Kerala High Court
Najeena T.M vs State Of Kerala on 21 July, 2025
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WP(C) No.25824/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
WP(C) NO. 25824 OF 2025
PETITIONER:
NAJEENA T.M., AGED 29, W/O RAMEES V. K., VALIYAKATH NANNAT
(H), THRISSUR DISTRICT, PALUVAI, P.O. PALUVAI, PIN - 680522
BY ADVS. SHRI.REBIN VINCENT GRALAN
SHRI.DINESH G WARRIER
SRI.VIMAL VIJAY
SMT.LIZBA VINCENT GRALAN
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF
WOMEN & CHILD DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE DIRECTOR DEPARTMENT OF OBSTETRICS & GYNAECOLOGY
THRISSUR, GOVERNMENT MEDICAL COLLEGE, THRISSUR, PIN - 680005
3 THE CHAIRMAN MEDICAL BOARD, DISTRICT MEDICAL OFFICER, NEW
MEDICAL COLLEGE HOSPITAL, MULANKUNNATHUKAVU, THRISSUR, PIN -
680005
ADDL.R4 SUPERINTENDENT
GOVERNMENT MEDICAL COLLEGE, THRISSUR, P O MULAMKUNNATHUKAVU,
PIN 680 005
ADDL.R4 IS IMPLEADED AS PER ORDER DATED 21.07.2025 IN IA
NO.1/2025
SMT. K B SONY -GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON
21.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) No.25824/2025
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JUDGMENT
The petitioner has been seeking medical termination of 25 weeks'
old pregnancy as on 01.07.2025, after having found multiple anomalies
to the foetus, viz., severe cardiac anomaly of fetus - cc TGA physiology
with large and multiple VSD, Ebsteinoid malformation of tricuspid valve
and AV block. The petitioner is also a mother a 5-year-old girl child. As
per Ext.P5 medical report, the doctors opined to proceed with medical
termination of pregnancy after obtaining a court order. The petitioner,
therefore, seeks for a direction to permit her to undergo medical
termination of pregnancy.
2. Heard the learned counsel for the petitioner and the learned
Government Pleader.
3. When the writ petition came up for consideration on 17.07.2025,
this Court directed the additional fourth respondent to constitute a
Medical Board for the purpose of assessing the following:-
a) Whether continuance of the petitioner's pregnancy will involve risk
to her life or grave injury to her physical or mental health?
b) Whether there is a substantial risk that if the child is born, it will
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suffer from such physical or mental abnormalities as to be
seriously handicapped and if so, the nature of abnormalities; and,
c) Whether, having regard to the advanced stage of pregnancy, is
there any danger (other than usual danger which arises even in
spontaneous delivery at the end of full term) if the pregnant
mother is permitted to terminate her pregnancy?
4. On 21.07.2025, the learned Government Pleader made
available before this Court the report of the Medical Board, which reads
as follows:
"As per Judgment from Honorable High court of Kerala and
letter from Government Pleader, Office of the Advocate General, Kerala
Dated. 17.07.2025, Medical Board was conducted on 18.07.2025 at 11.30
am at Government Medical College Hospital, Thrissur.
The following members attended the Medical Board.
1. Dr. Priya V. - Associate Professor in OBG, HOD (I/C)
2. Dr. Krishna C. - Assistant Professor in Pediatrics
3. Dr. Mukundan C. - Associate Professor in Cardiology
4. Dr. John J. Nalappatt - Assistant Professor in Radiodiagnosis
Najeema, 28 year old mother with 2nd pregnancy and a
previous live child who is a known case of type 1 Diabetes mellitus on
Insulin (since 18 years) came with diagnosis of severe cardiac anomaly of
fetus- cc TGA physiology, with large and multiple VSD, Ebsteinoid
malformation of tricuspid valve and AV block.
In view of severe cardiac anomaly counseled the patient and
husband regarding the need for multiple cardiac surgeries and
pacemaker implantation in the postnatal period and the probability of
genetic anomaly, hence patients wants termination of pregnancy.
Since gestational age more than 27 weeks of gestation patient
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and standers were informed regarding the multiple methods of MTP
including surgery if not responding to medical management and
subsequent: plications while trying to terminate pregnancy.
Since the gestational age is more than 27 weeks, the baby may
be born alive and is likely to have multiple co morbidities due to
prematurity (intraventricular hemorrhage, respiratory distress syndrome
etc.) also in addition to cardiac problems. Hence baby may need
prolonged NICU stay and respiratory support which is also explained. Pre
pregnancy counseling was given regarding planning for next pregnancy."
