Kerala High Court
Jamshiya Ajmal vs State Of Kerala on 11 March, 2026
2026:KER:21691
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 11TH DAY OF MARCH 2026 / 20TH PHALGUNA,
1947
WP(C) NO. 8816 OF 2026
PETITIONER:
JAMSHIYA AJMAL
AGED 34 YEARS
D/O KUNJUMOIDEEN ,THARAYIL HOUSE, PANAMBAD
MALAPPURAM, PIN - 679584
BY ADVS.
SHRI.NIDHIN RAJ VETTIKKADAN
SMT.ANJALA NAZRIN SUBAIR
SHRI.ANJO FRANCIS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
WOMENAND CHILD DEVELOPMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 682031
2 THE SECRETARY
DEPARTMENT O FHEALTH , SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 DIRECTOR OF MEDICAL EDUCATION
MEDICAL COLLEGE P.O, MEDICAL COLLEGE,KUMARAPURAM
ROAD, CHALAKKUZHI,THIRUVANANTHAPURAM, PIN -
695011
4 THE SUPERINTENDENT
MEDICAL COLLEGE HOSPITAL, TRISSUR, PIN - 686008
2026:KER:21691
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WP(C) NO. 8816 OF 2026
BY ADV GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.03.2026, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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WP(C) NO. 8816 OF 2026
JUDGMENT
The petitioner is seeking medical termination of her 29 weeks old pregnancy, after having found that the foetus is having aneuploidy involving specific markers of Chromosome 21, indicative of a serious chromosomal abnormality. On 21.01.2026, a detailed anomaly scan was done at CIMAR, Hospital, Edappal confirmed the above findings. The petitioner's amniotic fluid was collected on 18.02.2026 and after perusing the report the doctor informed that the petitioner has chromosomal abnormality involving Chromosome
21. According to the petitioner, on 26.02.2026, she approached the Government Medical College, Thrissur seeking a second medical opinion and the doctor informed that the foetus is likely to be affected with Down Syndrome (Trisomy 21). Thereafter, on 04.03.2026, the petitioner consulted Aster Medicity Hospital, with all relevant medical records for a further expert opinion. The specialist doctors therein after perusing the reports including the chromosomal analysis, 2026:KER:21691 4 WP(C) NO. 8816 OF 2026 advised that the detected chromosomal abnormality is irreversible and not amenable to any curative treatment. The petitioner, therefore, seek for a direction to the 4th respondent to permit the petitioner 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 05.03.2026, this Court directed the fourth respondent to constitute a Medical Board for the purpose of assessing the following:-
(i) whether continuance of the petitioner's pregnancy would involve risk to her life or grave injury to her physical or mental health,
(ii) whether there is a substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped and if so, the nature of abnormalities and 2026:KER:21691 5 WP(C) NO. 8816 OF 2026
(iii) whether, having regard to the advanced stage of pregnancy, there is 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. Today, i.e., on 11.03.2026, the learned Government Pleader made available to this Court the report of the Medical Board dated 07.03.2026, comprising the Associate Professor in OBG department, Assistant professor in Paediatrics and Assistant Professor in Radiodiagnosis of the Government Medical College Hospital, Thrissur. The conclusion and final opinion of the Medical Board are as follows:-
Conclusion:
Smt. Jamshiya Ajmal, 33 Years old, G5 P2 L2 A2 Previous two cesarean sections with Last Menstrual Period on 12.08.2025, and expected date of confirement on 19/05/2026 Gestational Age of 29 weeks 4 days as of today. Trisomy 21 was detected by QF-PCR test of amniotic fluid at 27 weeks 1 day which is not a confirmatory test (Confirmatory test is Karyotyping). Trisomy 21 (Down's Syndrome) is an irreversible 2026:KER:21691 6 WP(C) NO. 8816 OF 2026 chromosomal anomaly with varying severity. The child may have varying irreversible intellectual disability and other comorbidities.
However, considering the fact that gestation has reached 29 weeks 5 days and the baby being viable, the chance of baby being born alive is very high if MTP is done at this gestational age. The baby is likely to have possible complications of prematurity such as Respiratory distress syndrome, Intraventricular hemorrhage, sepsis, necrotizing enterocolitis, retinopathy of prematurity etc. Hence if at all medical termination of pregnancy is to be considered, all neonatal complications have to be kept in mind. and consider giving ante natal corticosteroids for lung maturity and Magnesium sulphate for neuroprotection prior to delivery.
