Kerala High Court
Xxxxxx vs Union Of India on 30 October, 2024
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
WP(C) NO. 37000 OF 2024
PETITIONER:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
K.J.GLADIS
V.C.RAJESH
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
4 THE SUPERINTENDENT
GOVERNMENT TALUK HEAD QUARTERS HOSPITAL,
KODUNGALLUR, THRISSUR, PIN - 680664
WP(C)NO.37000 OF 2024
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5 THE SUPERINTENDENT
GOVERNMENT MEDICAL COLLEGE HOSPITAL THRISSUR,
M.G. KAVU, MEDICAL COLLEGE P.O, THRISSUR, PIN -
683596
DSGI IN CHARGE ADV.T.C.KRISHNA
SR.G.P.SUNIL KUMAR KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.10.2024, THE COURT ON 30.10.2024 DELIVERED THE
FOLLOWING:
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V.G.ARUN, J
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W.P(C) No.37000 of 2024
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Dated this the 30th day of October, 2024
JUDGMENT
The petitioner's daughter, a 16 year old girl, is pregnant
by 26 weeks and 5 days. The pregnancy is alleged to be the
result of repeated instances of rape committed on the girl by
her lover. The victim and the petitioner were unaware about
the pregnancy till the girl was examined by a Gynaecologist.
By that time, the foetus had crossed the gestational age of 25
weeks and 6 days, thereby making it impossible to medically
terminate the pregnancy without an order in that regard
from the competent court. Hence, this writ petition.
2. When the writ petition came up for admission on
22.10.2024, the Superintendent of the Government Medical
College, Thrissur was directed to constitute a Medical Board
for examining the girl.
3. Heard, Adv.Gladis, learned Counsel for the petitioner,
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and Adv.Sunil Kumar Kuriakose, the learned Senior
Government Pleader.
4. Learned counsel for the petitioner submitted that a
crime has been registered against the perpetrator for various
offences under the Indian Penal Code and the Protection Of
Children from Sexual Offences (Amendment) Act, 2012 and
the girl is physically and mentally shattered. Though she has
been pleading to get the pregnancy terminated, in view of
the restriction contained in the Medical Termination of
Pregnancy Act, no hospital is prepared to conduct the
procedure without an order from this Court. It is contended
that a woman's right to make reproductive choice and the
liberty of the mother to terminate the pregnancy is a
dimension of her personal liberty, as held by the Apex Court
in Suchita Srivastava and another v. Chandigarh
Administration [(2009) 9 SCC 1].
5. Learned Government Pleader opposed the prayer,
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pointing out that the Medical Board's opinion is not
conclusive and the pregnancy should not be terminated at
this advanced stage.
6. The law on medical termination of pregnancy is
governed by the Medical Termination of Pregnancy Act,
1971. Section 3 being contextually relevant is extracted
hereunder;
"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
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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
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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;
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(c) a Radiologist or Sonologist; and
(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) In determining whether the continuance of
pregnancy would involve such risk of injury
to the health as is mentioned in sub-section
(2), account may be taken of the pregnant
woman's actual or reasonably foreseeable
environment.
(4) (a) No pregnancy of a woman, who has not
attained the age of eighteen years, or, who,
having attained the age of eighteen years, is
a mentally ill person, shall be terminated
except with the consent in writing of her
guardian.
(b) Save as otherwise provided in clause (a),
no pregnancy shall be terminated except with
the consent of the pregnant woman."
7. True, the Apex Court has declared a woman's right to
make reproductive choice to be a dimension of her personal
liberty in Suchita Srivastava (supra), but whether such liberty
can transgress the restrictions/prohibition under the Medical
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Termination of Pregnancy Act, is the question. To decide this
question, it is essential to carefully scrutinize the following
opinion of the medical Board;
" The board has decided that MTP is most suitable as per
section 3.2 of MTP act considering the fact that continuation of
pregnancy will significantly affect mental health of a 16 years old
rape victim, as conception follows rape.
Since the gestation has crossed 26 weeks and as per ultra
sound report reveals no anomalies, there is strong possibility of
foetus being viable following termination. Hence, the board
recommends considering use of antenatal steroids and magnesium
sulphate as it will affect the postnatal out come of the foetus. It is
advisable to continue gestation till 28 weeks at least for best
interest of foetus in this case, if possible. The custody of the baby
has to be discussed with medical board if termination planned."
8. The opinion of the Board that MTP is best suitable is on
the premise that, continuation of the pregnancy may
significantly affect the mental health of the 16 year old
survivor. The said observation of the Medical Board can only
be perceived as a general opinion, since the Medical Board did
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not have an expert in Psychology and mental health as its
Member. On the other hand, the Board has opined that the
foetus reveals no anomalies and there is strong possibility of
foetus being viable following termination. In this context, it is
essential to note that, as per sub-section (2) of Section 3 and
Explanation 1 thereunder, medical termination of pregnancy
can be permitted up to 24 weeks, if continuance of the
pregnancy involves risk to the life of the pregnant woman or
grave injury to her physical or mental health. Going by
Explanation 2 to Section 3(2), anguish caused by the pregnancy
shall be presumed to constitute a grave injury to the mental
health of the pregnant woman, if the pregnancy is alleged to
have been caused by rape. Pertinent to note that, as per
Section 3(2-B), the provisions of Section 3(2) relating to length
of pregnancy, would become inapplicable only if the termination
is necessitated by the diagnosis of any substantial foetal
anomaly by a Medical Board. Thus, medical termination of
pregnancy is made impermissible beyond 24 weeks, unless the
termination is necessitated by diagnosis of substantial foetal
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anomaly. The report of the Medical Board does not reveal
substantial anomaly to the foetus and the report also does not
reveal that the mental condition of the survivor is of such
nature that it constitutes grave injury to her mental health. In
such circumstances, the prayer for medical termination of
pregnancy can only be declined.
10. If the minor and her parents desire to give the child
in adoption after the delivery, the State Government shall take
necessary steps in accordance with the applicable provisions of
law for facilitating such exercise in accordance with law.
The writ petition is dismissed with the above observation.
Sd/-
V.G.ARUN, JUDGE
sj
