Kerala High Court

Yyy vs Union Of India on 8 July, 2025

                                                     2025:KER:50066
WPC 24912 OF 2025

                                      :-1-:
              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
         THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
                       TH
        TUESDAY, THE 8 DAY OF JULY 2025 / 17TH ASHADHA, 1947
                         WP(C) NO. 24912 OF 2025

PETITIONER/S:

            YYY
            YYYYYYY YYYYYYY YYYYYYYYY YYYYYY


            BY ADV SMT.M.KABANI DINESH

RESPONDENT/S:

    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 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       SAT HOSPITAL
            REPRESENTED BY ITS SUPERINTENDENT GOVERNMENT
            MEDICAL COLLEGE, THIRUVANANTHAPURAM-, PIN - 695011


OTHER PRESENT:

            SMT. SONY K B -GP

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                             2025:KER:50066
WPC 24912 OF 2025

                                      :-2-:


                                JUDGMENT

The petitioner - a hapless grandmother of a victim minor

girl, whose biological parents have left the company of the child

years ago and who had been subjected to penetrated sexual

abuse, by her close relative, has approached this Court through

High Court Legal Services Committee. The writ petition is filed

seeking termination of the pregnancy of the minor grand

daughter, who is in her 27 weeks and 5 days of pregnancy as on

28.06.2025 as per the confidential medico legal record of the

fifth respondent hospital. The victim minor girl was subjected to

rape by the accused and an FIR has been registered on the basis

of the complaint preferred by her as per Ext.P2.

2. Heard the learned counsel for the petitioner, the learned

DSGI and the learned Government Pleader.

3. When the writ petition came up for consideration on 7th

July,2025, this Court directed respondents 2 to 4 to constitute

a Medical Board to examine the victim and file a report before

this Court. Today the learned Government Pleader made

available this Court the report of the Medical Board dated

07.07.2025 comprising the Doctors of Neonatology, Psychiatry 2025:KER:50066 WPC 24912 OF 2025

:-3-:

and Gynaecology Department. The conclusion and final opinion

of the Medical Board are as follows:-

"Neonatology Opinion

13 yr old 9 months POCSO case USS on 30.06.2025- 27 wks +5days estimated fetal weight of 1.084 Kg. At present 28 wks +5days gestation if terminated now there is a 60-70% chance of survival, the baby will need prolonged NICU stay multiple morbidities and risk of neuro developmental disability. As a period of viability is reached and there is more than 60% chance of new born baby surviving we are ethically and medico legally bound to give NICU care for the baby. This has been communicated to the family. The family is bound to take responsibility of the baby during NICU stay awaiting court decision.

Psychiatry Opinion

The child has developed symptoms of acute stress disorder on the knowledge that she is pregnant for which she was given psychiatric treatment.

Continuing pregnancy is detrimental to her mental health.

Gynaecology Opinion

Medical Board conducted on 07.07.2025 regarding 13 yrs & 9 month old patient primi gravid IP No. 18908/01 Unit admitted on 30.06.2025, brought by CPO Archa at gestational age of 27 wks +5days. Ultra sound scan done on 30.06.2025 which showed a single live intra uterine gestation of gestational age of 27 wks +5days and estimated fetal weight of 1.084Kg. Proceedings under taken through CPO CWC regarding issuing Court decision. Medical Board conducted on 07.07.2025 opined as the gestational age is 28 wks+5days and is terminated now there is a 60-70% chance of survival of the baby. Pending court order for further proceedings.

Conclusion

Hence the Board has decided the termination of pregnancy may be considered based on the court decision."

4. The termination of pregnancy is governed by the Medical 2025:KER:50066 WPC 24912 OF 2025

:-4-:

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.

5. 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 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 2025:KER:50066 WPC 24912 OF 2025

:-5-:

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."

6. 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 2025:KER:50066 WPC 24912 OF 2025

:-6-:

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 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.

7. 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)).

8. In A (Mother of X) v. State of Maharashtra (2024 KHC

OnLine 6258, the Hon'ble Supreme Court held that the medical board

and High Court cannot refuse abortion merely on the ground that 2025:KER:50066 WPC 24912 OF 2025

:-7-:

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 she was going through and the medical

board's report.

9. As per the medical board report, the gestational age of the

foetus is 28 weeks and 5 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 inclined to

allow the prayer for medical termination of pregnancy.

In the aforementioned circumstances, I dispose of the writ

petition by passing the following directions:

1. 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 2025:KER:50066 WPC 24912 OF 2025

:-8-:

judgment.

2. 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.

3. The petitioner shall file an undertaking authorising the

fourth respondent to terminate the pregnancy at her risk

and costs.

4. Since the 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.

5. In case after the procedure, the baby is born alive, the

hospital shall render all the necessary assistance,

including incubation and treatment, to ensure that the

foetus survives. The baby shall be offered the best medical

treatment, and if the grandparent/s are not willing to take

responsibility of the baby, the government or its agencies 2025:KER:50066 WPC 24912 OF 2025

:-9-: