[Cites 9, Cited by 0]

Kerala High Court

Xxxxxx vs State Of Kerala on 15 December, 2025

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WP(C) No.46643/2025
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                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

               THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

      MONDAY, THE 15TH DAY OF DECEMBER 2025 / 24TH AGRAHAYANA, 1947

                             WP(C) NO. 46643 OF 2025


PETITIONER:

              XXXXXXXXXX
              XXXXXXXXXX

              BY ADVS.
              SMT.S.SUJINI
              SMT.POOJA VENKAT



RESPONDENTS:

     1        STATE OF KERALA
              REPRESENTED BY, PIN - 682031

     2        DIRECTOR OF MEDICAL EDUCATION
              DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O,
              MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKKUZHI,
              THIRUVANANTHAPURAM, PIN - 695011

     3        INSPECTOR OF POLICE, VALIYATHURA POLICE STATION,
              THIRUVANANTHAPURAM DISTRICT, PIN - 695007

     4        SAT HOSPITAL, REPRESENTED BY ITS SUPERINTENDENT GOVERNMENT
              MEDICAL COLLEGE, KUMARAPURAM P.O, THIRUVANANTHAPURAM
              DISTRICT., PIN - 695011

     5        CHILD WELFARE COMMITTEE
              THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRPERSON
              POOJAPPURA, THIRUVANANTHAPURAM, PIN - 695012

              BY SRI.SHEMEER P.M., GOVERNMENT PLEADER


      THIS    WRIT    PETITION   (CIVIL)      HAVING   COME   UP   FOR   ADMISSION   ON
15.12.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                              2025:KER:96530
WP(C) No.46643/2025
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                                 JUDGMENT

This writ petition is filed seeking for a direction for medical

termination of pregnancy of the petitioner's minor daughter aged 13

years. The minor daughter of the petitioner was sexually abused by their

neighbour, pursuant to which, she got impregnated. At the time of filing

the writ petition, the gestation period of pregnancy had crossed 26

weeks. The pregnancy was confirmed by Ext.P2 scanning report dated

02.12.2025. Since she was undergoing a severe and serious mental

trauma, the petitioner approached this Court seeking for a termination

of pregnancy.

2. On 12.12.2025, after hearing the learned counsel for

the petitioner and the learned Government Pleader, this Court referred

the minor girl to the Medical Board, SAT Hospital, Government Medical

College, Thiruvananthapuram. Today, when the case was taken up, The

learned Government Pleader handed over a report dated 15.12.2025 of

the Medical Board, comprising the Head of the Department of

Obstetrics and Gynaecology, senior faculty members from the

Department of Obstetrics and Gynaecology, and faculty from the

Departments of Neonatology and Psychiatry. The opinion and conclusion

of the Medical Board are as follows:

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"Opinion by Neonatologist:

At 27 weeks + 2 days the ultra sound shows good fetal weight and no congenital anomalies at present. There is a high risk of mortality (More than 60%), serious morbidities and neuro developmental abnormalities if baby survives the immediate new born period. At birth comfort care can be considered in NICU as parents of the girl are not willing for extensive resuscitation. This has to be documented from them before termination. If the baby survives the parents of the child will be fully responsible for the baby till the baby gets discharged and handed over to CWC.

Opinion of Psychiatry:

Continuing pregnancy is likely to cause mental trauma to the child and hence termination is suggested.

Conclusion:

The Medical Board convened in the presence of Professor & HOD, OBG, other faculties of depart of OBG, Faculty from Neonatology & Psychiatry it is opined that this patient Kum.Aliya A., 13 years & 11 month old, case of POCSO Primi, GA 27 wks+2days was considered for termination of pregnancy in view of her age and mental status of the child. The proceedings for MTP will be started as per the final Court Order."

3. The termination of pregnancy is governed by the

Medical Termination of Pregnancy Act, 1971 ('Act', in short) and the

rules framed thereunder. The Act is a progressive legislation that

regulates how pregnancies can be terminated.

4. Section 3 of the Act spells out the conditions to be

satisfied to terminate a pregnancy, which reads as follows:

"S.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.

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(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.

(2A) 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.

(2B) 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.

(2C) 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.

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(2D) The Medical Board shall consist of the following, namely: (a) a Gynaecologist; (b) a Paediatrician; ― (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 a 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."

5. Going by Explanation II, in a case in which pregnancy

is alleged 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. In this context, it may also be

appropriate to read Rule 3B of the Medical Termination of Pregnancy

Rules, 2003. Under Rule 3B, specific categories of women are to be

considered eligible for termination of pregnancy under Clause (b) of

sub-section (2) of Section 3 of the Act. This category of women includes

survivors of sexual assault or rape, or incest, as also minors. In the case

at hand, the victim is a rape survivor and a minor. Hence, taking a cue

from the above provisions, I lean in favour of the victim while being

conscious of the rights of the unborn baby. It is pertinent to note that a 2025:KER:96530

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woman's right to make reproductive choices is recognised as part of her

personal liberty under Article 21, subject of course to reasonable

restrictions. The Division Bench has considered these aspects in ABC v.

Union of India (2020 (4)) KLT 2791] while granting permission for

medical termination to a minor girl whose pregnancy had progressed to

a 24th week.

6. In Xxxx v. Union of India [2024 (7) KHC 367], this

Court held as follows:-

" ...........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 Bom. 677) and X v.

State of Maharashtra (WP ASDB - LD - VC - 109 of 2020 dated 3 July 2020 (2020 KHC 7071)).

7. In A (Mother of X) v. State of Maharashtra [2024

KHC OnLine 6258], the apex court held that the Medical Board and

High Court cannot refuse abortion merely on the ground that

gestational age of the pregnancy is above the statutory prescription. In

X v.Union of India and others [(2020) 19 SCC 806] wherein also, the

apex court permitted the termination of the pregnancy, considering that

the victim girl was aged only 13 years. The apex court considered the

trauma the girl had suffered because of the sexual abuse and the agony 2025:KER:96530

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she was going through and the Medical Board's report.

8. In the case on hand, as per the report of the Medical

Board, the gestational age of the foetus is 27 weeks and 2 days and

each day's delay will add to the victim's agony. After an elaborate

consideration of the facts, the materials on record and the well-settled

principles of law on the subject, especially considering the physical

difficulties, mental agony and recommendations of the Medical Board, I

am of the opinion that MTP can be done in accordance with the

provisions of the Act and Rules and as decided by the Medical Board.

However, when termination of pregnancy is done, since the tissue and

blood samples of the foetus is necessary for medical tests including

fingerprinting mapping, the hospital shall preserve the blood samples of

the foetus and tissues to carry out tests including DNA test as ordered.

In the aforementioned circumstances, the writ petition is

disposed of with the following directions:

a) The petitioner is permitted to undergo MTP as opined by the

Medical Board, in accordance with the Act and Rules.

b) The fourth respondent shall take immediate measures for

constituting a Medical Team to conduct the termination of the

victim girl's pregnancy, on production of a copy of this judgment.

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c) The Medical Team shall, in their discretion and best judgment,

adopt the best procedure recommended in the medical science to

terminate the pregnancy and save the life of the victim girl.

d) The petitioner shall file an undertaking authorising the fourth

respondent to terminate the pregnancy at her risk and costs.

e) Since an FIR has been filed, the tissues and blood samples of the

fetus must be preserved for necessary medical tests, including

DNA fingerprinting mapping. The hospital shall preserve the blood

samples of the foetus and tissues to carry out the necessary

medical tests, including DNA and other tests as ordered.