 of
WP(C) NO. 15534 OF 2023
Juvenile Justice (Care and Protection of Children)
Act, 2015 by tomorrow. If such an application is
received, the 8th respondent will consider the same
and take a decision in it, in consultation with the
doctors, within one week from the date of receipt
of the application. The order passed by the 8 th
respondent will be produced before this Court.
2. Regarding the discharge of the petitioner's
child, the Police authorities can do the needful in
consultation with the medical authorities. The
custody of the new born child of the minor girl also
will be decided by the 8 th respondent in accordance
to Sec.35 of the Juvenile Justice Act.
3. Post on 09.06.2023.
Issue a copy of this order today itself."
5. Today when the matter came up for
consideration, both sides submitted that, as per
order dated 03.06.2023, the Child Welfare
Committee, Malappuram handed over the minor
mother to her uncle. The order is produced before
this Court. It will be better to extract the relevant
portion of the above order:
WP(C) NO. 15534 OF 2023
"മമൽ പ്പറഞ്ഞ വസ്തുതകളളും ബഹുമമാനപപ്പട്ട മകരള
ഹഹൈമകമാടതതിയുപട ഉത്തരവളും പരതിഗണതിച്ചു ഈ ഹചൽഡഡ
പവൽപഫെയർ കമതിറതി തമാപഴെ പറയുളും പ്രകമാരളും ഉത്തരവമാകുന.
1. കുട്ടതിപയ കുട്ടതിയുപട അമമാവനതിൽ നതിനളും undertaking വമാങതി
അമമാവപനമാപ്പളും വതിട്ടു നൽകുന.
2. കുട്ടതികഡ ആവശശ്യമമായ കകൺസതിലതിളുംഗഡ അടകമുള്ള പതിന്തുണ
കുട്ടതിയുപട രകതിതമാകൾ ആവശശ്യപപ്പടുന്നതതിനഡ അനുസരതിചഡ
കുട്ടതികഡ സകകരശ്യപ്രദമമായ സ്ഥലത്തഡ പവചഡ നൽകമാൻ ജതിലമാ
ഹചൽഡഡ പപ്രമാട്ടകൻ ഓഫെഫീസമറമാടഡ നതിർമദ്ദേശതിക്കുന.
3. കുട്ടതിപയ കമാവൽ പ്ലസഡ പദ്ധതതിയതിൽ ഉൾപപ്പടുത്തുന."
6. As far as the new born child is concerned,
the Child Welfare Committee informed that the new
born child is surrendered to the committee and a
consequential order is also passed. The relevant
portion of the order No.CWC/M/1547/2022 dated
07.06.2023 passed by the Child Welfare
Committee, Malappuram is extracted here under:
"ടടി കകേസടിലലെ അതടിജജീവടിതയയായ കുടടിലയ 6/5/2023
WP(C) NO. 15534 OF 2023
നന് വഴടിക്കടവന് കപയാലെജീസന് മലെപ്പുററം ചചൈൽഡന് ലവൽലഫെയർ
കേമടിറടി മുൻപയാലകേ ഹയാജരയാക്കുകേയറം അതടിജജീവടിതലയ xxxx
ലമഡടിക്കൽ കകേയാകളേജടിൽ പ്രകവശടിപടിക്കുകേയറം അതടിജജീവടിതയന്
xxxxx ലമഡടിക്കൽ കകേയാകളേജടിൽ വചന് Induced delivery
യടിൽ കുടടി ജനടിക്കുകേയറം ലചൈയ . നവജയാത ശടിശുവടിലന
ലവൽലഫെയർ കേമടിറടി മുമയാലകേ സറണ്ടർ ലചൈയയാൻ
അതടിജജീവടിതയലട മയാതയാപടിതയാക്കൾ സമതറം അറടിയടിക്കുകേയറം
ആയതടിലന്റെ അടടിസയാനതടിൽ 5/6/2023 നന് xxxx
ശടിശുകക്ഷേമ സമടിതടിയലട കേജീഴടിൽ പ്രവർതടിക്കുന്ന ശടിശു
പരടിപയാലെന കകേന്ദ്രതടികലെക്കു മയാറ്റുകേയറം തുടർന്നന് 7/6/2023
അതടിജജീവടിതയലട മയാതയാവറം അതടിജജീവടിതയറം xxxx
ചചൈൽഡന് കേമടിറടി അറംഗറം xxxxxxxxx മുൻപയാലകേ
ഹയാജരയായടി കുടടിലയ സറണ്ടർ ലചൈയ്ത കരഖകേൾ ഒപടിട
നൽകുകേയറം ലചൈയ്തടിടള്ളതയാണന്. ടടി നവജയാത ശടിശു വടിലന
xxxx ചചൈൽഡന് ലവൽലഫെയർ കേമടിറടി മുമയാലകേ സറണ്ടർ
ലചൈയ്ത വടിവരറം പ്രഖഖയാപടിക്കുകേയറം xxxxx ശടിശു പരടിപയാലെന
കകേന്ദ്രതടിൽ സറംരക്ഷേടിചന് പരടിപയാലെടിക്കുകേയറം ലചൈയ്യുന."
7. In the light of the above orders, I think
no further order is necessary. The Child Welfare
WP(C) NO. 15534 OF 2023
Committee will take necessary consequential steps
in accordance with law. The protection of the new
born child is the duty of the state. These types of
causalities shall not be there in our society in
future. The embarrassment of the parents and also
the victim girl cannot even be imagined. As I said
earlier, this happened because of the lack of
knowledge about the safe sex. Minor children are in
front of 'internet' and 'google search'. There is no
guidance to the children. The Government should
constitute a committee, if necessary, to study the
issue and should think about including the 'safe sex
education' in the curriculum of schools and
colleges.
The Registry will forward a copy of this
judgment to the Chief Secretary, State of Kerala for
taking appropriate action in the light of the facts
WP(C) NO. 15534 OF 2023
and circumstances of this case.
With the above observation, this writ petition
is disposed of.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
WP(C) NO. 15534 OF 2023
APPENDIX OF WP(C) 15534/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FIR AND FIS IN
CRIME NO.331/2023 OF THE VAZHIKADAVU
POLICE STATION DATED 6-5-2023.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
