Kerala High Court
Mohammed Nashoor K.N.Aged 27 Years vs The State Of Kerala on 14 October, 2019
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941
WP(C).No.26890 OF 2019(I)
PETITIONERS:
1 MOHAMMED NASHOOR K.N.AGED 27 YEARS
S/O. ABDUL SALAM K., SHERRQI, KARINKALLATHANI,
CHETHALLUR P.O., 678 583, PALAKKAD DISTRICT.
2 LUBHNA NASHOOR,W/O. MOHAMMED NASHOOR K.N.
PALAPPETTY (P.O), PIN - 679 579, PONNANI TALUK,
MALAPPURAM DISTRICT, NOW RESIDING AT SHERRQI,
KARINKALLATHANI, CHETHALLUR(P.O.), 678 583, PALAKKAD
DISTRICT.
BY ADVS.
SRI.JAMSHEED HAFIZ
T.S.SREEKUTTY
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF
HEALTH AND MEDICINE, THIRUVANANTHAPURAM - 695 001.
2 CENTRE FOR INFERTILITY MANAGEMENT AND ASSISTED
REPRODUCTION (CIMAR)
5TH FLOOR, EDAPPAL HOSPITAL PVT. LTD., MALAPPURAM
DISTRICT - 679 576.
3 EDAPPAL HOSPITAL PVT.LTD, EDAPPAL P.O.
MALAPPURAM DISTRICT, PIN-679576
4 THE CHIEF MEDICAL OFFICER,
GYNAECOLOGY AND OBSTERICS DEPARTMENT, EDAPPAL
HOSPITAL, MALAPPURAM DISTRICT, PIN-679 576.
5 ADDL.R5. THE DISTRICT LEVEL COMMITTEE,
UNDER THE MEDICAL TERMINATION OF PREGNANCY ACT,
KOZHIKODE.
[SUO MOTU IMPLEADED AS ADDL.R5 AS PER ORDER DATED 10-
10-2019 IN WP(C)].
SRI. VINOD, GOVT. PLEADER FOR R1 & R5
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No. 26890 of 2019 2
JUDGMENT
The petitioners are husband and wife. The second petitioner is undergoing 24th week of pregnancy. It is stated by the petitioners that they are advised by the doctors who are treating the second petitioner that her foetus would not survive after delivery. The petitioners, therefore, wanted to medically terminate the pregnancy of the second petitioner. It is stated that as the pregnancy passed the stage of 20 weeks prescribed in terms of the Medical Termination of Pregnancy Act, 1971 (the Act), the doctors are undertaking the termination procedure. The petitioners, therefore, seek appropriate directions in this regard.
2. In terms of the interim order passed in this matter on 10.10.2019, this Court directed the District Level Committee under the Medical Termination of Pregnancy Act, Kozhikode to cause the second petitioner to be examined by a Medical Board and submit a report as to her physical condition as also the condition of the foetus. In terms of the said interim order, the Superintendent of the Government Medical College, Kozhikode has reported that the foetus is suffering from Hypoplastic Left Heart Syndrome (HLHS). It is also reported that such foetuses would normally die during the pregnancy itself and that if they survive, they may not live. It is further reported that the termination of the pregnancy at this stage carries a risk as regards the WPC No. 26890 of 2019 3 life of the second petitioner in rare cases.
3. The learned counsel for the petitioners submitted that since it was found that the foetus is suffering from serious abnormalities, the second petitioner is willing to undergo the procedure for termination of pregnancy at her risk. The right of the mother to terminate the pregnancy medically even after the period of 20 weeks, if the foetus is suffering from serious deformities and abnormalities has been recognised by courts (See Shaikh Ayesha Khatoon v. Union of India, 2018 SCC onLine Bom 3034). Shaikh Ayesha Khatoon is a case where the court permitted termination of the pregnancy at 27th week.
4. In the circumstances, having regard to the report of the Medical Board referred to above as also the stand taken by the petitioners that the second petitioner is prepared to undertake the procedure at her risk, I deem it appropriate to permit the second petitioner to undergo the procedure for termination of the pregnancy.
In the result, the writ petition is allowed and the second petitioner is permitted to undergo the procedure for termination of the pregnancy at her own risk and consequences at a medical facility of her choice.
Sd/-
P.B.SURESH KUMAR
pkk JUDGE
WPC No. 26890 of 2019 4
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF MARRIAGE
DATED 14.01.2019.
EXHIBIT P2 A TRUE COPY OF THE MEDICAL CERTIFICATE
ISSUED BY DR. K.K.GOPINATHAN, M.D., DGO,
DATED 07.10.2019.