Kerala High Court
Xxxxxx vs Union Of India on 8 November, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WA NO. 1786 OF 2024
[AGAINST THE JUDGMENT DATED 30-10-2024 IN WP(C) NO.37000 OF
2024 OF HIGH COURT OF KERALA]
APPELLANT/PETITIONER:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS. SRI. MITHUN PAVANAN,
SRI. MOHAMED AMJAD K.M.,
SRI. MERIN THOMAS.
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY SECRETARY,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT,
SASTHRI BHAVAN, NEW DELHI, PIN - 110001.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY,
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
3 DIRECTOR OF MEDICAL EDUCATION,
MEDICAL COLLEGE P.O., KUMARAPURAM ROAD,
CHALAKKUZHI, THIRUVANANTHAPURAM, PIN-695011.
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4 THE SUPERINTENDENT,
GOVERNMENT TALUK HEAD QUARTERS HOSPITAL,
KODUNGALLUR, THRISSUR, PIN-680664.
5 THE SUPERINTENDENT,
GOVERNMENT MEDICAL COLLEGE HOSPITAL THRISSUR,
M.G. KAVU, MEDICAL COLLEGE P.O,
THRISSUR, PIN-683596.
BY SRI.K.P.HARISH SENIOR GOVERNMENT PLEADER
BY ADV. SRI.ANISH JAIN, CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Nitin Jamdar, C. J.
This appeal under Section 5 of the Kerala High Court Act, 1958 is
filed by the Original Petitioner, challenging the judgment and order
issued by the learned Single Judge in W.P.(C) No. 37000 of 2024, dated
30 October 2024. By the impugned judgment, the learned Single Judge
rejected the Petitioner's request, the mother of the minor survivor girl, to
medically terminate her pregnancy.
2. The petitioner is the mother of a 16-year-old school-going girl. She
has been subjected to repeated sexual assault. A crime has been registered
at the police station under Sections 354, 354A(2), 354B, 376, 376(2)
(n), 376(3), and 506 of the Indian Penal Code, 1860, as well as Sections
4(1), (2) read with Sections 3(a), 6 read with 5(j)(ii), (1), 8 read with 7,
and 12 read with 11(iv) of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act). Neither the minor nor her mother
was aware of the pregnancy until a Gynaecologist confirmed it. By that
time, the foetus had reached a gestational age of 25 weeks and 6 days,
and it was not possible to medically terminate the pregnancy without
intervention of the Court.
3. The Petitioner stated that the minor is currently in her 26 th week of
pregnancy. Continuing the pregnancy will cause severe psychological
trauma, and the minor's family is in a state of shock. Furthermore, the
minor is not mentally prepared to accept and deliver the child. In these
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circumstances, the Petitioner approached the learned Single Judge by
filing a writ petition for a direction to form a Medical Board under
Section 3(2)(c) of the Medical Termination of Pregnancy Act, 1971
(MTP Act of 1971). The Petitioner requests that the Board shall provide
an opinion and subsequently declare her entitled to the necessary follow-
up actions for medical termination of her daughter's pregnancy.
4. By an order dated 22 October 2024, the learned Single Judge
directed the Superintendent of the Government Medical College,
Thrissur to form a Medical Board to examine the minor. The Medical
Board submitted a report stating that although the gestation period had
surpassed 26 weeks and the ultrasound scan showed no anomalies,
medical termination of pregnancy was most appropriate, as continuing
the pregnancy would severely impact the mental health of the 16-year-
old victim of rape, as conception occurred due to this crime. The learned
Single Judge rejected the opinion of Medical Board regarding mental
health on the ground that the Board lacked a Psychologist among its
members. The learned Single Judge then relied on the fact that the
foetus showed no anomalies and refused to order medical termination of
the pregnancy. It was noted that if the minor and her parents wished to
put the child for adoption, the State should take the necessary steps.
Being aggrieved, the Petitioner has filed this appeal.
5. We have heard Mr. Mithun Pavanan, learned counsel for the
Appellant and Mr. K.P. Harish, learned Senior Government Pleader.
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6. Section 3(2) of the MTP Act, 1971 reads thus:
"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 purpose 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
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pregnancy may be presumed to constitute a grave
injury to the mental health of the pregnant woman.