5. The Medical Report reveals that the gestational age is more
than 27 weeks. Learned counsel for the petitioner submits that the
petitioner is prepared to proceed with the termination of pregnancy
even by 'C' section at the Mother Hospital, Olari, Thrissur, or at the
Government Medical College, Thrissur. The learned counsel for the
petitioner further submits that this Court, while referring the petitioner
for termination, may also leave her choice in respect of the hospital
either before the Medical College Hospital, Thrissur or before the Head
of Department of Gynaecology, the Mother Hospital, Olari, Thrissur. In
the writ petition also, the petitioner sought for a prayer to refer her to
undergo Medical Termination of Pregnancy at a Medical
Facility/Registered Medical Practitioner or her choice. The learned
counsel placed reliance on the Government of India guidelines that are
referred to by the Honourable Supreme Court in A (Mother of X) v. State
of Maharashtra [(2024) 6 SCC 327] to support his submission.
6. The termination of pregnancy is governed by the Medical
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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.
7. 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.
(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
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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.
(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."
8. It is also necessary to refer to the Medical Termination of
Pregnancy Rules, 2003, which reads as follows:
"3A. Powers and functions of Medical Board.--For the purposes of
section 3,-- (a) the powers of the Medical Board shall be the
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following, namely:- (i) to allow or deny termination of pregnancy
beyond twenty-four weeks of gestation period under sub-section
(2B) of the said section only after due consideration and ensuring
that the procedure would be safe for the woman at that gestation
age and whether the foetal malformation has substantial risk of it
being incompatible with life or if the child is born it may suffer from
such physical or mental abnormalities to be seriously handicapped";
The position of law can, therefore, be summarised thus:
9. Besides the above statutory safeguards, the Ministry of Health
and Family Welfare, Government of India, has issued a comprehensive
'Guidance Note for Medical Boards for Termination of Pregnancy
beyond 20 weeks of Gestation', dated 14th August 2017. The Note
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stipulates that it is the responsibility of the Medical Board to ascertain
whether the foetal abnormality is substantial enough to qualify as either
incompatible with life or associated with significant morbidity or
mortality of the child if born. Determining substantial foetal
abnormalities should be based on a thorough review of the patient's
medical records. The Medical Board should conduct additional
investigations as may be necessary. It should base its decision on
concrete medical evidence and expert evaluations, including reviewing
the available documents and performing additional diagnostic tests to
confirm the presence and extent of congenital abnormalities. The
objective of the Note is to ensure that the decision to terminate the
pregnancy is made with the utmost care and consideration of the
potential outcomes and quality of life of the child.
10. A three-judge Bench of the Hon'ble Supreme Court, in Suchita
Srivastava v. Chandigarh Admn. [(2009) 9 SCC 1], has held that the right
to make reproductive choices is a facet of Article 21 of the Constitution
and that the consent of the pregnant person in matters of reproductive
choices and abortion is paramount.
11. In XYZ v. State of Gujarat (2023 SCC Online SC 1573), the
Hon'ble Supreme Court held that the Medical Board or the High Court
cannot refuse termination of pregnancy merely on the ground that the
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gestational age is above the statutory prescription. It is held as follows:
"19. The whole object of preferring a Writ Petition under Article
226 of the Constitution of India is to engage with the
extraordinary discretionary jurisdiction of the High Court in
exercise of its constitutional power. Such a power is vested with
the constitutional courts and discretion has to be exercised
judiciously and having regard to the facts of the case and by
taking into consideration the relevant facts while leaving out
irrelevant considerations and not vice versa."
12. The Hon'ble Supreme Court in A.V. State of Maharashtra
[(2024) 6 SCC 327] has held as under:
"28. The powers vested under the Constitution in the High Court and
this Court allow them to enforce fundamental rights guaranteed under
Part III of the Constitution. When a person approaches the court for
permission to terminate a pregnancy, the courts apply their mind to
the case and make a decision to protect the physical and mental
health of the pregnant person. In doing so the court relies on the
opinion of the Medical Board constituted under the MTP Act for their
medical expertise. The court would thereafter apply their judicial
mind to the opinion of the Medical Board. Therefore, the Medical
Board cannot merely state that the grounds under Section 3(2-B) of
the MTP Act are not met. The exercise of the jurisdiction of the courts
would be affected if they did not have the advantage of the medical
opinion of the board as to the risk involved to the physical and mental
health of the pregnant person. Therefore, a Medical Board must
examine the pregnant person and opine on the aspect of the risk to
their physical and mental health.
29. The MTP Act has removed the restriction on the length of the
pregnancy for termination in only two instances. Section 5 of the MTP
Act prescribes that a pregnancy may be terminated, regardless of the
gestational age, if the medical practitioner is of the opinion formed in
good faith that the termination is immediately necessary to save the
life of the pregnant person. Section 3(2-B) of the Act stipulates that no
limit shall apply on the length of the pregnancy for terminating a
foetus with substantial abnormalities. The legislation has made a
value judgment in Section 3(2-B) of the Act, that a substantially
abnormal foetus would be more injurious to the mental and physical
health of a woman than any other circumstance. In this case, the
circumstance against which the provision is comparable is rape of a
minor. To deny the same enabling provision of the law would appear
prima facie unreasonable and arbitrary. The value judgment of the
legislation does not appear to be based on scientific parameters but
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rather on a notion that a substantially abnormal foetus will inflict the
most aggravated form of injury to the pregnant person........
xxxxxxxxx xxxxxxxxx xxxxxxxxx
32. This highlights the need for giving primacy to the fundamental
rights to reproductive autonomy, dignity and privacy of the pregnant
person by the Medical Board and the courts. The delays caused by a
change in the opinion of the Medical Board or the procedures of the
court must not frustrate the fundamental rights of pregnant people.
