Kerala High Court
Xxxxxx vs State Of Kerala on 29 May, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:37604
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947
WP(C) NO. 18249 OF 2025
CRIME NO.263/2025 OF MALAYALAPUZHA POLICE STATION, PATHANAMTHITTA
PETITIONER:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV SMT.RESMI NANDANAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 STATION HOUSE OFFICER / INSPECTOR OF POLICE
MALAYALAPUZHA POLICE STATION,
PATHANAMTHITTA, PIN - 689645
3 DIRECTOR
DEPARTMENT OF GYNAECOLOGY,
ACADEMY OF MEDICAL SCIENCES,
GANDHI NAGAR, KOTTAYAM, PIN - 686008
4 SUPERINTENDENT
GOVERNMENT MEDICAL COLLEGE HOSPITAL,
GANDHI NAGAR, KOTTAYAM, PIN - 686008
5 DISTRICT CHILD WELFARE COMMITTEE,
KOTTAYAM GOVERNMENT CHILDREN'S HOME KVM BUILDINGS,
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ANNANKUNNU ROAD, KOTTAYAM, REPRESENTED BY ITS
CHAIRPERSON, PIN - 686001
BY
M.U VIJAYALEKSHMI
SRI. RAJEEV JYOTHISH GEORGE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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N. NAGARESH, J.
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W.P.(C) No.18429 of 2025
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Dated this the 29th day of May, 2025
JUDGMENT
~~~~~~~~~ Mother of a minor victim involved in an offence under Sections 332(b) and 64(1) of the Bharatiya Nyaya Sanhita and Sections 5i, 5j(ii) and 6 of the Protection of Children from Sexual Offences Act, 2012 is seeking to permit her unfortunate minor daughter to undergo Medical Termination of Pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 and to issue consequential directions to respondents 3 and 4 to conduct such termination procedure, in accordance with law forthwith.
2. The accused in FIR No.263/2025 of Malayalappuzha Police Station of Pathanamthitta District 2025:KER:37604 W.P.(C) No.18429/2025 :4: made acquaintance with the victim aged 17 years through Instagram and Whatsapp, took photographs with her and under threat and coercion, subjected the minor victim to sexual intercourse during August to October, 2024 and the victim was impregnated. The petitioner contends that the minor victim is carrying for 26 weeks and 5 days and that the continuation of pregnancy is critical to the health and against the interest of the minor girl.
3. The petitioner states that the whole family members including the victim girl is in a state of shock over the turn of events. The victim is not mentally prepared to accept the state of affairs and deliver the child. The social isolation of a minor girl, who is subjected to brutal sexual assault, giving birth to a child is unimaginable to the victim and the family.
4. Heard.
5. The District Child Welfare Protection Officer has provided a report which goes to show that the victim's 2025:KER:37604 W.P.(C) No.18429/2025 :5: father passed away due to cancer. The family is residing in a house constructed and donated to them by the Church authorities. The petitioner-mother is doing coolie work. She has two younger daughters other than the victim. The victim is ITI student and younger ones have completed Plus One studies.
6. The pregnancy was not initially detected, though the victim was taken to the Hospital twice and to Ayurveda Doctor once. The victim was mentally shattered. The victim is ready for termination of pregnancy. The report stated that as the victim desires termination of pregnancy, MTP can be done subject to medical fitness. Expenses for MTP can be provided from the Relief Fund.
7. The writ petition was filed on 13.05.2025. On 16.05.2025, this Court directed the Government Pleader to get instructions as to the date on which the victim is to be presented before the Medical Board for conducting physical and psychological evaluation. On 19.05.2025, the 2025:KER:37604 W.P.(C) No.18429/2025 :6: Government Pleader submitted that physical and psychological evaluation can be conducted on 21.05.2025 before the Superintendent of Government Medical College, Kottayam. Accordingly, the petitioner was directed to produce the minor daughter before the Board on 21.05.2025.
8. The Medical Board was conducted in the Department of Obstetrics and Gynecology, SAT Hospital, Medical College, Thiruvananthapuram. The Board consisted of nine Experts/Specialists. The Board observed that the gestational age is 29 weeks and 5 days. Examination revealed conscious, oriented person with anxious mood, no depressive/suicidal ideas / psychotic features. The victim expressed her wish to terminate the pregnancy. After imparting psycho education, the mother and the victim was informed of the procedure for termination of pregnancy and the chance of survival of the new born was made known to them. The Board observed that the patient and her mother remained ambivalent regarding the decision to terminate the 2025:KER:37604 W.P.(C) No.18429/2025 :7: pregnancy.
9. The Board observed that they are ethically and legally bound to give full intensive care if baby is delivered at this point of time. The unit survival for this gestation is 80%. The Gynecology opinion was that the options of terminating pregnancy at 30 weeks with higher chance of need for cesarean section. Mental status of assessment was done by Psychiatrist. Neonatal salvageability of new born was explained to the mother and the victim.
10. The conclusions of the Board are as follows:
Conclusion:
17 years and 9 months old primi gravida reported to Medical College at 29 weeks 5 days on 19.05.2025. Medical Board convened on 20.05.2025.
She is a primi gravida 29 weeks 6 days.
At present there is no pregnancy complication. Psychological evaluation by Psychiatrist reveals occasional anxiety symptoms but no pervasive, depressive symptoms or suicidal ideas.
The termination of pregnancy at this gestational age has increased chances of failed induction and thereby cesarean section and has a neonatal survival of 80%, but with the risk of prematurity and chances of long term developmental delay.
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11. The victim, who is a minor, was impregnated without her will or consent. The victim belongs to an economically very backward family. The victim is a student. The whole family members including the victim is in a state of shock over the turn of events. The victim is not mentally prepared to accept the state of affairs and deliver the child.
12. As the report of the Medical Board indicated that the patient and her mother remained ambivalent regarding the decision to terminate the pregnancy, the counsel for the petitioner was specifically required to contact the mother and the child and ascertain the position. The counsel for the petitioner stated that on contacting them, they have informed that the victim and the family desires to terminate the pregnancy at the earliest.
13. For Medical Termination of Pregnancy, though the maximum period of length of pregnancy allowed is 20 weeks, in appropriate cases, if there is sufficient and satisfying circumstances, termination can be allowed even 2025:KER:37604 W.P.(C) No.18429/2025 :9: thereafter. The victim in this case is in good health.
14. I have considered the judgment of the Hon'ble Apex Court in Murugan Nayakkar v. Union of India [2017 SCC OnLine SC 1902] and the judgment of this Court in Ms. X v. State of Kerala [2016 (4) KLT 745]. The victim in this case has suffered alleged rape and sexual abuse. Taking into consideration the age of the petitioner and the trauma she has suffered and the agony the victim is going through, I am of the firm view that termination of pregnancy should be allowed. This is especially so because the victim is neither mentally prepared to accept the state of affairs and is not prepared to deliver the child.
15. In the facts and circumstances of the case, the writ petition is disposed of with the following directions:
(i) On the production of a copy of this judgment, the 4th respondent shall take immediate measures for constituting a medical team, to conduct the termination of the victim's pregnancy.
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(ii) The petitioner shall file an
undertaking, authorising the 4th respondent to conduct the termination of pregnancy at the petitioner's own risk.
(iii) If the foetus is born alive, the Hospital shall give all necessary assistance, including incubation either in that Hospital or any other Hospital, to ensure that the foetus survives. The baby shall be offered the best medical treatment.
(iv) If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.
Sd/-
N. NAGARESH, JUDGE aks/29.05.2025