Kerala High Court
Xxxxxx vs Union Of India on 4 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
SATURDAY, THE 4TH DAY OF MAY 2024 / 14TH VAISAKHA, 1946
WP(C) NO. 16366 OF 2024
PETITIONERS:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV SHAMEENA SALAHUDHEEN
RESPONDENTS:
1 UNION OF INDIA,REPRESENTED BY SECRETARY , MINISTRY
OF WOMEN AND CHILD DEVELOPMENT,SASTHRI BHAVAN ,
NEWDELHI, PIN - 110001
2 STATE 0F KERALA
REP BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
WOMEN AND CHILD DEVELOPMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE
P.O, MEDICAL COLLEGE, KUMARAPURAM ROAD,
CHALAKKUZHI, THIRUVANANTHAPURAM, PIN - 695011
4 STATION HOUSE OFFICER
AYIROOR POLICE STATION, THIRUVANANTHAPURAM RURAL,
PIN - 671313
5 THE SUPERINTENDENT,PARIYARAM MEDICAL COLLEGE,
PARIYARAM , KANNUR DISTRICT, PIN - 670502
6 KERALA MAHILA SAMAKHYA SOCIETY
URUVACHAL, MATTANNUR, KANNUR, PIN - 670702
OTHER PRESENT:
SR. GP. SMT DEEPA NARAYANAN. SR. PANEL COUNSEL
SRI. T.C KRISHNA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30.04.2024, THE COURT ON 04.05.2024 DELIVERED THE
FOLLOWING:
WP(C) No.16366/2024
-:2:-
"C.R."
JUDGMENT
A 16-year-old rape victim who does not want to give birth to
the child of a man who sexually assaulted her has approached
this court through her mother seeking permission for medical
termination of her pregnancy.
2. It is alleged that the victim while studying in the XI th
standard was sexually abused by her 19-year-old lover and
became pregnant. A crime was registered as Crime No.210/2024
of Edakkad Police Station, Kannur City based on the intimation
from the Doctor at Pariyaram Medical College under Section 376
IPC and Sections 4(1), 3(a), 3(b), 6(1), 5(j)(ii) of the POCSO Act,
2019 and Sections 3(1)(w)(i) and 3(2) (v) of the SC/ST(PoA) Act.
3. The victim is now in her 28th week of pregnancy.
Permission to terminate the pregnancy has been sought on the
ground that the continuation of the same would adversely affect
the mental and physical well-being of the victim as well as the
child.
4. I have heard Smt.Shameena Salahudeen, the learned
counsel for the petitioner, Sri.T.C.Krishna, the learned senior
panel counsel appearing for the 1st respondent and Smt.Deepa
Narayanan, the learned Senior Government Pleader appearing for
respondents 2 to 5.
5. Until 1960's, abortion was illegal in India. The Shantilal
Shah Committee was formed in the mid-1960s to examine the
need for regulations governing abortion. As a result, the Medical
Termination of Pregnancy Act, 1971 (for short, MTP Act) was
enacted legalising safe abortions and protecting women's health.
The law is an exception to the criminalisation of abortion under
the Indian Penal Code. MTP Act permits licenced medical
professionals to perform abortions in specific predetermined
situations as provided under the legislation - such as, when there
is danger to the life or risk to the physical or mental health of the
pregnant women, when pregnancy arises from sex crime or rape
or intercourse with lunatic women etc., and when there is
substantial risk that the child when born would suffer from
deformities and diseases. The MTP Act was amended in 2021 to
allow abortions up to 24 weeks of gestation, raising it from the
previous 20 weeks for "certain categories of women". These are
listed under Rule 3B of the MTP Rules notified under the MTP
Amendment Act and include survivors of rape, incest, minors,
women experiencing a change of marital status (widowhood or
divorce), women with disabilities, women with foetal anomaly and
those living in emergency, disaster or humanitarian crisis. The
Amendment Act allows termination of pregnancies beyond 24
weeks only in cases of foetal anomalies of the child. It sets up
State Level Medical Boards to decide if the pregnancy may be
terminated after 24 weeks in cases of substantial foetal
abnormalities. The MTP Act also provides for the protection of
women's privacy, confidentiality and dignity in accessing safe
abortion services.
6. The right of a woman or a girl to make autonomous
decisions about her own body and reproductive functions is at the
very core of her fundamental right to equality and privacy.
Reproductive rights include the right to choose whether and
when to have children, the right to choose the number of children
and the right to access to safe and legal abortions. The
constitutional right of women to make reproductive choices as a
part of personal liberty under Article 21 of the Constitution of
India was firmly recognized by the Supreme Court in the
landmark judgment in K.S.Puttaswamy v. Union of India [(2017)
10 SCC 1]. The Constitution Bench reiterated the position
adopted by the three-judge Bench in Suchita Srivastava v.
Chandigarh Administration [(2009) 9 SCC 1] which held that the
right of a woman to have freedom to reproductive choice is an
insegregable part of her personal liberty, as envisaged under
Article 21 of the Constitution and that she has sacrosanct right to
her bodily integrity. Following Puttaswamy (supra), the three-
judge Bench of the Supreme Court, recognizing the importance of
women's autonomy over her reproductive choices, in X v.
Principal Secretary, Health and Family Welfare Department,
Government of NCT of Delhi (AIR 2022 SC 4917) held that every
woman has an inherent right to secure safe and legal abortions
thereby ruling out any sort of discrimination based on marital
status. It was held that the rights of reproductive autonomy,
dignity and privacy under Article 21 give a woman, both married
and unmarried, the right to choose whether to bear a child or not.
It was observed that decisional autonomy is an integral part of
the right to privacy and the decision to carry the pregnancy to its
full term or terminate it is firmly rooted in the right to bodily
autonomy and decisional autonomy of the pregnant woman. This
ruling recognizes unwanted pregnancy as a life-altering
reproductive choice. More recently, a two-judge Bench of the
Apex Court in XYZ v. State of Gujarat & Others (2023 Livelaw SC
680) took the view that the woman alone has the right over her
body and is the ultimate decision maker on the question of
whether she wants to undergo an abortion.
7. Coming to the facts of the case, when the victim was
medically examined on 25/4/2024, by a medical board
constituted by the Government Medical College Hospital, Kannur
as per the direction of this Court, she was found to be carrying a
pregnancy of 27 weeks. It is relevant to note at this juncture that
as per Section 3 of the MTP Act, termination of pregnancy of a
woman where it exceeds 20 weeks but does not exceed 24 weeks
can only be allowed in special categories, and where the medical
practitioners are of the opinion that continuance of such
pregnancy would either involve a risk to the life of a woman or
cause grave injury to her physical or mental health. The
categories under which pregnancy can be terminated where
pregnancy is between 20 to 24 weeks, have been prescribed by
the MTP Rules, 2021. Clause (a) of the Rules relate to victims of
sexual assault, rape or incest and clause (b) relates to minors. In
this case, the victim falls under both, i.e., clauses (a) and (b) as
she is a minor aged 16 years who is alleged to have been raped.
Though the MTP Act does not provide for termination of
pregnancies over the gestational age of 24 weeks except in cases
of detection of substantial foetal abnormalities while exercising
power under Article 226, this Court has wider powers than what is
specified under Section 3(2) of the MTP Act. The extraordinary
powers of the constitutional courts in this regard have been
recognized by the Supreme Court and exercised several times by
the High Courts including this Court to allow termination of
pregnancies even in cases where pregnancy has exceeded the
limit of 24 weeks. In A. v. Union of India and Others [(2018) 14
SCC 75], the Supreme Court permitted termination in a case
where gestational age was 25-26 weeks. In Meera Santosh Pal v.
Union of India [(2017) 3 SCC 462], permission for medical
termination of pregnancy was granted when the pregnancy
crossed 24 weeks based on the medical reports pointing out the
risk involved in the continuation of pregnancy. In Sarmishtha
Chakrabortty v. Union of India [(2018) 13 SCC 339], termination
of pregnancy was permitted even when the gestational age was
26 weeks in view of the recommendations of the Medical Board.