We therefore hold that the Medical Board evaluating a pregnant
person with a gestational age above twenty-four weeks must opine on
the physical and mental health of the person by furnishing full details
to the court".
13. As far as the present case is concerned, from Ext.P5 together
with Medical Board report, it is clear that there is severe cardiac
anomaly of foetus and there exists considerable reason that the baby
will be born with multiple anomalies if born alive. The learned counsel
for the petitioner submits that the petitioner/mother is a known case of
Type I Diabetes Mellitus on Insulin and hence, she is under depression
and trauma due to anomaly of the foetus. The Medical Board report also
reveals that counselling was given to the petitioner and her husband
regarding the need for multiple cardiac surgeries and pacemaker
implantation in the postnatal period and the probability of genetic
anomaly.
14. Consequently, there is a decisive basis to hold that the
petitioner is eligible to get her pregnancy terminated, irrespective of
the gestation age, in view of Section 3 (2-B) of the Act, as the foetus
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presents with substantial abnormalities that the Medical Board has
confirmed.
15. Learned counsel for the petitioner submits that if the baby is
born alive, the parents are ready and willing to bear the risk of taking
care of the baby and also ready to meet all the expenses.
16. After an elaborate consideration of the facts, the materials on
record and the well-settled principles of law on the subject, especially
considering the recommendations of the Medical Board, I am of the
view that denying termination may only delay the inevitable and extend
the suffering of the family. The writ petition is to be disposed of by
directing the additional fourth respondent to terminate the petitioner's
pregnancy.
In the aforementioned circumstances, I dispose of the writ petition
with the following directions:
a) The petitioner shall appear before the additional fourth respondent
or before the Head of Department of Gynaecology, the Mother
Hospital, Olari, Thrissur, of her choice, on 22.07.2025.
b) The additional fourth respondent or the Head of Department of
Gynaecology, the Mother Hospital, Olari, Thrissur, shall take
immediate measures for constituting a Medical Team to conduct
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the termination of the petitioner's pregnancy, on production of a
certified copy of this judgment.
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 petitioner.
d) The petitioner shall file an undertaking authorising the additional
fourth respondent or the Head of Department of Gynaecology, the
Mother Hospital, Olari, Thrissur, to terminate the pregnancy at
their risk and costs.
e) Before conducting the termination of pregnancy, the Medical Team
shall obtain a final scanning report, confirming the deformities of
the foetus.
f) If the foetus is born alive, the hospital shall render all the
necessary assistance, including incubation and treatment at any
super-speciality, to ensure that the foetus survives. The baby shall
be offered the best medical treatment, and the petitioner shall take
full responsibility and bear the expenses for the baby.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
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APPENDIX OF WP(C) 25824/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE AADHAR CARD OF THE
PETITIONER BEARING AADHAAR NO. 6260 9472 1721
ISSUED BY UNIQUE IDENTIFICATION AUTHORITY OF
INDIA DT.19.01.2013
Exhibit P2 A TRUE COPY OF THE PELVIC ULTRASONOGRAPHY
(TAS & TVS) OF THE PETITIONER CONDUCTED FROM
AMALA INSTITUTE OF MEDICAL SCIENCE, THRISSUR
DT. 24.02.2025
Exhibit P3 A TRUE COPY OF THE COLOR DOPPLER FETAL
ECHOCARDIOGRAPHIC SCAN OF THE PETITIONER FROM
AMALA INSTITUTE OF MEDICAL SCIENCE, THRISSUR
DT. 27.06.2025
Exhibit P4 A TRUE COPY OF THE MEDICAL REPORT OF THE
PETITIONER FROM AMRUTHA INSTITUTE OF MEDICAL
SCIENCE AND RESEARCH CENTRE,KOCHI DT.
01.07.2025
Exhibit P5 A TRUE COPY OF THE MEDICAL REPORT CUM OP
REGISTRATION CARD IN OBSTETRICS AND
GYNECOLOGY AT GOVERNMENT MEDICAL COLLEGE
HOSPITAL, THRISSUR DT. 08.07.2025
Exhibit P6 A TRUE COPY OF THE JUDGEMENT IN WP (C ) 20872
OF 20222 PRONOUNCED BY THIS HON'BLE HIGH
COURT OF KERALA DT 01.07.2025