Explanation 2. - For the purpose 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.
(2-A) The norms for the registered medical
practitioner whose opinion is required for termination
of pregnancy at different gestational age shall be such
as may be prescribed by rules made under this Act.
(2-B) The provisions of sub-section (2) relating to the
length of the pregnancy shall not apply to the
termination of pregnancy by the medical practitioner
where such termination is necessitated by the
diagnosis of any of the substantial foetal abnormalities
diagnosed by a Medical Board.
(2-C) Every State Government or Union territory, as
the case may be, shall, by notification in the Official
Gazette, constitute a Board to be called a Medical
Board for the purposes of this Act to exercise such
powers and functions as may be prescribed by rules
made under this Act.
(2-D) The Medical Board shall consist of the
following, namely ;-
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
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(d) such other number of members as may be
notified in the Official Gazette by the State
Government or Union Territory, as the case may be.]
(3) xxxxxxxxxxxx"
7. Reading this provision, in the case of a minor, who is a victim of
rape, the mental trauma suffered by her cannot be an irrelevant
consideration also in view of the decision of the Hon'ble Supreme Court
in the case of XYZ v. State of Gujarat (2023 KHC 7282), A (Mother of
X) v. State of Maharashtra (AIR 2024 SC 2499), and the decision of the
Bombay High Court in the case of X v. State of Maharashtra (2020 SCC
Online Bombay 677) and X v. State of Maharashtra [WP ASDB-LD-
VC-109 of 2020 dated 3 July 2020]. That being the position when the
Medical Board had already opined that the minor would suffer mental
trauma, if the learned Single Judge was of the view that the opinion of
the Medical Board could not be considered due to the absence of a
Psychiatrist on the panel, a direction could have been issued for an
examination by a Psychiatrist. Unfortunately, no such direction was
issued.
8. Therefore, when the appeal came up yesterday (7 November
2024), we requested the Superintendent of Government Medical
College, Thrissur, to provide a suitable Psychiatrist to examine the minor
and submit a report regarding her mental health in relation to the
distress caused by the pregnancy. The Professor from the Department of
Psychology at Government Medical College, Thrissur, has examined the
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minor and concluded that she is experiencing an adjustment disorder
with a depressive reaction. It is stated that she does not have the mental
capacity to continue with the pregnancy and that doing so would be
detrimental to her mental health.
9. The Medical Board's report submitted to the learned Single Judge
has already established the mental trauma the minor is experiencing.
Considering all circumstances, including the provisions of Section 3 of
the MTP Act, 1971, the statutory presumption regarding the mental
trauma of a minor rape victim, the Psychiatrist's report, and the wishes of
both the Petitioner and the minor, we are of the opinion that the request
for medical termination of pregnancy should be granted
10. Accordingly, the Petitioner is permitted to go ahead with the
medical termination of the pregnancy of her minor daughter as per the
opinion of the Medical Board and that of the Psychiatrist.
11. The Petitioner states the Petitioner will present the minor today
before the Superintendent, Government Medical College, Thrissur, for
admission for the requisite procedure.
12. The Government Medical College Hospital shall carry out the
procedure required for the termination of pregnancy of the minor. Since
the FIR has been filed, the tissues and blood samples of the foetus must
be preserved for necessary medical tests, including DNA fingerprinting
mapping. The Hospital shall preserve the blood samples of the foetus
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and tissues to carry out the necessary medical tests, including DNA and
other tests as ordered.
13. The Investigating Agency shall also ensure that the samples are
forwarded to the Forensic Science Laboratory for preservation for the
trial.
14. In case after the procedure, the child born is alive, the Medical
Practitioner carrying out the procedure shall ensure that necessary
facilities are provided to such child to save the life. If the child is born
alive and the minor or parents are not willing to take responsibility of the
child, then the State and its agency will have to assume full responsibility
of the child.
15. The Appeal is accordingly disposed of in the above terms.
Sd/-
NITIN JAMDAR,
CHIEF JUSTICE
Sd/-
S. MANU,
JUDGE
krj
//TRUE COPY//
P.A. TO C.J.