In XYZ v. State of Gujarat (supra), the age of the foetus was
almost 27 weeks when the court examined the plea of
termination of pregnancy.
8. Pregnancy outside marriage, in most cases, is
injurious, particularly after sexual abuse and is a cause for
trauma affecting both physical and mental health of the pregnant
woman, the victim. Sexual assault or abuse of a woman is itself
distressing and the resultant pregnancy compounds the injury.
This is because such a pregnancy is not a voluntary or mindful
pregnancy. [see XYZ v. State of Gujarat (supra)]. Section 3(2) of
the MTP Act provides that if the continuance of the pregnancy
would cause grave injury to the physical or mental health of the
pregnant woman, the pregnancy can be terminated. Explanation
2 of section 3 (2) says that where the pregnancy was 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. Hence, a rape victim cannot be forced to give birth to a
child of a man who sexually assaulted her. Declining permission
to a rape victim to medically terminate her unwanted pregnancy
would amount to forcing her with the responsibility of
motherhood and denying her human right to live with dignity
which forms a significant part of the right of life guaranteed
under Article 21 of the Constitution.
9. In the report of the Medical Board, it was pointed out
that continuance of pregnancy may be detrimental to the
physical and mental health of the victim. The psychiatrist who
was part of the Medical Board opined that the continuation of the
pregnancy may result in severe psychological trauma to the
victim. The adverse impact of the continuance of the pregnancy
on the victim's mental health and the resultant trauma could very
well be inferred as she is a rape survivor. The family of the victim
girl belongs to a scheduled caste community. It is stated in the
writ petition that poor family members including the victim girl
are in a state of shock over the turns of events. The victim is now
housed at the Childcare Home and it is stated that she is not
mentally prepared to accept the state of affairs and deliver the
child. Moreover, the social isolation of a minor girl before the
SC/ST community who is subjected to sexual assault and giving
birth to a child at such a young age cannot be ruled out. For all
these reasons, I deem it appropriate to grant the relief sought
and permit the petitioner's minor daughter/victim to undergo
medical termination of pregnancy at the Pariyaram Medical
College, Pariyaram, Kannur District, in the following manner:-
(i) On production of this judgment, the 5th respondent shall
take immediate measures for constituting a medical team to
conduct the procedure and carry out the termination of
pregnancy of the victim.
(ii) The petitioner shall file an appropriate undertaking,
authorising to conduct the surgery at her risk.
(iii) After terminating the victim's pregnancy, the 5 th
respondent shall preserve the foetus for carrying out the medical
test for the purpose of criminal case pending against the accused
in Crime No.210/2024 of Edakkad Police Station,
(iv) If the foetus is found to be alive at birth, the hospital
shall give all necessary assistance including incubation either in
that hospital or any other hospital where incubation facility is
available in order to ensure that the foetus survives. Further, the
baby is to be offered the best medical treatment available so that
it develops into a healthy child.
(v) If the petitioner is not willing to assume the
responsibility of the baby, the State and its agencies shall
assume full responsibility and offer medical aid to the child, as
may be reasonably feasible, keeping in mind the best interest of
the child and the statutory provisions in the Juvenile Justice (Care
and Protection of Children) Act, 2015.
(vi) The Child Welfare Committee, Kannur District shall
render all possible assistance to the victim and the petitioner
during the period of their stay in the hospital.
The writ petition stands disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
APPENDIX OF WP(C) 16366/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE FIR IN CRIME
NO.0210/2024 OF EDAKKAD POLICE STATION
OF KANNUR CITY
Exhibit P2 TRUE COPY OF THE SCAN REPORT DATED
10.4.2024.
Exhibit P3 A TRUE COPY OF THE JUDGMENT IN W.P©
26546/2021 DATED 25.11.2021 OF THIS
HON'BLE COURT