At the same time, continuation of this pregnancy can pose a grave risk of profound mental trauma to the pregnant mother especially in the context of previous two abortions and a previous baby affected by Crouzon syndrome. As this patient has a history of previous two cesarean sections there is higher risk of adhesions and chance of bladder and bowel injury and increase risk of haemorrhage during the procedure. There is chance of scar rupture during pregnancy or during labour as patient is having increased amniotic fluid also.
Considering the above facts pregnancy may be terminated for maternal sake keeping in mind the increased risk of prematurity and other Neonatal complications.
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5. 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.
6. 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― 2026:KER:21691 8 WP(C) NO. 8816 OF 2026
(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.
(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, 2026:KER:21691 9 WP(C) NO. 8816 OF 2026 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."
7. It is also necessary to refer Section 3-A (a) (i) of 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 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 2026:KER:21691 10 WP(C) NO. 8816 OF 2026 if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped";
8. 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 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 2026:KER:21691 11 WP(C) NO. 8816 OF 2026 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.
9. In Suchita Srivastava v. Chandigarh Admn. [(2009) 9 SCC 1], the Hon'ble Supreme Court 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.
10. 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 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 2026:KER:21691 12 WP(C) NO. 8816 OF 2026 the relevant facts while leaving out irrelevant considerations and not vice versa."
11. 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 2026:KER:21691 13 WP(C) NO. 8816 OF 2026 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 rather on a notion that a substantially abnormal foetus will inflict the most aggravated form of injury to the pregnant person........
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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".
12. As far as the present case is concerned, from Exts.P3 and P4 and the Medical Board report, it is clear that there exists sufficient reason to hold that the baby may have 2026:KER:21691 14 WP(C) NO. 8816 OF 2026 varying irreversible intellectual disability and other comorbidities if born alive. This pregnancy can pose a grave risk of profound mental trauma to the pregnant mother especially in the context of previous two abortions and a previous baby affected by Crouzon syndrome. There may be high risk of adhesions and chance of bladder and bowel injury and increase risk of haemorrhage. This can adversely affect her future pregnancies too.
13. 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 presents with substantial abnormalities that the Medical Board has confirmed.
14. Exts.P3 and P4 coupled with the medical board report produced, this Court is of the view that there is considerable force in the case advanced by the petitioner that chromosomal abnormality detected in the foetus is incurable and it result in life long disability if the child is born alive.
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15. Accordingly, this Court is of the opinion that this petition filed by the petitioner to permit her to undergo medical termination of her pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 has to be allowed in the interest of justice.
In the aforementioned circumstances, this writ petition is disposed of as follows:-
1. The fourth respondent shall take immediate measures for constituting a Medical Team to conduct the termination of the petitioner's pregnancy, on production of a copy of this 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 petitioner.
3. The petitioner shall file an undertaking authorising the fourth respondent to terminate the pregnancy at her risk and costs.
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4. 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.
5. The party shall appear before the Superintendent of Medical College Hospital, Thrissur on 13.03.2026.
Sd/-
M.B.SNEHALATHA, JUDGE STB 2026:KER:21691 17 WP(C) NO. 8816 OF 2026 APPENDIX OF WP(C) NO. 8816 OF 2026 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE DNA TEST REPORT OF THE PETITIONER'S MINOR SON, MOHAMMED FAZIL AJMAL, DATED 02.03.2020, ISSUED BY MEDGENOME LABS Exhibit P2 A TRUE COPY OF THE ANTENATAL ULTRA SOUND SCANNING REPORT OF THE PETITIONER DATED14.11.2025 ISSUED BY SHANTHI NURSING HOME Exhibit P3 A TRUE COPY OF THE 2ND/3RD TRIMESTER SCAN REPORT OF THE PETITIONER FROM CIMAR ,THEWOMENS HOSPITAL DATED 04.02.2026 Exhibit P4 A TRUE COPY OF THE ANEUXPRESS (QF-PCR) REPORT OF THE PETITIONER DATED 22.02.2026 ISSUED BY STRAND PRECISION MEDICINE SOLUTIONS